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Sentenced for a Crime the Government Did Not Prove: Jones v. United States and the Constitutional Limitations on Factfinding by Sentencing Factors Rather than Elements of the Offense
Get PDFThe tension between the two principles set out above is an unresolved dilemma for the United States Supreme Court. On the one hand, not every fact relevant to sentencing a criminal defendant warrants the Constitution\u27s full criminal procedure protections. On the other hand, if those protections apply only to the facts selected by the legislature to determine guilt or innocence, the sentencing proceeding may overwhelm the trial in importance because the sentencing facts will determine the defendant\u27s fate to a far greater extent. Justice Scalia described this tension bluntly: Suppose that a State repealed all of the violent crimes in its criminal code and replaced them with only one offense, knowingly causing injury to another, bearing a penalty of 30 days in prison, but subject to a series of sentencing enhancements authorizing additional punishment up to life imprisonment or death on the basis of various levels of mens rea, severity of injury, and other surrounding circumstances. Could the state then grant the defendant a jury trial, with requirement of proof beyond a reasonable doubt, solely on the question whether he knowingly caused injury to another, but leave it for the judge to determine by a preponderance of the evidence whether the defendant acted intentionally or accidentally, whether he had used a deadly weapon, and whether the victim ultimately died from the injury the defendant inflicted? 3 How does the Constitution resolve this tension? The decisions of the Court have yet to provide an answer. The cases have, however, set out the basic framework for analyzing the constitutional question. The Court has called certain facts the elements of a criminal offense. Elements require all of the Constitution\u27s procedural protections, particularly the government\u27s beyond a reasonable doubt burden of proof and trial by jury. The Court considers other facts to be sentencing factors. Sentencing factors are factual determinations that do not affect the defendant\u27s guilt or innocence, but only the severity of the sentence imposed. The presence of a sentencing factor could increase or decrease the sentence, or affect it in another way, such as by triggering a mandatory minimum sentence. The Constitution\u27s strict procedures for elements of the offense do not apply, by definition, to sentencing factors, which may be determined, for example, by a preponderance of the evidence or by the judge alone. We would expect the Court normally to defer to the legislature on whether a given factual determination is an element of the offense or a sentencing factor for the offense. The question that the tension illustrated by Justice Scalia\u27s hypothetical raises, however, is whether the Constitution ever places a limit on the legislature\u27s power to define a factual determination as an element or as a sentencing factor. Can a fact have such importance that it constitutionally must be considered necessary to the crime, rather than merely relating to the severity of the punishment? The Court\u27s dilemma is that the constitutional answer is unclear, and the possibility of abuse by the legislature is real. In Jones v. United States, a case argued in the 1998 Term, the Court had the opportunity to confront and resolve the elements/sentencing factors constitutional question. With this recent constitutional issue, this note supplements a long history of articles on criminal law, procedure, and sentencing in Law and Contemporary Problems. The note argues that the Constitution does restrict the power of the legislature by requiring that certain facts be proved as elements of the offense. Part II reviews the historical evolution of the elements/sentencing factors constitutional question. Part III describes seven proposed tests the Court might adopt as solutions to the constitutional dilemma. Part IV turns to the text of the Constitution itself, particularly the provisions relating to trials for crimes. Part V evaluates the proposed constitutional tests to determine which provides the best definition of a crime in the text as a matter of constitutional interpretation. Part VI describes the Court\u27s missed opportunity in Jones to adopt the test proposed by Justice Scalia, which defines a crime for this constitutional purpose as the factual findings used to determine the defendant\u27s maximum possible sentence. The note concludes that this test is the rule the Court should adopt for resolving the elements/sentencing factors constitutional question.
Obtaining Relief from Federal Firearms Disabilities: Did Congress Really Suspend the Relief Available to Felons Through Appropriations Acts?
Get PDFHumanitarian Intervention by Regional Actors in Internal Conflicts: The Cases of ECOWAS in Liberia and Sierra Leone
Get PDFBeyond Name, Rank and Serial Number: No Comment Job Reference Policies, Violent Employees and the Need for Disclosure-Shield Legislation
Get PDFNo Penetration - and It\u27s Still Rape
Get PDFThis Article explores the penetration requirement and considers the following: (1) whether it is a male or reasonable person understanding of what is so violative of a woman\u27s body that it should be referred to as rape; and (2) what punishment should be imposed. This Article explores problems raised by the foreplay issue. Understanding that rape is not sex, in order to deem a violation, one must understand how a violation is characterized. In addition to defining what is violative, the foreplay issue raises questions about characterizations from a male perspective concerning when a male is placed on notice by the female that she either no longer wishes to engage in the activity and that he should stop or that this is unwelcome conduct altogether and that he should stop. The focus has been on the male\u27s notice rather than the desires of the female to stop the conduct. An additional problem is that the crime of rape may be lessened if penetration is deemed insignificant. If penetration, a male prerequisite for the crime of rape, is not used to determine severity of the violation, then there may be some concern that stiff penalties may no longer be imposed, that is, if men comprehend the violation, then it is not a violation. If stiff penalties are not imposed, then there could be a significant increase in rapes. Part I of this Article discusses how society defines criminal conduct and why society punishes this type of conduct. Part II explores the punishment theory, with regard to rape, from the woman\u27s perspective of pain and pleasure. This Article then compares what is pleasurable for women, and from this perspective, what should be punishment for conduct that is deemed violative from the woman\u27s point of reference of pain and pleasure. Part III addresses some solutions and perhaps, redirection in defining and punishing the crime of rape. Finally, Part IV concludes that the severity of the invasion into the private, protected sphere of a woman\u27s body should be defined in women\u27s terms and punished accordingly
Rethinking Citizen Suits for Past Violations of Federal Environmental Laws: Recommendations for the Next Decade of Applying the Gwaltney Standard
Get PDFCitizen suits under the Clean Water Act are more prevalent than those filed under any other federal environmental law that authorizes citizen suits. Not surprisingly, one of the most important cases in environmental citizen suit jurisprudence, Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,arose in a Clean Water Act citizen suit. The Supreme Court\u27s decision in Gwaltney is perhaps the most extensively analyzed yet most frequently misunderstood standard in citizen suit jurisprudence under federal environmental laws.
Part I of this article examines the structure and underlying policies of the citizen suit provision of the Clean Water Act. Part II reviews the history and ultimate resolution of the Gwaltney case. Part III discusses the various approaches that courts have adopted in Clean Water Act cases to understand and apply the Gwaltney good faith allegation of an ongoing violation standard. Part IV addresses the application of the Gwaltney standard to citizen suits under RCRA, CERCLA, and the Clean Air Act. Part V analyzes the judicial misapplication of the Gwaltney standard to EPCRA citizen suits for past violations. The article concludes that the Gwaltney standard should be legislatively revised to incorporate the modified by parameter approach11 to evaluating citizen suits for past violations under the Clean Water Act
