STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES APPRENDI, JR., DEFENDANT-APPELLANT.
Supreme Court of New Jersey
June 24, 1999
731 A.2d 485
Argued October 13, 1998
As modified, the judgment of the Appellate Division is affirmed.
For modification and affirmance—Chief Justice PORITZ and Justices HANDLER, POLLOCK, O‘HERN, GARIBALDI, STEIN and COLEMAN—7.
Opposed—None.
Lisa Sarnoff Gochman, Deputy Attorney General, argued the cause for respondent (Peter Verniero, Attorney General of New Jersey, attorney).
The opinion of the Court was delivered by
O‘HERN, J.
An issue that is surfacing with increasing frequency in criminal cases is whether a given portion of a statute constitutes an element of an offense or, instead, is a sentencing provision. The answer determines whether the factual determinations for which the provision calls are to be made by the fact-finder or the sentencer, and whether the reasonable doubt standard of proof must be applied.
[67 U.S.L.W. 3289, Vol. 67, No. 16 (Nov. 3, 1998).]
This appeal presents such a question. The case concerns the constitutionality of one provision of New Jersey‘s hate crime laws. With certain exceptions, the provision allows enhanced sentencing in any case in which “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.“.
I
Early on the morning of December 22, 1994, police arrested defendant at his home in Vineland for the shooting of a neighbors’
The police arrived approximately twenty minutes later and arrested defendant at his home. Acting on a later-acquired search warrant, police found various weapons at defendant‘s home, including a .22-caliber rifle, with laser sights and a silencer attached, and an anti-personnel bomb. During the police questioning, defendant admitted that he had fired four or five rifle shots into the home. Defendant gave a later statement in which he admitted that although “he does not know the victims or the family, but because they are black in color he does not want them in the neighborhood....” He said that he was “just giving them a message that they were in his neighborhood.”
A Cumberland County grand jury returned a twenty-two-count indictment against defendant. It included charges of possession of a firearm for an unlawful purpose, possession of a prohibited weapon, attempted murder, attempted aggravated assault, harassment, and possession of a destructive device.
Defendant negotiated a plea agreement under which he pled guilty to three of the counts. Two counts included the second-degree crimes of possessing a firearm for an unlawful purpose on September 24 and December 22, 1994. The third involved unlawful possession of a prohibited weapon, an anti-personnel bomb. Under the terms of the plea, any sentence imposed on the prohibited weapon count was to be concurrent with the sentences to be imposed on the two unlawful purpose counts. The plea agreement left the determination of the sentence on these two counts to the discretion of the court. In addition, the State reserved the right to make an application under the hate crimes law for imposition of an extended sentence on one count of the
At a hearing prior to sentencing, defendant offered the testimony of a psychologist who had evaluated defendant‘s mental state in order to establish the motive underlying the crimes. The witness shed light on certain psychological abnormalities of defendant. His condition did not rise to a level sufficient to establish a diminished capacity or insanity defense under
“purpose to intimidate ... because of race, [or] color” is an element of the crime when that purpose raises the sentence for the crime.... The State‘s power to define away the elements of the crime cannot extend, as the majority holds, to defining away the actor‘s culpable purpose [when it served to enhance his sentencing.]
Defendant appealed as of right under
II
A.
In order to understand this case, it is necessary to understand its background. On May 13, 1991, Steven Vawter and David Kerns spray-painted a Nazi swastika and words that seemed to spell “Hitler rules,” on a synagogue in Rumson, New Jersey. On the same day, they spray-painted a satanic legend on the driveway of a nearby Roman Catholic church. The police charged Vawter and Kerns with violations of sections 10 and 11 of New Jersey‘s hate crime statute.
On August 23, 1991, David Mortimer and two juveniles spray-painted hate-filled words on the garage door of a Pakistani family‘s home in East Brunswick, New Jersey. Police charged Mortimer with two counts of ethnic harassment under
Today nearly every state, using varied approaches, has enacted legislation to punish acts of bias-motivated crime. Some states created new crimes of bias-motivated violence or intimidation. Others created new crimes that consist of the bias-motivated commission of a crime that already exists in [a] statute. Other states provided for enhanced penalties where commission of a crime was motivated by bias, or chose to treat the actor‘s bias motivation as an aggravating circumstance in sentencing.
[Camilla Nelson, Hate Crime on the Internet, 1997 SPG NAAG Civ. Rts. Update 1, 2 (1997).]
New Jersey was one of the first states to adopt an anti-hate crime law, L. 1981, c. 282. In generic terms, the 1981 law outlawed the burning of crosses or placing of swastikas on public or private property with a purpose to terrorize others by threats of violence (Section 10) and outlawed the placing of such graffiti on houses of worship or cemeteries (Section 11).
In 1990, the Legislature expanded the coverage of our hate crime laws by enacting the “Ethnic Intimidation Act,” L. 1990, c. 87. That law (1) made the disorderly persons offense of simple assault a crime of the fourth degree if the actor had a biased purpose in selecting the victim,
For convenience, we refer in this opinion to the several provisions of our hate-crime statute as Section 4d, Sections 10 and 11, Section 12e, and Section 44-3(e).
In signing the legislation, Governor Florio stated:
From now on, the law in New Jersey will be intolerant of ethnic intimidation. Those who commit these crimes of hate are going to face additional charges. From now on, hate crimes will be serious crimes, whether it‘s a phone call in the middle of the night or vandalism that leaves hateful symbols in its wake or racial slurs.
[Wisam Ali, Florio extends term for ‘crimes of hate’, Home News, Aug. 10, 1990.]
B.
While Vawter and Mortimer were pending, two other cases were working their way through the courts of other states. In one case, white teenagers had burned a cross on the fenced-in yard of a black family in St. Paul, Minnesota. R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Convicted under St. Paul‘s hate crime ordinance, the youths appealed to the United States Supreme Court. In R.A.V., supra, 505 U.S. at 384-85, 112 S.Ct. at 2543-44, 120 L.Ed.2d at 318-19, the Supreme Court held that when a state regulates unprotected expression (fighting words), it cannot discriminate on the basis of content or viewpoint. Under that rationale, a state may prohibit the expression of fighting words (threats, harassment, etc ...) but if a state attempts to prohibit only those fighting words that contain racist hate speech, the regulation will be subject to strict scrutiny and may be found to be under-inclusive.
States breathed a collective “sigh of relief” when some of the constitutional concerns regarding hate crime statutes were alleviated by the Court‘s decision one term later in Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). George G. Size & Glenn R. Britten, Is There Hate Speech?: R.A.V. and Mitchell in the Context of First Amendment Jurispru-
It is not perfectly clear however, in what sense the hate crime sentence enhancer upheld in Mitchell was directed at conduct, whereas the St. Paul ordinance struck down in R.A.V. was directed at speech. Alan E. Brownstein, Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion Protests, 29 U.C. Davis L. Rev. 553, 560 (1996). Both ordinances appeared to have been “directed at bias-motivated behavior.” Id. at 560. A more cynical view may be that the Supreme Court “shrugged off” without making a “full retreat” from the position that it had taken in R.A.V. Robert R. Riggs, Punishing the Politically Incorrect Offender Through “Bias Motive” Enhancements: Compelling Necessity or First Amendment Folly?, 21 Ohio N.U. L. Rev. 945, 950 (1995). “Ultimately, stare decisis leaves no alternative but to follow the complex footsteps of Vawter and R.A.V.” Lorri R. Forter, The Role of Precedent in Hate Crime Decisions, 5 Temp. Pol. & Civ. Rights L. Rev. 243, 253 (1996).
C.
Consistent with the principles of the two cases, our Court has struck down the features of the New Jersey hate-crime law that
In Vawter, Vawter and Kerns had been charged under Sections 10 and 11 of the 1981 law. The Court found that those Sections represented content-based restrictions that were unconstitutional because they punished only threats or displays of graffiti expressive of certain beliefs, not all threats. Vawter, supra, 136 N.J. at 75, 642 A.2d 349. The Court concluded that in adopting those sections, the Legislature was “obviously expressing its disagreement with the message conveyed by the conduct that the statutes regulate.” Id. at 68, 642 A.2d 349. The Court “reluctantly” based its decision on the Supreme Court‘s decision in R.A.V., supra. Id. at 70, 642 A.2d 349. In his separate opinion in Vawter, Justice Stein perceived the flawed logic of R.A.V.‘s “underbreadth” analysis. Id. at 98, 642 A.2d 349 (Stein J., concurring). He viewed Sections 10 and 11 as step-by-step legitimate responses to “the most virulent and dangerous formulation of bias-motivated incitements to violence.” Ibid.
Mortimer, on the other hand, had been charged with one count of harassment under
Although it is true that in Wisconsin v. Mitchell, the jury found that the defendant had intentionally selected his victim based on race, nothing in Mitchell or Mortimer alerted the Legislature to the concern that the penalty-enhancing provisions of its hate crime law would be unconstitutional because a judge, not a jury, found the biased purpose to intimidate by a preponderance of the evidence. The question is—when does due process require jury findings beyond a reasonable doubt.
III
A.
The Due Process Clause of the Fourteenth Amendment requires that the essential elements of a crime be proven beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). There is, however, no litmus test or unerring “constitutional calculus” for determining what is an essential element of a crime.
(1)such conduct or (2)such attendant circumstances or (3)such a result of conduct as
(a) is included in the description of the forbidden conduct in the definition of the offense;
(b) establishes the required kind of culpability;
(c) negatives an excuse or justification for such conduct;
(d) negatives a defense under the statute of limitations;
(e) establishes jurisdiction or venue.
These definitions do not explicitly cover Section 44-3(e).
Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508, 522 (1975), held that under a Maine statute that defined the offense of first-degree murder in terms of the absence of heat of passion, due process required the State to bear the
The primary concern of the Supreme Court in this series of cases has been whether “states would circumvent due process by redefining the essential elements of guilt as affirmative defenses or as sentencing factors.” State v. Krantz, 241 Mont. 501, 788 P.2d 298, 304 (1990) (emphasis added), cert. denied., 498 U.S. 938, 111 S.Ct. 341, 112 L.Ed.2d 306 (1990). Because the Supreme
B.
We begin by stating the obvious. Merely because the Legislature has placed the hate-crimes enhancer within the sentencing provisions of the Code of Criminal Justice does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense. Were that the case, the Legislature could just as easily allow judges, not juries, to determine if a kidnaping victim has been released unharmed. See State v. Federico, 103 N.J. 169, 510 A.2d 1147 (1986) (requiring State, in order to establish first-degree kidnaping offense, to prove beyond a reasonable doubt that victim was not released unharmed).1
Second, the constitutional question may not be avoided by characterizing a biased “purpose to intimidate” as a “motive“. Of course it is true that motive is not an essential element of a crime. But in ordinary circumstances proof of motive does not increase the penal consequences to an actor. Whether one kills out of jealousy or for pecuniary gain does not increase the non-capital sentence for the crime. Whether one steals to put bread on a table or to feed a drug habit does not increase the sentence for theft. A finding under Section 2C:44-3(e) of a “motive” to intimidate because of the victim‘s race or ethnicity has vastly different consequences than in regular criminal proceedings. Labels do not afford an acceptable answer. Indeed, the exclusion of the words “at least in part with ill will, hatred or bias toward the victim”
Our existing precedent does not control the disposition of this case. Although Mortimer, supra, assumed in the prosecution of a Section 4 harassment offense that evidence of a biased purpose would be “introduce[d] ... at trial” as part of the “required state of mind or mens rea” under the statute, 135 N.J. at 531, 534, 641 A.2d 257, the Court did not address the Section 43 sentence enhancer. Similarly, State v. Camacho, 153 N.J. 54, 56-57, 707 A.2d 455 (1998), posed the question for resolution in the case as “whether intent to use a firearm against the person, as opposed to the property, of another is an element” of possession of a weapon for an unlawful purpose entitling a defendant to a jury trial on that issue or was instead a sentencing factor for the court. Camacho did not explore the underlying question of the constitutional limits on allocating sentencing factors to a judge or jury.
C.
Any disposition that we make is necessarily tentative in the sense that the final word on this subject will have to come from the United States Supreme Court. The recently enacted amendments to the federal sentencing guidelines now include a hate crime penalty enhancement provision that applies to all federal crimes. See
[i]f the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person....
[U.S.S.G., § 3A1.1.]
Although the federal hate crimes law requires the jury to resolve the issue of biased purpose as part of any trial, the law allows, in
In its most recent treatment of the subject, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1222, 143 L.Ed.2d 311 (1999), the Court, in order to avoid an interpretation that would pose “grave and doubtful constitutional questions,” held as a matter of statutory construction, not constitutional requirement, that provisions of the federal carjacking statute that established higher penalties to be imposed when the offense results in serious bodily injury or death constituted additional essential elements of the offense. As essential elements of an offense, these factual matters must be decided beyond a reasonable doubt by a jury, not a judge. In re Winship, supra, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. In the course of its opinion in Jones, the Court stated that
under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Government‘s reading of the [carjacking] statute rises only to the level of doubt, not certainty.
[Jones, supra, 526 U.S. at 1224 n.6, 119 S.Ct. at 1224 n.6, 143 L.Ed.2d 311.]
The five members of the majority in Jones included one member who had joined a different formulation in the Supreme Court‘s 1998 opinion, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).
Because the language in Jones was not essential to its holding, and because the Court did not expressly overrule the Almendarez-Torres formulation, we believe that case still states the ratio-
In assessing petitioner‘s claim [that a jury not a judge would have to establish beyond a reasonable doubt that Almendarez had previously entered the country illegally], we have examined McMillan to determine the various features of the case upon which the Court‘s conclusion arguably turned. The McMillan Court pointed out: (1) that the statute plainly “does not transgress the limits expressly set out in Patterson,” id., at 86, 106 S.Ct., at 2416; (2) that the defendant (unlike Mullaney‘s defendant) did not face “a differential in sentencing ranging from a nominal fine to a mandatory life sentence,” 477 U.S., at 87, 106 S.Ct., at 2417 (quoting Mullaney, 421 U.S., at 700, 95 S.Ct., at 1890); (3) that the statute did not “alte[r] the maximum penalty for the crime” but “operates solely to limit the sentencing court‘s discretion in selecting a penalty within the range already available to it,” 477 U.S., at 87-88, 106 S.Ct., at 2417; (4) that the statute did not “creat[e] a separate offense calling for a separate penalty,” id., at 88, 106 S.Ct., at 2417; and (5) that the statute gave “no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense,” but, to the contrary, “simply took one factor that has always been considered by sentencing courts to bear on punishment ... and dictated the precise weight to be given that factor,” id., at 88, 89-90, 106 S.Ct., at 2417, 2418.
[Id. at —, 118 S.Ct. at 1230, 140 L.Ed.2d at —.]
With but one exception, that the Section 44-3(e) finding does “alter the maximum penalty for the crime,” the hate-crimes enhancer resembles McMillan in respect of all of the other factors. The statute plainly does not transgress the limits set out in
On the contrary, the Legislature simply took one factor that has always been considered by sentencing courts to bear on punishment and dictated the weight to be given that factor. A finding of a biased motive or purpose to intimidate, like the factor of recidivism in the Almendarez-Torres analysis, is a very traditional sentencing factor.
Altering the maximum penalty in and of itself has been held not to change the constitutional calculus. In State v. Krantz, supra, 788 P.2d at 303, the Montana Supreme Court found that its “weapon enhancement” sentencing statute did not offend due process even though the determination of weapon usage “could lead to a punishment beyond the maximum provided for the underlying crime.” It reasoned that the Montana weapon enhancement statute does not create a separate crime or element of
We agree with the concurring member of the Appellate Division that, like our Graves Act decisions, this decision will pose no threat to constitutional liberties. Almost invariably there is no real doubt about the factual issue that determines the sentencing decision. In State v. White, 98 N.J. 122, 484 A.2d 691 (1984), the underlying conviction of robbery in the first degree was based on the presence of a firearm. The legal issue was whether an accomplice who did not actually possess the weapon could be sentenced to a Graves Act sentence. In State v. Stewart, 96 N.J. 596, 477 A.2d 300 (1984), the defendant admitted that there were firearms in the truck that he was using at the time of the robbery, but contended that such constructive possession, as opposed to use, did not warrant a Graves Act sentence. In like fashion, we believe that in cases like Vawter (had the defendants been charged other than under Sections 10 & 11) and Mortimer, there is rarely any doubt whether the defendants committed the crimes with the purpose of intimidating the victim on the basis of race or ethnicity. In addition, enhanced sentencing under Section 44-3(e) is limited to cases in which there is said to be a “compelling State interest” to vindicate constitutional rights to be free of invidious discrimination. People v. MacKenzie, 34 Cal.App.4th 1256, 40 Cal.Rptr.2d 793, 800-01 (Ct.App.1995) (citing Mitchell, supra, 508 U.S. at 488, 113 S.Ct. at 2201, 124 L.Ed.2d at 447).
Amicus Public Defender has prudently argued that the Court should hesitate to endorse this sentencing scheme because the concept (removing the elements of a crime from its substantive definition and including them in the sentencing provisions of the Code) could undermine traditional rights to trial by jury and the due process of law. There should be no mistake that the Court would not permit the Legislature (even were it so inclined) to remove traditional mens rea or grading factors (such as the absence of passion/provocation in a murder) from the substantive
We acknowledge that Florida has interpreted its similarly-worded statute to require a jury to find as a predicate to sentencing that the crime was bias motivated. State v. Stalder, 630 So.2d 1072 (Fla.1994). We believe that resolution poses as many problems as it solves. To allow generally in criminal trials proof of the biases of the accused creates an added risk of prejudice for defendants. It would open trials to evidence of former acts of bias on the part of the actor. Ayers v. State, 335 Md. 602, 645 A.2d 22 (Md.1994) cert. denied, 513 U.S. 1130, 115 S.Ct. 942, 130 L.Ed.2d 886 (1995); but see Mortimer, supra, 135 N.J. at 538, 641 A.2d 257 (cautioning that as condition of admission of other acts of bias, the nexus between incidents must be strong). It would inject into the trial of cases issues of racial or ethnic bias that have a potential to inflame a jury. State v. Crumb, 277 N.J.Super. 311, 321, 649 A.2d 879 (App.Div.1994), certif. denied., 153 N.J. 215, 708 A.2d 66 (1998). In Crumb, supra, because “the bias count ... may, if tried with the other counts, skew decisions regarding admission of evidence,” the court severed the bias count from the trial. Ibid. In State v. Carter, 91 N.J. 86, 449 A.2d 1280 (1982), the Court narrowly affirmed the murder conviction of defendants, holding that the admission of evidence tending to show that their actions were motivated by racial revenge was not so prejudicial as to outweigh its probative value.
IV
To sum up, as the dissent observes, post at 50, 731 A.2d at 511, a statutory argument can be made that the actor‘s biased purpose to intimidate establishes a required kind of culpability, an element
“To declare a statute unconstitutional is a judicial power to be delicately exercised.” Harvey v. Essex County Bd. of Freeholders, 30 N.J. 381, 388, 153 A.2d 10 (1959). “[A] legislative act [should] not be declared void unless its repugnancy to the constitution is clear beyond reasonable doubt.” Gangemi v. Berry, 25 N.J. 1, 10, 134 A.2d 1 (1957). The claim that the statute here conflicts with a constitutional right is far from clear beyond a reasonable doubt. On balance, we find that in this case the “constitutional calculus” of McMillan sustains the statutory scheme. The hate-crime enhancer obviously requires a delicate balance of constitutional rights. We do not punish thought. We do punish more severely crimes involving particularly vulnerable victims.3 We are certain that the law will not be abused. The
There is one troubling aspect to this case. The trial court did not articulate the current statutory standard in sentencing. At the time of sentencing, although counsel was aware of the Mortimer decision, court and counsel were seemingly unaware of the then recent amendment to Section 44-3(e) that had excised, on the basis of Mortimer, the offending language concerning one having acted “at least in part” with ethnic bias or ill will in committing the crime. Although the issue of the court‘s articulation of the sentence is not before us on the basis of the dissent below, we are satisfied that no court could but conclude that the actor‘s purpose was, in fact, to intimidate the victims because of their color. The only question before the trial court was whether defendant‘s mental state, subjected to alcoholism, was such that he could not form the biased purpose. The trial court‘s review of the evidence
If a defendant has committed a first-degree crime and selected a victim for reasons of bias, the law provides ample remedies. See State v. Crumb, 307 N.J.Super. 204, 704 A.2d 952 (App.Div.1997), certif. denied, 153 N.J. 215, 708 A.2d 66 (1998) (imposing sentence of life with a thirty-year parole ineligibility period for biased killing).
In addition, we believe the sentence imposed was fair and just. Defendant was exposed to three charges of attempted murder and three charges of attempted aggravated assault with a weapon. If convicted of all counts he could have faced life in prison. His plea bargain exposed him to a sentence of thirty-five years with a twelve-year ineligibility period. (Although the plea form recites a maximum of ten years on each weapon count, it was understood that one of these sentences could be enhanced.) Had unenhanced sentences on the two separate unlawful possession of weapons offenses been made consecutive, defendant would have been exposed to twenty years’ imprisonment with six years of parole ineligibility. The sentence imposed was twelve years’ imprisonment with four years of parole ineligibility. A satisfactory plea bargain afforded a fair and just resolution of the matter to the State and to defendant. We would not disturb the sentence in this case.
The judgment of the Appellate Division is affirmed.
STEIN, J., dissenting.
In In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), the United States Supreme Court explicitly held that “the Due Process Clause protects the accused [in a criminal proceeding] against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” This appeal requires this Court to apply the holding of In re Winship for the first time to one of the sentencing enhancement provisions of the Code of Criminal Justice,
In my view, the critical determination required by the statute, that a defendant‘s mental state in committing the subject offense encompassed a purpose to intimidate because of race, necessarily involves a finding so integral to the charged offense that it must be characterized as an element thereof. Moreover, the significantly increased sentencing range triggered by that statute also persuades me that the finding of a purpose to intimidate must be treated as a material element of a defendant‘s crimes, and that the material element must be found by a jury beyond a reasonable doubt. Accordingly, I conclude that
I
Defendant pled guilty to two counts of a twenty-two count indictment charging him with the second-degree offense of possession of a firearm for the purpose of using it unlawfully on September 24 and December 22, 1994,
The court shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime, ... to an extended term if it finds, by a preponderance of the evidence, the grounds in subsection e. ...
e. The defendant in committing the crime acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity.
[Ibid. But see L. 1995, c. 211, § 3, eff. Aug. 14, 1995 (amending text of statute to delete phrase “at least in part, with ill will, hatred or bias toward, and“).]
The facts giving rise to defendant‘s indictment indicated that on September 24 and December 22, 1994, defendant fired shots into a home in his neighborhood in Vineland that was occupied by an African-American family. The September incident involved a single bullet shot through the window of a bedroom in which a nine-year-old child slept. On December 22, 1994, defendant fired eight rounds from a rifle through the front door of the home. Because defendant‘s truck was observed driving away from the victims’ house immediately after the shooting in December, police officers proceeded to defendant‘s home and took him into custody. After Miranda warnings were administered, defendant allegedly told police that he shot at the house because African-Americans lived there, stating that “he knew that there were black people who lived at that residence because he‘s seen them out in the yard. And he was giving them a message that they were in his neighborhood.”
At his plea hearing defendant admitted that he shot at the victims’ home on September 24, 1994 and December 22, 1994, and that he did so “for an unlawful purpose.” He retracted that admission during the hearing conducted to determine whether he was subject to an extended term because he committed the crimes while acting with bias and to intimidate the victims because of their race.
The court found that defendant committed the offenses while acting with bias and a purpose to intimidate the victims because of their race. The court sentenced defendant to twelve years’ imprisonment with four years’ parole ineligibility on one of the counts of possession of a firearm for an unlawful purpose, and to a seven-year term with three years’ parole ineligibility on the other charge of possession of a firearm for an unlawful purpose. On the charge of possession of an anti-personnel bomb, defendant was sentenced to three years’ imprisonment. All sentences were concurrent. The court observed that defendant‘s sentence to less than the presumptive term for first-degree crimes was based on testimony indicating that he suffered from psychological problems and that his unlawful behavior was aberrational.
A divided panel of the Appellate Division upheld the constitutionality of
II
Not only is the due process issue before us one of first impression for this Court, but its resolution is neither dictated nor clearly forecast by the handful of United States Supreme Court precedents that bear on the question.
The landmark decision is In re Winship, supra, in which the Supreme Court reviewed a delinquency determination by a New
In an opinion by Justice Brennan, the Supreme Court took note of the longstanding common-law principle that required proof beyond a reasonable doubt to establish guilt of criminal charges:
The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The “demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.” C. McCormick, Evidence § 321, pp. 681-82 (1954). Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does “reflect a profound judgment about the way in which law should be enforced and justice administered.” Duncan v. Louisiana, 391 U.S. 145, 155, 20 L.Ed.2d 491, 499, 88 S.Ct. 1444 (1968).
[Id. at 361-62, 90 S.Ct. at 1071, 25 L.Ed.2d at 373-74 (alteration in original) (citation omitted).]
The Court also emphasized the practical and moral justifications for the requirement of proof beyond a reasonable doubt in criminal trials, holding expressly for the first time that that standard of proof was mandated by the Due Process Clause:
“There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of ... persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of ... convincing the factfinder of his guilt.”
[quoting Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1472-73 (1958).]....
Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned....
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
Reversing the New York Court of Appeals, the Supreme Court invalidated the New York statute permitting delinquency determinations to be based merely on a preponderance of the evidence. The Court stated:
In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault—notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, “that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process ... the case against him must be proved beyond a reasonable doubt.” 24 N.Y.2d at 207, 299 N.Y.S.2d at 423, 247 N.E.2d at 260.
The Supreme Court first had occasion to apply the Winship principle in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), a case in which the defendant‘s trial and conviction of murder in Maine occurred approximately four years prior to the Winship decision. At that trial the defendant did not contest his responsibility for the homicide, but alleged that he had acted in a frenzy provoked by the victim‘s homosexual advance. On that basis his counsel asserted that at most the homicide was manslaughter, having been committed in the heat of passion provoked by the victim‘s advances. The trial court instructed the jury that under Maine law murder and manslaughter are both subsets of homicide, and both offenses require the State to prove that the homicide was intentional and unjustifiable. The court further charged that malice aforethought, an essential element of murder, was to be conclusively implied unless the defendant
In an opinion by Justice Powell, the Supreme Court acknowledged that at common law the burden of proving heat of passion on sudden provocation was borne by the defendant, but noted that that approach had since been rejected by the Court, Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), and by the majority of states. Mullaney, supra, 421 U.S. at 696, 95 S.Ct. at 1888, 44 L.Ed.2d at 517-18. The Court also rejected Maine‘s contention that the holding of Winship applied only to the elements of a crime as defined by state law:
Moreover, if Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment. An extreme example of this approach can be fashioned from the law challenged in this case. Maine divides the single generic offense of felonious homicide into three distinct punishment categories—murder, voluntary manslaughter, and involuntary manslaughter. Only the first two of these categories require that the homicidal act either be intentional or the result of criminally reckless conduct. But under Maine law these facts of intent are not general elements of the crime of felonious homicide. Instead, they bear only on the appropriate punishment category. Thus, if petitioners’ argument were accepted, Maine could impose a life sentence for any felonious homicide—even one that traditionally might be considered involuntary manslaughter—unless the defendant was able to prove that his act was neither intentional nor criminally reckless.
Winship is concerned with substance rather than this kind of formalism.
[Id. at 698-99, 95 S.Ct. at 1888-89, 44 L.Ed.2d at 519-20 (citations omitted).]
Accordingly, the Court invalidated the Maine homicide statute, holding that in homicide prosecutions the State bears the burden
Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter. We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.
Accordingly, the judgment below is reversed.
[Id. at 703-04, 95 S.Ct. at 1892, 44 L.Ed.2d at 522 (citations omitted).]
In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Court, in a 5-3 vote, qualified its holding in Mullaney by sustaining a New York statute that defined second-degree murder as “causing the death of another person with intent to do so” and placing on the defendant the burden of proving by a preponderance of the evidence the affirmative defense of extreme emotional disturbance. In Patterson the defendant, estranged from his wife, observed through a window that she was partially unclothed in the presence of the victim. He entered the house with a rifle, killing the victim with two shots to the head. Patterson was charged with second-degree murder which, under New York law, required proof only of “intent to cause the death of another person” and “caus[ing] the death of such person or of a third person.”
In an opinion by Justice White, the Court upheld the New York statute on the basis that it imposed on the State the burden of proving all elements of the offense beyond a reasonable doubt.
We cannot conclude that Patterson‘s conviction under the New York law deprived him of due process of law. The crime of murder is defined by the statute, which represents a recent revision of the state criminal code, as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. The statute does provide an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation—which, if proved by a preponderance of the evidence, would reduce the crime to manslaughter, an offense defined in a separate section of the statute....
Here, the jury was instructed in accordance with the statute, and the guilty verdict confirms that the State successfully carried its burden of proving the facts of the crime beyond a reasonable doubt. Nothing in the evidence, including any evidence that might have been offered with respect to Patterson‘s mental state at the time of the crime, raised a reasonable doubt about his guilt as a murderer; and clearly the evidence failed to convince the jury that Patterson‘s affirmative defense had been made out. It seems to us that the State satisfied the mandate of Winship that it prove beyond a reasonable doubt “every fact necessary to constitute the crime with which [Patterson was] charged.”
[Id. at 205-206, 97 S.Ct. at 2324-25, 53 L.Ed.2d at 289 (alteration in original) (citation omitted).]
The Court also observed that New York was not constitutionally compelled to disprove the availability of affirmative defenses to murder:
It is also very likely true that fewer convictions of murder would occur if New York were required to negative the affirmative defense at issue here. But in each instance of a murder conviction under the present law, New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that
the fact has been established with reasonably certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate.
Finally, the Court distinguished Mullaney on the basis that the New York statute, unlike the Maine statute, did not presume an element of the crime unless rebutted by the defendant. Distinguishing the Maine statute at issue in Mullaney, the Court noted that
[p]remeditation was not within the definition of murder; but malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i.e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship.
As we have explained, nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases.
Justice Powell, in a dissenting opinion joined by Justices Brennan and Marshall, sharply criticized what he characterized as the Court‘s formalistic distinctions between Mullaney and Patterson:
Perhaps the Court‘s interpretation of Winship is consistent with the letter of the holding in that case. But little of the spirit survives. Indeed, the Court scarcely could distinguish this case from Mullaney without closing its eyes to the constitutional values for which Winship stands. As Mr. Justice Harlan observed in Winship, “a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Explaining Mullaney, the Court says today, in effect, that society demands full confidence before a Maine factfinder determines that heat of passion is missing—a demand so insistent that this Court invoked the Constitution to enforce it over the contrary decision by the State. But we are told that society is willing to tolerate far less confidence in New York‘s factual determination of precisely the same functional issue. One must ask what possibly could explain this difference in societal demands. According to the Court, it is because Maine happened to attach a name—“malice aforethought“—to the absence of heat of passion, whereas New York refrained from giving a name to the absence of extreme emotional disturbance.
With all respect, this type of constitutional adjudication is indefensibly formalistic. A limited but significant check on possible abuses in the criminal law now becomes an exercise in arid formalities. What Winship and Mullaney had sought
to teach about the limits a free society places on its procedures to safeguard the liberty of its citizens becomes a rather simplistic lesson in statutory draftsmanship.
[Id. at 223-24, 97 S.Ct. at 2334, 53 L.Ed.2d at 300-01 (citations omitted).]
Nine years after its decision in Patterson, the Supreme Court revisited the Winship issue in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). McMillan concerned the constitutionality under the Due Process Clause and the Sixth Amendment‘s jury trial guarantee of Pennsylvania‘s Mandatory Minimum Sentencing Act,
Each of the petitioners in McMillan was convicted of one of the enumerated felonies under the Act, and in all four cases the Commonwealth gave notice of its intent to proceed under the Act‘s mandatory sentencing provisions. No hearings were held, however, because the sentencing judges found the Act unconstitutional. The Supreme Court of Pennsylvania consolidated the four appeals and held that the Act did not violate the due process guarantee, Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), rejecting petitioners’ contention that visible possession of a firearm is an element of each felony that must be proved beyond a reasonable doubt. McMillan, supra, 477 U.S. at 81-84, 106 S.Ct. at 2413-15, 91 L.Ed.2d at 73-75.
The Supreme Court affirmed 5-4, in an opinion authored by then Justice Rehnquist. Relying primarily on its decision in Patterson, the Court emphasized the significance of the State‘s definition of the elements of a crime in applying the Winship principle:
Patterson stressed that in determining what facts must be proved beyond a reasonable doubt the state legislature‘s definition of the elements of the offense is usually dispositive: “[T]he Due Process Clause requires the prosecution to prove
beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.” Id., at 210, 97 S.Ct. at 2327 (emphasis added). While “there are obviously constitutional limits beyond which the States may not go in this regard,” ibid., “[t]he applicability of the reasonable-doubt standard ... has always been dependent on how a State defines the offense that is charged in any given case,” id., at 211, n. 12, 97 S.Ct. at 2327.
[Id. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d at 75 (alteration in original).]
Although acknowledging the existence of constitutional limits on a state‘s power to define the elements of an offense for due process purposes, the McMillan majority concluded that the Pennsylvania statute did not exceed those limits, and offered three justifications for that conclusion. First, unlike in Mullaney, the Act did not create an impermissible presumption relieving the prosecutor of the burden of proving an element of the offense. Second, the statute did not increase the maximum sentence beyond that imposed for violation of the underlying offense. Third, the statute did not appear to represent a legislative attempt to evade the reasonable doubt requirement. Id. at 86-89, 106 S.Ct. at 2416-18, 91 L.Ed.2d at 76-78.
Dissenting, Justice Marshall, joined by Justices Brennan and Blackmun, rejected the majority‘s thesis and emphasized that “[w]hether a particular fact is an element of a criminal offense that, under In re Winship, must be proved by the prosecution beyond a reasonable doubt is a question that must be decided by this Court and cannot be abdicated to the States.” Id. at 93, 106 S.Ct. at 2420, 91 L.Ed.2d at 81 (Marshall, J., dissenting) (citation omitted).
In a separate dissent, Justice Stevens, who joined the majority in Patterson, rejected the majority‘s assertion that courts should defer to a state legislature‘s definition of a crime in determining the application of due process protections:
Today the Court holds that state legislatures may not only define the offense with which a criminal defendant is charged, but may also authoritatively determine that the conduct so described—i.e., the prohibited activity which subjects the defendant to criminal sanctions—is not an element of the crime which the Due Process Clause requires to be proved by the prosecution beyond a reasonable doubt. In my view, a state legislature may not dispense with the requirement of proof beyond a reasonable doubt for conduct that it targets for severe criminal penalties. Because
the Pennsylvania statute challenged in this case describes conduct that the Pennsylvania Legislature obviously intended to prohibit, and because it mandates lengthy incarceration for the same, I believe that the conduct so described is an element of the criminal offense to which the proof beyond a reasonable doubt requirement applies.
Once a State defines a criminal offense, the Due Process Clause requires it to prove any component of the prohibited transaction that gives rise to both a special stigma and a special punishment beyond a reasonable doubt.
[Id. at 96, 106 S.Ct. at 2421, 91 L.Ed.2d at 83 (Stevens, J., dissenting).]
Distinguishing Patterson, Justice Stevens characterized that holding as upholding a state‘s refusal to “‘prove beyond a reasonable doubt every fact, the existence or nonexistence of which it [was] willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment‘—in that case, the affirmative defense of extreme emotional disturbance.” Id. at 99, 106 S.Ct. at 2423, 91 L.Ed.2d at 84-85 (quoting Patterson, supra, 432 U.S. at 207, 97 S.Ct. at 2325, 53 L.Ed.2d at 290 (Stevens, J., dissenting)). Justice Stevens distinguished the “aggravating fact” of visible possession of a firearm from the “mitigating fact” implicated by Patterson, noting that
although States may reach the same destination either by criminalizing conduct and allowing an affirmative defense, or by prohibiting lesser conduct and enhancing the penalty, legislation proceeding along these two paths is very different even if it might theoretically achieve the same result.
[McMillan, supra, 477 U.S. at 100, 106 S.Ct. at 2424, 91 L.Ed.2d at 85-86 (Stevens, J., dissenting).]
Accordingly, Justice Stevens asserted that irrespective of the Pennsylvania Legislature‘s assertion that visible possession of a firearm is not an element of the offenses subject to the Act, the Due Process Clause requires that fact to be proved by the State beyond a reasonable doubt:
Appropriate respect for the rule of In re Winship requires that there be some constitutional limits on the power of a State to define the elements of criminal offenses. The high standard of proof is required because of the immense importance of the individual interest in avoiding both the loss of liberty and the stigma that results from a criminal conviction. It follows, I submit, that if a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a “fact necessary to constitute the crime” within the meaning of our holding in In re Winship.
[Id. at 103, 106 S.Ct. at 2425, 91 L.Ed.2d at 87 (Stevens, J., dissenting).]
More than a decade after its decision in McMillan the Supreme Court again confronted the Winship issue in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The statute at issue in Almendarez-Torres was
Petitioner Almendarez-Torres pled guilty to a federal indictment charging that he had been found in the United States after having been deported in violation of
In affirming the lower courts, the Supreme Court initially relied on McMillan, supra, for the principle that legislative intent determines whether a provision in a criminal statute is an element of a crime or a sentencing enhancer, id. at 228, 118 S.Ct. at 1223, 140 L.Ed.2d at 358, and concluded after reviewing the statutory provisions at issue and their legislative history that “Congress intended
Next, the Court addressed the doctrine of “constitutional doubt,” relied on by the dissenting Justices to support their view that the statute should be construed in a manner that avoided grave doubts concerning its constitutionality. The majority opinion declined to apply the doctrine:
That is because the “constitutional doubt” doctrine does not apply mechanically whenever there arises a significant constitutional question the answer to which is not obvious. And precedent makes clear that the Court need not apply the doctrine in circumstances similar to those here—where a constitutional question, while lacking an obvious answer, does not lead a majority gravely to doubt that the statute is constitutional.
Finally, the Court rejected the contention that its emphasis in McMillan on the fact that the statute there did not “alter[] the maximum penalty for the crime,” 477 U.S. at 87, 106 S.Ct. at 2417, 91 L.Ed.2d at 77, required a different result in Almendarez-Torres where the statute increased the maximum sentence tenfold. The Court emphasized that “the sentencing factor at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court‘s increasing an offender‘s sentence.” Almendarez-Torres, supra, 523 U.S. at 244, 118 S.Ct. at 1230, 140 L.Ed.2d at 368. In addition, the Court noted that the mandatory minimum sentence at issue in McMillan could be more disadvantageous to a criminal defendant than an increase in the maximum sentence because the former is binding on a sentencing judge whereas the latter is not. Accordingly, the Court rejected the contention that a statutory provision that increases the maximum permissible sentence necessarily constitutes an element of the crime. Id. at 245-47, 118 S.Ct. at 1231, 140 L.Ed.2d at 369-70.
Dissenting, Justice Scalia sharply criticized the majority‘s rejection of the “constitutional doubt” doctrine and its reliance on recidivism as a basis for distinguishing the concern expressed in
But this parsing of various factors is really beside the point. No one can read our pre-McMillan cases, and especially Mullaney (whose limits were adverted to in Patterson but never precisely described) without entertaining a serious doubt as to whether the statute as interpreted by the Court in the present case is constitutional. And no one can read McMillan, our latest opinion on the point, without perceiving that the determinative element in our validation of the Pennsylvania statute was the fact that it merely limited the sentencing judge‘s discretion within the range of penalty already available, rather than substantially increasing the available sentence. And even more than that: No one can read McMillan without learning that the Court was open to the argument that the Constitution requires a fact which does increase the available sentence to be treated as an element of the crime (such an argument, it said, would have “at least superficial appeal,” 477 U.S., at 88, 106 S.Ct., at 2417). If all that were not enough, there must be added the fact that many State Supreme Courts have concluded that a prior conviction which increases maximum punishment must be treated as an element of the offense under either their state constitutions, or as a matter of common law.
In the end, the Court cannot credibly argue that the question whether a fact which increases maximum permissible punishment must be found by a jury beyond a reasonable doubt is an easy one. That, perhaps, is why the Court stresses, and stresses repeatedly, the limited subject matter that § 1326(b) addresses—recidivism. It even tries, with utter lack of logic, to limit its rejection of the fair reading of McMillan to recidivism cases. “For the reasons just given,” it says, “and in light of the particular sentencing factor at issue in this case—recidivism—we should take McMillan‘s statement [regarding the “superficial appeal” the defendant‘s argument would have if the factor at issue increased his maximum sentence] to mean no more than what it said, and therefore not to make a determinative difference here.” Ante at 247 (emphasis added). It is impossible to understand how McMillan could mean one thing in a later case where recidivism is at issue, and something else in a later case where some other sentencing factor is at issue. One might say, of course, that recidivism should be an exception to the general rule set forth in McMillan—but that more forthright characterization would display how doubtful the constitutional question is in light of our prior case law.
....
What I have tried to establish—and all that I need to establish—is that on the basis of our jurisprudence to date, the answer to the constitutional question is not clear. It is the Court‘s burden, on the other hand, to establish that its constitutional answer shines forth clearly from our cases. That burden simply cannot be sustained. I think it beyond question that there was, until today‘s unnecessary resolution of the point, “serious doubt” whether the Constitution permits a defendant‘s sentencing exposure to be increased tenfold on the basis of a fact that is not charged, tried to a jury, and found beyond a reasonable doubt. If the Court wishes to abandon the doctrine of constitutional doubt, it should do so forthrightly, rather than by declaring certainty on a point that is clouded in doubt.
[Id. at 248-51, 118 S.Ct. at 1233-34, 140 L.Ed.2d at 371-73 (citations omitted).]
The Supreme Court again confronted the Winship issue this term in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). The issue in Jones involved the federal carjacking statute,
Jones and two accomplices held up two victims and stole their automobile. In the course of the carjacking one of Jones‘s accomplices stuck his gun in the left ear of one victim and then struck him on the head. Jones was apprehended when he crashed the stolen car into a telephone pole.
Jones and his accomplices were indicted for violation of the federal carjacking statute,
Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.
Neither the indictment nor the District Court‘s jury instructions contained any reference to serious bodily injury or any facts relating to the victim‘s injuries. The jury convicted Jones of the carjacking offense and of aiding and abetting the use of a firearm in relation to a crime of violence. See
The presentence report, however, recommended that Jones be sentenced to twenty-five years’ imprisonment on the basis that one of the victims sustained a perforated eardrum and permanent hearing loss, constituting serious bodily injury for purposes of the carjacking statute. Jones objected, contending that serious bodily
In a 5-4 decision, the Supreme Court reversed, construing the statute to define three distinct offenses in reliance on the established rule that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” 526 U.S. at 239-40, 119 S.Ct. at 1222, 143 L.Ed.2d at 324 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 536, 53 L.Ed. 836, 849 (1909)). The Court first examined the structure of the carjacking statute and its legislative history, as well as comparable federal criminal statutes, and concluded on the basis of that examination that “Congress probably intended serious bodily injury to be an element defining an aggravated form of the crime.” 526 U.S. at 236, 119 S.Ct. at 1221, 143 L.Ed.2d at 321.
The Court also reviewed the post-Winship decisional law, emphasizing the question raised in McMillan whether “judicial factfinding by a preponderance [may] support the application of a provision that increases the potential severity of the penalty for a variant of a given crime,” as well as ”Mullaney‘s insistence that a State cannot manipulate its way out of Winship,” and ”Patterson‘s recognition of a limit on state authority to reallocate traditional burdens of proof.” Id. at 242-44, 119 S.Ct. at 1224, 143 L.Ed.2d at 326.
Responding to the dissent‘s challenge to state with precision the principle underlying the majority‘s view that the carjacking stat-
The preceding paragraph in the text expresses that principle plainly enough, and we re-state it here: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Government‘s reading of the statute rises only to the level of doubt, not certainty.
[Id. at 243 n. 6, 119 S.Ct. at 1224 n. 6, 143 L.Ed.2d at 326 n. 6.]
Concurring, Justices Stevens and Scalia both expressed the belief that “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Id. at 252, 119 S.Ct. at 1228, 143 L.Ed.2d at 331 (Stevens, J., concurring).
Justice Kennedy, dissenting, expressed the view that the Court‘s holding in Almendarez-Torres was controlling notwithstanding that the sentencing factor implicated there was recidivism, and predicted that the Court‘s holding would have a significant impact on state sentencing statutes:
[T]he Court is eager to find controlling significance in the fact that the statute at issue in Almendarez-Torres made recidivism a sentencing factor, while the sentencing factor at issue here is serious bodily injury. This is not a difference of constitutional dimension, and Almendarez-Torres does not say otherwise. It is true that our statutory analysis was informed in substantial measure by the fact that recividism is a common sentencing factor. Id. at 230, 118 S.Ct. 1219. In our constitutional analysis we invoked the long history of using recidivism as a basis for increasing an offender‘s sentence to illustrate the novel and anomalous character of the petitioner‘s proposed constitutional rule—i.e., that under McMillan v. Pennsylvania any factor that increases the maximum penalty for a crime must be deemed an element of the offense. We proceeded to reject that rule. Almendarez-Torres v. United States, 523 U.S. at 247, 118 S.Ct. 1219.
....
The rationale of the Court‘s constitutional doubt holding makes it difficult to predict the full consequences of today‘s holding, but it is likely that it will cause disruption and uncertainty in the sentencing systems of the States. Sentencing is one of the most difficult tasks in the enforcement of the criminal law. In seeking to bring more order and consistency to the process, some States have sought to move from a system of indeterminate sentencing or a grant of vast discretion to the trial judge to a regime in which there are more uniform penalties, prescribed by
the legislature. See A. Campbell, Law of Sentencing §§ 1:3, 4:6-4:8 (2d ed.1991). These States should not be confronted with an unexpected rule mandating that what were once factors bearing upon the sentence now must be treated as offense elements for determination by the jury. This is especially so when, as here, what is at issue is not the conduct of the defendant, but the consequences of a completed criminal act.
[Id. at 267-71, 119 S.Ct. at 1236-38, 143 L.Ed.2d at 341-43 (emphasis added).]
III
As the Court‘s opinion explains, ante at 12, 731 A.2d at 487, between the date of defendant‘s offenses and the date of his sentence the Legislature, in response to our decision in State v. Mortimer, 135 N.J. 517, 641 A.2d 257, cert. denied, 513 U.S. 970, 115 S.Ct. 440, 130 L.Ed.2d 351 (1994), amended
2C:44-3 Criteria for sentence of extended term of imprisonment
The court shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime ... to an extended term if it finds, by a preponderance of the evidence, the grounds in subsection e.
...
e. The defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.
The Appellate Division majority, in sustaining the constitutionality of
Unlike Almendarez-Torres and Jones, the sentencing enhancement at issue here does involve the conduct of the defendant, as the definition of conduct in the Code of Criminal Justice (Code) makes clear: “‘Conduct’ means an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions.”
“Element of an offense” means (1) such conduct or (2) such attendant circumstances or (3) such a result of conduct as
(a) Is included in the description of the forbidden conduct in the definition of the offense;
(b) Establishes the required kind of culpability;
(c) Negatives an excuse or justification for such conduct;
(d) Negatives a defense under the statute of limitations; or
(e) Establishes jurisdiction or venue.
[
N.J.S.A. 2C:1-14(h) .]
As the Supreme Court emphasized in Mullaney, supra, the due process protections afforded by the Court‘s holding in Winship cannot be undermined by states redefining the elements of crimes and characterizing essential factors as bearing only on sentencing. Mullaney, supra, 421 U.S. at 698-99, 95 S.Ct. at 1889-90, 44 L.Ed.2d at 519-20. Accordingly, although defendant pled guilty to the second-degree crime of possession of a firearm for the purpose of using it unlawfully,
The foregoing statutory analysis demonstrates that the Legislature‘s inclusion of a preponderance-of-the-evidence standard of proof in
I also conclude that
The Court‘s opinion attempts to reconcile
[T]he Legislature simply took one factor that has always been considered by sentencing courts to bear on punishment and dictated the weight to be given that factor. A finding of a biased motive or purpose to intimidate, like the factor of recidivism in the Almendarez-Torres analysis, is a very traditional sentencing factor.
The difference, however, is glaring. The factor of recidivism is readily determined on the basis of the official court record of a prior conviction; it involves no inquiry into the defendant‘s conduct in perpetrating the current offense; and recidivism, of course, involves no inquiry in connection with the defendant‘s mental state in committing the current offense. Neither the Jones case, in which the sentencing factor was serious bodily injury to a carjacking victim, nor McMillan, in which the sentencing factor was visible possession of a firearm in the course of committing various felonies, required the sentencer to make findings of fact, such as are required by
The Court correctly cautions that if a defendant‘s purpose to intimidate based on race were an element of his criminal offense, that could “create[] an added risk of prejudice for defendants. It would open trials to evidence of former acts of bias on the part of the actor.” Ante at 26, 731 A.2d at 495. That concern is a significant one and undoubtedly could be addressed by implementing a variant of the procedure we followed in State v. Ragland, 101 N.J. 33, 499 A.2d 1366 (1985), reconsidered, 105 N.J. 189, 519 A.2d 1361 (1986). The defendant in Ragland was charged with unlawful possession of a weapon and possession of a weapon by a convicted felon. We held that the “two charges must be tried separately since proof that defendant was a convicted felon (required in the trial of the latter charge) clearly tends to prejudice the jury in considering the former.” 105 N.J. at 193, 519 A.2d 1361. That procedure was followed in Ragland using the same jury. That jury first tried the unlawful possession charge and then tried the charge of possession by a convicted felon. Id. at 195, 519 A.2d 1361. That procedure could be adapted to the charges against defendant, resulting in the same jury first trying the possession offenses and subsequently deliberating on the charge that the possessory offenses were committed with a purpose to intimidate the victims because of their race.
IV
The principle that fortifies my conclusion that defendant‘s convictions and sentence must be reversed because of the unconstitutionality of
Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned....
[In re Winship, supra, 397 U.S. at 364, 90 S.Ct. at 1072-73, 25 L.Ed.2d at 375.]
HANDLER, J., joins in this opinion.
For affirmance—Chief Justice PORITZ and Justices POLLOCK, O‘HERN, GARIBALDI and COLEMAN—5.
For reversal and remandment—Justices HANDLER and STEIN—2.