PA & NJ: State To Be Held To Its Burden When Seeking Increased Sentences
Critics of what many have come to see as “draconian” mandatory minimum sentencing laws can take heart in a recent judicial trend invalidating the current mandatory minimum sentencing schemes in several jurisdictions. Following the United States Supreme Court ruling in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 215 (2013), the Supreme Court of New Jersey and the Superior Court of Pennsylvania have both ruled that state statutes requiring the application of mandatory minimum sentences based solely on judicial findings of fact were unconstitutional.
I. The United States Supreme Court Reconciles Its Sentencing Jurisprudence
The Sixth Amendment and the Due Process Clause require that every defendant is entitled to a trial by jury and that each element of the crime with which the defendant is charged be proved to the jury beyond a reasonable doubt. See, e.g., United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995). However, traditionally, facts which could enhance the length of a sentence need only have been proven by a preponderance of the evidence. Since at least McMillian v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411 (1986), the Supreme Court has drawn a distinction between the “elements of the offense charged” that a jury must find beyond a reasonable doubt, and “sentencing factors” that a judge could consider after the jury found the defendant guilty. Thus, a defendant convicted of a crime often faced an enhanced penalty of additional years of incarceration based on facts never submitted to, or decided by, a jury.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the United States Supreme Court held that all facts that raise the statutory maximum sentence constitute elements of the charged crime that a prosecutor must prove to a jury beyond a reasonable doubt. Conversely, two years later, the United States Supreme Court ruled, in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406 (2002), that facts that raise the applicable mandatory minimum sentence were only “sentencing facts,” which a judge alone could find by a preponderance of the evidence. While Harris remained something of an outlier in subsequent Supreme Court rulings regarding sentencing, it remained good law for over a decade. Finally, in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), the Supreme Court resolved the conflict between Apprendi and Harris, holding that any fact that increases either the floor or the ceiling of a sentence is an element of the offense that must be found by a jury beyond a reasonable doubt. Id. at 2160-62.
The effects of the Alleyne ruling immediately began to be felt. In August 2013, Attorney General Eric Holder issued a change to the Department of Justice’s charging policy based on the Alleyne ruling. Holder directed that, in certain drug cases, federal prosecutors should decline to charge the quantity necessary to trigger the mandatory minimum sentence. This came as welcome news to many critics who, for years, have decried mandatory minimum sentences in low-level, non-violent drug cases as disproportionate and discriminatory.
II. Pennsylvania and New Jersey Follow Suit
This past September, the Pennsylvania Superior Court ruled the imposition of a mandatory minimum sentence based on judicial findings of fact unconstitutional. Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. Ct. 2014). In Newman, defendant was arrested after a search warrant revealed a large quantity of drugs and a gun in his apartment. Defendant was convicted of possession with intent, simple possession, possession of drug paraphernalia, dealing in proceeds of unlawful activities, possession of an instrument of crime and criminal conspiracy. Following the trial, the district attorney filed a notice seeking the mandatory sentence under 42 Pa.C.S.A. 9721.1, which enhances the minimum sentence where a firearm is found in the vicinity of illegal drugs. Defendant was then sentenced under 9721.1 to five to fifteen years in prison. Five days after the Superior Court affirmed his sentence, Alleyne was decided. Granting defendant’s request for reconsideration, the Superior Court, sitting en banc, vacated defendant’s sentence. The Court held that, in the wake of Alleyne, Section 9721.1 was unconstitutional as it permitted “the trial court, as opposed to the jury, to increase a defendant’s minimum sentence based upon a preponderance of the evidence that the defendant was dealing drugs and possessed a firearm, or that a firearm was in close proximity to the drugs.” Id. at 98. The Superior Court went on to hold that, “Under Alleyne, the possession of the firearm must be pleaded in the indictment, and must be found by the jury beyond a reasonable doubt before the defendant may be subjected to an increase in the minimum sentence.” Id.
More recently, the Supreme Court of New Jersey similarly ruled that a statute requiring the trial court to enhance a defendant’s mandatory minimum sentence based on certain factual findings made by the trial judge was unconstitutional under Alleyne. In that case, two defendants, Fuquan Cromwell and James Grate, were stopped by police on a college campus during an attempted robbery of an acquaintance. Defendants were charged with various offenses and convicted of second-degree unlawful possession of a weapon and third-degree unlawful possession of a weapon at an educational institution. During the sentencing hearing, a corporal with the sheriff’s office testified that both defendants had admitted to being members of the local chapter of the Crips street gang and that both had tattoos denoting their membership. Based on this testimony, the trial judge found, inter alia, that aggravating factor five, a substantial likelihood that defendants were involved in organized criminal activity, N.J.S.A. 2C:44-1(a)(5), applied to both defendants and, on that basis, ordered mandatory five-year parole disqualifiers under N.J.S.A. 2C:39-5(i).
On appeal, the Supreme Court of New Jersey found that under Alleyne, “any fact that increases the mandatory minimum sentence is an ‘element’ that must be submitted to the jury” to be found beyond reasonable doubt. Therefore, the imposition of a mandatory minimum sentence under N.J.S.A. 2C:39-5(i) was unconstitutional. The Court declined the state’s invitation to perform judicial surgery in order to free the statute from constitutional defect, holding that the statute’s unambiguous requirement that a judge impose a mandatory minimum sentence based on a judicial finding of fact meant that it would have to be completely re-written to pass constitutional muster in the wake of Alleyne.
These rulings are no doubt a net gain for defendants who, in the wake of Alleyne, cannot have either the floor or the ceiling of their sentence increased based solely on a judicial finding of fact. But judges still have a great deal of discretion in sentencing. For example, the United States Supreme Court has stressed that the determination of what counts as a “prior conviction” – often a critical fact in sentencing – remains in the hands of the judge, not the jury. See Apprendi, 530 U.S. at 491-92, 120 S.Ct. 2348.
In these jurisdictions at least, the state is now to be held to its burden – beyond a reasonable doubt – in most instances in which the state seeks an increased sentence.