Sentencing: Procedural Protection

Given the sharply reduced procedural protections that are available at sentencing, a good deal turns on the question whether particular facts will be established at the trial or only at the sentencing phase. The Supreme Court has considered this issue in a series of cases that vary somewhat in their analysis, but taken together establish that the legislature has a wide range of discretion in deciding whether to designate a particular fact as an element of the offense or as merely a sentencing factor.

In McMillan v. Pennsylvania, the Supreme Court held that the legislature ordinarily has the discretion to designate certain facts as an element of the offense (which must be proven beyond a reasonable doubt at trial) or as a sentencing factor (which may be proven by a preponderance at the sentencing phase). The Court noted, however, that due process might be violated in a case where the sentencing factor increased punishment out of proportion to the offense of conviction (where the "tail" of sentencing "wagged the dog" of the offense of conviction). In one sense, McMillan was an easy case: it involved setting the sentence within the range provided for by the offense of conviction, not increasing the sentence above that range. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), a sharply divided Supreme Court extended McMillan to a case where the facts at issue were used to subject the defendant to a significantly enhanced sentence. Based upon this decision, it appeared that the legislatures had virtually unfettered discretion to designate particular facts as elements of a crime or merely sentencing factors.

However, in Jones v. United States, 526 U.S. 227 (1999), a different five-justice majority stated a sharply different view that would impose some limitations on legislative discretion. Writing for the majority, Justice David Souter stated—in dicta—that the due process clause of the Fifth Amendment and the notice and jury trial provisions of the Sixth Amendment require that "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" (p. 243, n.6). If the Court follows the Jones dicta in later cases, it will allow the legislature largely unfettered leeway in designating certain facts as sentencing factors, rather than elements defining the crime, as long as those facts merely determine the sentence within the general sentencing range. Thus if the sentence for robbery is two to ten years, the legislature may provide that an offender who used a firearm shall receive any sentence up to and including ten years. However, if the fact in question is used to increase the sentencing range to more than ten years, then under Jones the facts in question must be treated as elements, at least to the extent that they must be charged in the indictment, and proved beyond a reasonable doubt at trial before a jury.

Given the shifting 5–4 majorities in Almendarez-Torres and Jones, it seems likely that this issue will be the subject of additional consideration in both the Supreme Court and the lower courts.