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"Tail of the Dog": Finding "Elements" of Crimes in the Wake of Mcmillan V

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ARTICLES Searching for the "Tail of the Dog": Finding "Elements" of Crimes in the Wake of McMillan v. Pennsylvania Mark D. Knoll* Richard G. Singer" I. INTRODUCTION An axiom of Anglo-American jurisprudence held that whenever the statutorily permissible punishment varied according to the presence or absence of an identifiable fact (or "element") found within a statute, that fact was required to be plead in the indictment and proved by the required standard of proof, which was usually beyond a reasonable doubt.1 This long-held notion, given constitutional protection by the United States Supreme Court in In re Winship,2 was dealt what now appears to have been a near-fatal blow in the watershed case of McMillan v. Pennsylvania.3 In McMil!an,4 the United States Supreme * J.D., Rutgers University School of Law, Camden, 1999. ** Distinguished Professor of Law, Rutgers University School of Law, Camden. 1. See infra Section II. 2. 397 U.S. 358 (1970). 3. 477 U.S. 79 (1986). 4. Dynel McMillan, Lorna Peterson, James J. Dennison, and Harold L. Smalls had their appeals consolidated for the McMillan decision. In each case, the defendants were convicted of "visibly possess[ing]" a weapon during the commission of their various crimes. Id. at 82-83. The defendants in McMillan challenged the mandatory minimum sentences imposed under the Pennsylvania statute, claiming that Winship prevented the state from imposing any sentence unless "every fact necessary to constitute the crime" had been proved beyond a reasonable doubt. Id. at 84 (quoting Winship, 397 U.S. at 364). The Court rejected this challenge and instead relied on Patterson v. New York, 432 U.S. 197, 214 (1977), for the proposition that, at least in some instances, even if the state links the severity of punishment to the presence or absence of an identifiable fact, it does not follow that the state must then require proof of that fact beyond a reasonable doubt. McMillan, 477 U.S. at 84-85. According to the McMillan Court, the Pennsylvania statute at issue did not (1) alter the maximum penalty; (2) create a separate crime 1057 1058 Seattle University Law Review [Vol. 22:1057 Court upheld a Pennsylvania statute that imposed a mandatory minimum sentence of five years for defendants who visibly possessed a firearm during the commission of a predicate offense.' The statute specifically provided that such possession "shall not be an element of the crime," that notice to the defendant of the State's intention to pursue the mandatory minimum penalty under the statute "shall not be required prior to conviction" (but was required before sentencing), and that the facts which would be necessary to sentence the defendant to the mandatory minimum could be established by a preponderance of the evidence.6 Proving another axiom of American jurisprudence-that "[n]ot every epochal case has come in epochal trappings"7-McMillan prompted an abstruse, yet revolutionary, change in the way that facts bearing directly on statutorily available punishment are found in criminal cases. McMillan marked the birth of the "sentencing factor,"' a concept that radically restructured the roles of judge and jury by shifting to the court the ability to make at sentencing, and by a preponderance of the evidence, factual determinations that, prior to McMillan, had to be made by juries, at trial, and beyond a reasonable doubt. McMillan not only restructured the traditional roles of judge and jury; Chief Justice Rehnquist's majority opinion also provided a bit of canine context for courts to use in determining whether a fact at issue is an "element" of an offense or a "sentencing factor." The sentencing factor, according to Rehnquist, was the "tail" of the "dog" and could be determined by a judge so long as the factor did not "wag[] the dog of the substantive offense." Now, some twelve years after the decision, McMillan can be clearly identified as a major turning point in American criminal law. The decision is significant for its retreat from virtually uniform precedent that held that whenever the sovereign sought to punish a defendant, the state had to prove beyond a reasonable doubt every fact that would allow it to impose a punishment within a specified range.' ° with a separate penalty; (3) unfairly place the burden of proof on the defendant; or (4) remove the prosecutor's burden of proving guilt. Id. at 87-88. 5. 42 PA. CONS. STAT. § 9712(b) (1982). 6. Id. 7. United States v. Lopez, 514 U.S. 549, 615 (1995) (Souter, J. dissenting). 8. McMillan, 477 U.S. at 86. The term "sentencing factor" did not come into wide use or become a term of art in this context until after McMillan. Prior to McMillan, the use of the term "sentencing factor" was generally limited to those facts that determined punishment within the statutory range under the indeterminate sentencing regime. See infra note 45. 9. McMillan, 477 U.S. at 88. 10. See discussion infra Section II. 1999] Elements of Crimes 1059 These facts, which both defined the crime and helped to gradate levels of punishment, were called "elements" of the crime." The reach of McMillan was recently broadened by the Court in Almendarez- Torres v. United States,2 in which the court appeared to hold that even if a sentencing factor dramatically increases the statutorily available punishment, it may still be decided by the judge rather than the jury.' However, the Court's holding in Almendarez- Torres was cast into doubt less than two weeks later when the Court granted certiorari in Jones v. United States.'4 Certiorari was granted in order to decide whether the gradated punishment scheme found in the federal anticarjacking statute 5 requires that certain factual findings, such as whether the crime resulted in "serious bodily injury," should be classified as elements of the statute or merely sentencing 11. Courts did not always use the term "element" in describing certain facts found within statutes. But the point was clear, as will be suggested later, that even if the fact is not designated an "element," its bearing on the defendant's sentence would still require-and was seen by earlier courts as clearly requiring-jury determinations beyond a reasonable doubt. See discussion infra Section II. Broken down to basic formulations, four types of "elements" are present in most statutes. First, each statute may contain some kind of jurisdictional elements, which set jurisdiction and venue but are rarely explicit within the statute itself. Second, most statutes also contain what may be termed physical elements. These include the where, when, and what of most offenses. Third, statutes may contain a mental culpability level. In the context of this article, the most common mens tea element is "scienter"-knowledge of a particular fact. Other mens tea elements include purpose, recklessness, and criminal negligence with regard to an element of the offense. Prior to the Model Penal Code, state statutes and common law crimes used a bewildering array of mens tea terms to denote culpability. A defendant's mens tea will in most cases play a critical role in determining what the defendant will be charged with as well as his or her available defenses. The major exception to the mens rea requirement would be those crimes which are malum prohibitum, or strict-liability offenses wherein no mens rea is required. See, e.g., Richard G. Singer, The Resurgence of Mens Rea: Ill-The Rise and Fall of Strict Criminal Liability, 30 B.C. L. REV. 337 (1989); Morrissette v. United States, 342 U.S. 246 (1952) (dictum). Fourth, some statutes contain penal elements. These are facts which, if found by the jury, allow for the imposition of a certain punishment that could not otherwise be imposed. Many times these elements are called aggravating factors. For example, if the punishment shifts from one level to another based upon the amount or quantity involved, then that amount or quantity would be considered a penal element. This article will focus primarily on these penal elements of crimes. 12. 118 S. Ct. 1219 (1998). 13. Id. at 1231. In Almendarez-Torres, the Court held that the determination of whether the defendant was a recidivist under subsection (b)(2) of 8 U.S.C. § 1326 (which increases the available punishment for an alien deported due to a conviction for an aggravated felony, and who then returns to the United States, from two years maximum to twenty years maximum) may be made by the sentencing court. See infra note 214, and accompanying text. 14. United States v. Oliver, 60 F.3d 547 (9th Cir. 1995), aff'd mem., 116 F.3d 1487 (1997), cert. granted sub nom., Jones v. Unites States, 118 S. Ct. 1405 (1998). 15. 18 U.S.C. § 2119 (1994 & Supp. 11 1997). This section is set out in full infra note 248 and accompanying text. 1060 Seattle University Law Review [Vol. 22:1057 factors.16 With Jones, the Court has an opportunity both to clarify the reach of-if not overruleH-McMilan and to finally set some clear limits on exactly how far the state may go in taking away from the jury those issues which bear directly on punishment. McMillan's impact on determining what constitutes a crime has been profound. Today, in contrast to pre-McMillan procedure, trial courts, rather than juries, routinely make factual determinations, such as the amounts involved in a drug crime,' 7 despite the fact that these factual determinations directly and seriously impact the amount of time a convicted person will spend in prison." Indeed, following McMil- lan, courts have embraced the idea that so long as a particular fact is deemed relevant only at
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