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Law Review Note

The Supreme Court's Continued Struggle to Define Crime:

Harris v. US and Ring v. Arizona

Law Review Note by Seth Azria

I. Introduction

On occasion, the Supreme Court’s struggle to determine a constitutionally acceptable definition of crime, for the purposes of the prosecution’s burden, has produced clear guidance. In 1970, the Court in In Re Winship 1 declared, “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 fact2 necessary to constitute the crime with which he is charged.”3 For the Winship Court, a fact necessary was any fact that substantially increased the defendant’s loss of liberty or increased the stigma attached to a conviction.4 In 1975 the Court applied Winship in Mullaney v. Wilbur.5 In Mullaney, Maine’s homicide statute placed the burden of proof for “heat of passion” on the defendant. Whether the killing was committed in the “heat of passion” was the only difference between a murder and a manslaughter conviction and therefore, a fact necessary under Winship. The Mullaney Court focused on the effect the law had on the defendant and held the Maine statute unconstitutional.6

On June 17, 1977 the Supreme Court decided Hankerson v. North Carolina7 and Patterson v. New York.8 Patterson held that a state may require a homicide defendant to prove by a preponderance of the evidence the mitigating factor of extreme emotional disturbance.9 The Court permitted New York to place a burden on the defendant, in a recently revised statute, that appeared to be the functional equivalent of the burden declared unconstitutional in Mullaney.10 Patterson seemed to create divergent interpretations as to what it meant, “to prove every fact necessary.”11 [emphasis added] In Patterson the Court seemed to allow the state to legislate around constitutional protection of the beyond a reasonable doubt standard.12

However, in Hankerson, the Court held that a state may not constitutionally allocate to a defendant the burden of proof on the exculpatory factor of self-defense. In Hankerson 13 the Court stressed the vital importance of the principles established in Mullaney and Winship, holding Mullaney “fully retroactive”.14

In 2000, the Court applied Winship in Apprendi v. New Jersey.15 The Court’s majority opinion in Apprendi resonated strongly with the constitutional principles established in Winship and Mullaney. In Apprendi the Court held unconstitutional a New Jersey statute that allowed a judge to find a fact critical to the imposition of a particular sentence by a preponderance of the evidence. On the twenty-fifth anniversary of Hankerson & Patterson the Court handed down two decisions on June 24, 2002, Ring v. Arizona16 and Harris v. U.S.17 Ring, on the one hand, embraced the Apprendi logic by extending it into the once special realm of the death penalty. Harris, on the other hand, sidestepped the force of Apprendi by relying on Patterson and its progeny’s distinctions based largely on legislative statutory definition.18 After this latest round of contradiction, we are again thrown into confusion about how the elements of a crime should be determined for the purposes of the prosecution’s burden and therefore the extent of the protection provided by the beyond a reasonable doubt standard to the defendant’s presumption of innocence.

This note will argue that any fact, without which the people would not be entitled to the level of punishment sought is, in effect, an element of the crime and as such must be proven by the people beyond a reasonable doubt under Winship.19 Part II of this note will show that the issues relating to the constitutional content of a crime have consistently divided courts dating back to 1727. Part III will analyze both the “first round” of the Court’s decisions from 1975-77, i.e. Mullaney, Hankerson and Patterson and the “second round” of the Court’s decisions from 2000-2002, i.e. Apprendi, Ring and Harris. Part IV will advocate that any fact that exposes a defendant to increased punishment should be proven by the people beyond a reasonable doubt; regardless of the how a statute may characterize that fact.

II. The Battle of the Burdens

Which facts must be proved? By whom? And what quantum of proof is required? At the heart of the struggle is “…the seemingly simple question of what constitutes a crime.”20 At common law, a murder was an intentional homicide committed with malice; manslaughter was an intentional homicide committed in the “heat of passion.” An English case decided in 1727, The King v. Oneby21 held that once the prosecution proved that the defendant intentionally committed a homicide, malice was a fact presumed. Therefore, it was on the defendant to show that he killed in the heat of passion; otherwise the crime was punishable as murder.22

In 1895, the Supreme Court in Davis v. U.S23 wrestled with the same issue -- what constituted a crime for the purposes of the prosecution’s burden. The issue in Davis, a murder case that involved the insanity defense, was the permissibility of a presumption of sanity that operated against the defendant.24 Like the presumption of malice at issue in Oneby, the presumption of sanity in Davis relieved the prosecution of the burden to prove a necessary fact to sustain a murder conviction, the sanity of the accused.25

The Davis Court implicitly rejected the Oneby approach, stating the “accused may stand shielded by the presumption of innocence, until it appears he is guilty; and his guilt cannot be regarded as proved, if the jury entertain a reasonable doubt from all the evidence whether he was legally capable of committing crime.”26 The Court cited “adjudications that are entitled to high respect”27 to support the proposition that “the burden was upon the prosecution to show from all the evidence the existence of the requisites or elements constituting the crime, one of which was the sanity of the prisoner.”28

Davis announced a departure from the burden structure established in Oneby.29 Under Davis, the defendant dislodged the presumption of sanity merely by producing on the issue of insanity. The burden then shifted to the prosecution to prove sanity beyond a reasonable doubt.30 Thus Davis treated sanity as an element of the prosecution’s case once the defendant properly raised the issue. Society’s interest in reliable and accurate verdicts justified this pro-defendant burden structure.

In 1952, in Leland v. Oregon,31 a state homicide statute that placed the burden on the defendant to prove insanity came under attack.32 Affirming the judgment of the Oregon Supreme Court,33 the Court upheld the validity of the statute, reviewing history and noting, “Oregon adopted the prevailing doctrine of the time.”34 The Court recognized that the approach announced in Davis was a departure from the previously explored history.35 The Court avoided the apparent collision between Davis and Leland simply and quickly, “[Davis] obviously establishe[d] no constitutional doctrine, but only the rule to be followed in federal courts. As such, the rule is not in question here [in Leland].”36 The Court noted that twenty-some states required the defendant to prove insanity by a preponderance of the evidence. Oregon, however, was the only state to require proof beyond a reasonable doubt but the increase in the quantum of proof, the Court stated, did not make a large enough constitutional difference.37 The Court declared that Oregon’s definition of the insanity defense did not run afoul of the Fourteenth Amendment despite the fact that the federal doctrine established in Davis may be fairer and wiser.38 After Davis both the burden allocation for a critical fat and the quantaum of proof required to carry that burden were cast into uncertainty.

In 1970 the Court, in In re Winship went a long way to clarify the constitutional questions that remained after Davis. In Re Winship elevated the Court’s pro-defendant holding in Davis to a constitutional requirement.39 The Court held in no uncertain terms that the constitution required the people to prove every fact necessary to constitute the conviction, beyond a reasonable doubt. Winship made clear that the reasonable doubt standard was critical to American criminal procedure, both as a primary tool to reduce risk of factual error and as vital substance to the “bedrock and elementary” principle of the presumption of innocence.40 Given the constitutional stature of the beyond a reasonable doubt standard, Winship appeared to reduce the amount of discretion legislatures may exercise in defining crime.41 Winship also identified a policy and two inquiries to determine whether a fact requires proof by the prosecution beyond a reasonable doubt. 42

The policy concern in Winship is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”43 To serve this societal interest and safeguard the defendant’s due process rights, two factors are especially relevant, the defendant’s loss of liberty and the stigma attached to a conviction.44 If a fact can cause increased loss of liberty, that fact is subject to Winship protection (proof by the people beyond a reasonable doubt). If the stigma attached to a conviction is increased by the finding of a fact then that fact is subject to Winship protection.

Furthermore, Winship protects the defendant’s rights based on the operation and effect of a law without regard to its statutory language and structure.45 Winship raised important questions about the continued viability of the reasoning employed in both Oneby and Leland. Under the Oneby rule the fact of malice certainly seems to be a fact necessary for the purposes of Winship. May the states ever constitutionally require a defendant to prove the fact of heat of passion or any other affirmative defense? Even though the Court cited Leland v. Oregon as support for its holding in Winship46, are these cases reconcilable? On what grounds does Leland survive Winship? The stage is set to try to answer the question, what constitutes a crime?

III. Conflict Within a Doctrine

A. The First Round 1975-1977: A Rift Appears

In 1975, the Court unanimously embraced Winship’s holding in Mullaney v. Wilbur.47 At issue in Mullaney was the constitutionality of Maine’s homicide statute, which required a defendant to prove “heat of passion” by a preponderance of the evidence.48 Maine’s statute, which generally adhered to the Oneby reasoning, required the defendant to prove “heat of passion” in order to mitigate murder to manslaughter.49 The Mullaney Court identified “heat of passion” as the fact that differentiated murder and manslaughter and recognized a trend in most states for the prosecution to prove the absence of that fact.50 The Court then applied the factors identified in Winship, loss of liberty and stigmatization, to the fact at issue, “heat of passion.”51 Despite arguments offered by the Maine Supreme Judicial Court that revolved around the form of their homicide statute,52 the Court declared that Winship “requires an analysis that looks to operation and effect of the law as applied and enforced by the state.”53

The Court compared the facts of Winship to the facts of Mullaney and concluded that the interests protected in Winship were implicated to an even greater degree in Mullaney.54 The Court began with the loss of liberty factor; petitioner in Winship faced an 18-month civil commitment with possible extensions of six years, the petitioner in Mullaney faced a differential in sentencing ranging from a fine to a mandatory life sentence.55 Next, the Court addressed the societal interest related to confidence in judgments and the stigma attached to conviction. The Court noted that the juvenile adjudication in Winship was intended to be “benevolent” and thus potentially less stigmatizing whereas the criminal proceeding in Mullaney involved some of society’s most severe penalties and therefore the most severe stigma.56

The Court acknowledged possible difficulties the prosecution could encounter by negating “heat of passion,”57 but noted that the requirement to prove a negative was not new to the criminal justice system.58 The Court concluded, because Maine required the defendant to prove “heat of passion” by a preponderance of the evidence “he can be given a life sentence when the evidence indicates it is as likely as not that defendant 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 only guilty of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter.”59

On June 17, 1977 the Court decided the fate of two states confronted with issues arising out of the Mullaney decision, North Carolina and New York. At issue in Hankerson was whether North Carolina, after having modified their criminal procedure prospectively to comply with Mullaney,60 properly declined to apply Mullaney retroactively. The Court stated that Mullaney and Winship were designed to diminish the possibility that an innocent person is convicted.61 The strength of the interests protected by the reasonable doubt standard prompted the Court to declare Winship and therefore Mullaney retroactive.62

North Carolina argued that the state had justifiably relied on the old rule and retro activity would be devastating to the state’s administration of justice.63 The Court dismissed this argument because the main purpose of the new constitutional doctrine was to overcome an aspect of a criminal trial that substantially impaired the truth-finding function and raised serious questions about the accuracy of judgments.64 North Carolina could not escape the reach of Mullaney even if only to apply the holding prospectively.

New York received much kinder treatment from the Court that day in Patterson v. New York. New York potentially faced the prospect of invaliding its homicide statute based on the Court’s holding in Mullaney.65 The New York Court of Appeals expressed its view in People v. Patterson, “[T]he New York law of homicide differs significantly from the Maine law struck down in Mullaney.”66 Surprisingly, the Supreme Court agreed.67

The Patterson Court highlighted that crime prevention was more the business of the states than of the federal government and that only a violation of a fundamental principle of justice warrants intervention.68 This deference to the states echoes the Court’s remarks made in Leland v. Oregon.69 The Court drew support for its position from the concurring opinion of Justice Rehnquist and Chief Justice Burger in Mullaney. The Mullaney concurrence stressed that in deciding Mullaney the Court was not overruling Leland. In Leland, the Oregon statute required a separate hearing for insanity after the prosecution had otherwise established their case. The Patterson Court stressed that the statute at issue did not include malice, i.e. lack of “extreme emotional disturbance”, as part of the prosecution’s case. 70 New York defined “extreme emotional disturbance”, New York’s version of Maine’s “heat of passion”, separately in the statute as an affirmative defense.71 Because the people retained the burden of proof on all elements listed in the definition of the crime, the Court deemed the statute constitutional.72

The Patterson dissent opined, “In the name of preserving legislative flexibility, the Court drains In Re Winship of much of its vitality.”73 Comparing the Maine homicide statute struck down in Mullaney with the New York statute at issue in Patterson,74 the dissent pointed out that the defect in the Maine statute was the allocation of the burden of persuasion to the defendant with respect the crucial factor between murder and manslaughter.75 New York’s revised statute paralleled Maine’s forbidden practice. New York treated “extreme emotional disturbance” as an affirmative defense which required a defendant to carry the burden of persuasion on the issue.76 The dissent concluded that New York’s “extreme emotional disturbance” was undeniably the modern equivalent to Maine’s “heat of passion”. 77

Patterson questioned the pro-defendant doctrine established in Winship.78 Can the states do an end-run around Winship with adept statutory draftsmanship despite the Court’s cryptic warning in Patterson that there are constitutional limits beyond which the states may not go?79 What do the Winship factors i.e. the loss of liberty and stigmatization mean after the Court allows a defendant to prove the crucial difference between murder and manslaughter? Part B discusses the resurrection of Winship in Apprendi v. New Jersey80 that marks the beginning of “the second round” of the Court’s struggle to determine the necessary ingredients of a crime. Part B demonstrates that in a repeat of history, the Court gives Apprendi, the new champion of Winship, contradictory treatment in Ring v. Arizona81 and Harris v. US,82 perpetuating the confusion that Hankerson and Patterson revealed 25 years prior.

B. The Second Round, 2000-2002: The Rift Reappears

Winship resurfaced with renewed vigor in the Court’s 2000 decision of Apprendi v. New Jersey.83 At issue in Apprendi was the constitutionality of a “sentencing factor” that was not included in the indictment and found post-trial by a judge by a preponderance of the evidence. This “sentencing factor” subjected the defendant to a sentence beyond the statutory maximum authorized by the jury’s verdict.84 The Court held that the New Jersey statute violated both the Due process of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment.85 Winship–like, the Court emphatically held that any fact that increases the penalty beyond the statutory maximum prescribed by law must be charged in the indictment, submitted to a jury and proven beyond a reasonable doubt.86 The Court recognized that while law may change over the centuries and still remain true to the constitution, basic practice must still adhere to the rudimentary principles of trial by jury.87 The Court turned to Winship to give content to those rudimentary principles. Thus, any fact that subjects a defendant to a heightened loss of liberty or stigmatization requires proof by the prosecution beyond a reasonable doubt. The Court also clarified that Winship protection extended beyond guilt and innocence to the degrees of an offense.88 Apprendi reinvigorated these constitutional principles in language that, like Winship and Mullaney, implicated our fundamental understandings of criminal procedure.

Two terms later on June 24, 2002, in Ring v. Arizona89 the Court embraced the Apprendi logic by extending it to capital sentencing. At issue in Ring was whether Arizona could sentence a defendant to death based on a post-trial finding by a judge beyond a reasonable doubt.90 This Arizona practice passed a constitutional analysis twelve years prior in Walton v. Arizona. In 1990, the Court in Walton specifically held the Arizona practice at issue in Ring constitutional.91 Walton held that facts found by a judge qualified as sentencing considerations, according to statutory definition, and not as elements of capital murder.92 To resolve the tension created by the Court’s decision in Apprendi, which prohibited increases to the maximum sentence without the attendant constitutional protections, the Court concluded that Walton could not withstand the logic of Apprendi and Walton was overruled. 93

In overruling Walton, the Ring Court used language reminiscent of Mullaney. The Arizona Supreme Court, in an attempt to reconcile state practice with Apprendi, argued that their statute authorized either life imprisonment or death as the only sentencing options upon conviction for first-degree murder. The jury verdict could support either sentence and therefore did not increase the maximum sentence.94 Arizona’s argument failed to recognize that under Apprendi the “relevant inquiry is not one of form but one of effect.”95 Despite the structure of the statute, as a practical matter, death would not be imposed without the finding of an aggravating circumstance by a judge.96 The Arizona statute authorized a sentence of death “only in the formal sense,” and if Arizona prevailed on this argument “Apprendi would be reduced to meaningless and formalistic rule of statutory drafting.”97

Arizona also attempted to rely on a distinction between a fact labeled a “sentencing factor” and one labeled an “element.” The Court stated that Apprendi rendered this argument untenable. The Ring court construed Apprendi to stand for the proposition that whether a fact is characterized as a “sentencing factor” or an “element” is not determinative on the question of who decides that fact, judge or jury.98 The Court’s decision in Ring seemed to raise serious doubt the continued viability of distinctions based solely on statutory drafting. However, the other opinion that day, Harris, interpreted these constitutional principles somewhat differently.

At issue in Harris was whether “brandishing,” included as an aggravator in a federal statute,99 should be treated as an element of the crime or “sentencing factor.”100 Reminiscent of Leland and Patterson, the Court in Harris began its opinion by recognizing that the constitution permits legislatures the freedom to define crimes.101 The Court sought to determine whether brandishing was intended by the legislature to be an “element” or a “sentencing factor”.102 The analysis began with the observation that most federal laws define elements in a single sentence followed by the sentencing factors in separate subsections.103 Even if a statute has this structure, the Court noted, there may be compelling text in the statute to the contrary, as was the case in Jones v. U.S.104

Defendant in Harris principally relied on Jones. In Jones, the Court held that subsections of federal carjacking statute were to be treated as elements of three separate crimes despite the structure of the statute that suggested only one crime.105 Defendant in Harris had three main arguments. First, Defendant argued that, like Jones, the statute at issue created three crimes as opposed to one and therefore, brandishing should have been charged in the indictment and proved to a jury beyond a reasonable doubt.106 The Court stated that the statute in Jones provided for a “steeply higher” punishment based on a finding of bodily injury, a fact that had been traditionally regarded as part of the elements of the crime,107 as opposed to Harris where the statute increased only the minimum sentences.108 The Court therefore concluded that the Harris statute created only one crime with brandishing as a “sentencing factor”.109

Second, the defendant argued that the doctrine of constitutional avoidance should require the Court to read any doubt out of the statute by construing it to create three crimes as opposed to one.110 As to this argument, the Court simply stated that the doctrine of constitutional avoidance only applied if there are serious concerns about the statute’s constitutionality and safeguards for minimum sentencing were rejected in McMillan v. Pennsylvania. Defandant’s second argument brought the Court to the , central issue raised in Harris -- did Apprendi overrule McMillan? 111

Where Apprendi controls the increases to maximum sentences by requiring proof by the people beyond a reasonable doubt regardless of statutory form, McMillan allows increases to minimum sentences based on legislative discretion. The issue in McMillan was whether a Pennsylvania judge could find a fact post-trial by a preponderance of the evidence. The McMillan Court held that such a practice was constitutional because the finding of the “sentencing factor”(visible possession of a firearm) increased only the minimum sentence that must be imposed. The McMillan court upheld the state statute and declared that McMillan was controlled by Patterson and not by Mullaney.112

The central reasoning from McMillan upholding mandatory minimum “sentencing factors” was that the “statute 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.”113 The Harris Court declared that reasoning to still control.114 Thus a “sentencing factor” is upheld if it has been traditionally defined as such by the legislature115 and operates to constrain only the range of penalties available, i.e. increases to the minimum sentence.116

Admitting that the facts at issue were both stigmatizing and punitive, the Harris Court found no reason to believe the framers of the constitution would have considered such facts to be elements.117 Under Apprendi, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”118 But under McMillan facts that increase only the minimum sentence need not be, based on the notion that legislative definition of crime is usually dispositive.119 The Harris Court held that “[w]ithin the [sentencing] range authorized by the jury's verdict,… the political system may channel judicial discretion--and rely upon judicial expertise--by requiring defendants to serve minimum terms after judges make certain factual findings.”120 Thus the plurality concluded that Apprendi and McMillan co-exist and that McMillan controls Harris.

At first blush, the plurality reasoning seems sound, until the question is asked -- where is Winship? The Harris dissent criticized the majority opinion as resting on either a misunderstanding or a direct rejection of the principles established in Apprendi; and, that Apprendi should overrule McMillan.121 The dissent focused on the reality that an increase in the minimum sentence decreased the range of penalty.122 For example, in Harris, without a finding of “brandishing” the sentence would be not less than five years; with a finding of “brandishing” the sentence would be not less than seven years.123 The smaller range available to the sentencing judge would therefore result in the possibility of greater punishment. The dissent cited Apprendi:

If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and stigma attaching to the offense are heightened; it necessarily follows that the defendant should not -- at the moment the state is put to proof of those circumstances-- be deprived of protections that have, until that point unquestionably attached.124[emphasis added]

Apprendi & Mullaney scrutinize the effect a law has on the defendant. The statute at issue in Harris stated that the mandatory minimum sentences increased both the loss of liberty and stigmatization of the defendant.125 Yet, the Harris plurality maintained that it did not matter that facts associated with the mandatory minimum sentences provided for special stigma and punishment.126 As a practical matter, a 7-year sentence was only imposed upon a finding of “brandishing”.127 The fact of “brandishing” appears to be the only difference between a 5-year and 7-year minimum sentence, like “heat of passion” was the difference between murder and manslaughter in Mullaney.

After Harris, in the spirit of Patterson, legislatures may seemingly do an end-run around Winship and Apprendi. Statutes providing for increases only to the minimum sentence while assigning a severe maximum sentence could circumvent the Apprendi rule.128 The Harris approach suggests that a critical factor is whether or not a fact has historically been considered by judges in sentencing. The cryptic warning to legislatures the Court issued in Patterson, that there are constitutional limits beyond which the states may not go has yet to gain any useful definition.129

So how are the elements of a crime determined for the purposes of the prosecution’s burden? After Ring and Harris that question gains a sharper focus in the current judicial debate and becomes: What is the difference between a “sentencing factor” and an “element” of the crime?130 Harris seems instructive. First, If the “sentencing factor” in question operates to impose a greater sentence within the range of punishment authorized by a jury verdict i.e. increase the minimum sentence; that fact need not be found by the jury beyond a reasonable doubt.131 A fact that only affects the minimum sentence may, however, be treated as an element if there is significant historical evidence to show that the fact has been traditionally treated as an element.132 Second, Harris looks to the nature of the increase. A “steeply higher” penalty conditioned on a particular fact indicates that the fact should be treated as an element.133

These relevant inquiries identified by the Harris court seem straightforward, but clarity, in this respect, is illusory in light of Ring and its predecessors Apprendi, Mullaney and Winship. First, the determination of whether a fact increases the minimum sentence is entirely a matter of statutory definition.134 Thus a statute could avoid the Apprendi rule and the attendant constitutional protections provided by Winship with “clever statutory drafting.”135

Under Harris, the only restraint on the legislature is the cryptic warning from Patterson that indeed there are constitutional limits. Harris does not seem to offer any substance to that warning beyond the inquiry into the historical treatment of the fact at issue. The historical treatment of a fact was central to the Court’s holding in McMillan.136 History, however, may not always be a reliable indicator of the true nature of a fact.137

The fact of “brandishing” increased Mr. Harris’ minimum sentence by two years, from five to seven years, but may not affect his actual sentence. The defendant in Jones faced an increase in the minimum sentence from 15 years to 25 years.138 The defendant in Mullaney faced a difference in sentence ranging from a minimum of a fine to a maximum of life imprisonment based on a finding of “heat of passion.” Both Mullaney and Jones involved, at least from a numerical standpoint, what would appear to be “steeply higher” penalties. In both cases, the Court construed the facts at issue to operate as elements of the crime. In comparison, Mr. Harris’ increase of two years appears not to be “steeply higher.”

This analysis breaks down in light of Winship. A 40% increase in the sentence probably seemed steeply higher to Mr. Harris. Furthermore, to condition constitutional protection on the numbers that a legislature has historically attached to a fact is to ignore what Winship essentially stands for. Winship demands the scrutiny of the effect a law will have on the defendant without regard for how a legislature saw fit to define it.

Ring and Harris renew the rift in the doctrine that was exposed by the Patterson and Hankerson decisions. Ring falls in squarely behind Winship, Mullaney and Apprendi. Harris aligns itself with McMillan and Patterson. These two lines of cases attempt to answer the same question of whether a fact is an element in fundamentally different ways.139 Winship provided a principled approach to identify when a fact is a “fact necessary”; an approach designed to safeguard the constitutional rights of the defendant. Winship and its progeny are rooted in fundamental constitutional protections that implicate our basic understanding of the criminal law, and resonate in the notion that “it is better to let 10 guilty men go free than convict one innocent man.”140 These fundamental understandings compelled the Court in Mullaney, Apprendi and Ring to look behind the letter of the statute, to disregard the legislative label attached to a given fact to discern whether constitutionally guaranteed rights were violated. 141

Harris, however, substitutes the scrutiny of the “operation and effect” of the law with a deference to the legislatures charged with the duty of defining and enforcing the criminal law. The Harris rule allows legislatures to avoid close constitutional scrutiny under both Apprendi and Winship simply by altering only the minimum sentence despite special punishment or stigma.142 This rule rests on the embattled distinction that a fact “raising the floor” of a sentence within a range already authorized by a jury is constitutionally different from a fact that would result in a sentence exceeding the one authorized by the jury. Justice Breyer noted this tension in his concurring opinion in Harris when he recognized that in terms of logic it is not easy to distinguish Harris from Apprendi.143

IV. Time to Pick a Side?

Resolution of the conflict between Ring and Harris could, generally, take two forms. First, the “substance and effect” holding of Apprendi could be extended to include any fact that increases either the minimum or the maximum sentences. Alternatively, the legislative deference position of Patterson could allow legislatures to define crime restrained by currently undefined constitutional limits.144 Under Apprendi, prosecutors must be certain to include all the potentially necessary facts in the indictment.145 New York to this day has retained the affirmative defense that the Court deemed constitutional in Patterson.146 It seems as though we are be able to live with either Patterson or Apprendi - but not both.

Justice Thomas advocated a rule broader than the one adopted by Court in Apprendi.147 Justice Thomas’ survey of judicial practice dating back to 1840 revealed a common law rule of including in the indictment those facts that affect the level of punishment sought.148 This rule applied both to facts that formed the basis for either imposing or increasing punishment.149 This formulation holds that a legislature defines a core set of facts as a crime and any fact that increases the punishment is an element of a new aggravated crime.150 Therefore, the only relevant inquiry becomes whether a given fact bears on the degree or the range of penalty - if it does, then that fact is an element. The indictment would be required to contain these “elements” and the prosecution would have to meet a burden of persuasion beyond a reasonable doubt to be entitled to the punishment associated with those “elements”.151

The application of this rule would wipe away the distinction between facts that increase the maximum and facts that increase the minimum. This rule reflects the principles that animated the Court’s decision in both Winship and Mullaney, the “bedrock and elementary” importance of the presumption of innocence, a presumption guarded by the proof beyond a reasonable doubt standard for every fact necessary. By definition, only those facts that increase loss of liberty will be implicated by this rule and because stigma is largely a function of punishment this factor will be addressed as well.

Such a rule could result in overruling McMillan, Harris and Patterson. The holdings of Harris and McMillan seem contrary to any rule that focuses on the range of penalties. Incidentally, Patterson seems to have been implicitly overruled by the Apprendi logic already. Apprendi held that any fact that increases the maximum sentence must be included in the indictment and proven by the people beyond a reasonable doubt.152 In Patterson, extreme emotional disturbance was neither charged nor proven by the people and the absence of that fact increased the possible punishment and stigma from manslaughter to murder.153

The Court’s precedent is not sacrosanct.154 The Court demonstrated its willingness to overrule in Ring when Walton fell. Stare decisis itself should not prevent the Court from protecting the “bedrock and elementary” presumption of innocence.155 Other consequences relevant to the adoption of this rule could include appeals in New York raised by defendants convicted under its homicide statute, provided the rule was held retroactive.156 The result would not be unlike the situation North Carolina faced after Hankerson. After Apprendi, the future of the Federal Sentencing Guidelines was in question, the fall of “sentencing factors” could mean the end of determinate sentencing.157

V. Conclusion

Courts have long struggled to determine the bundle of facts that if proved authorize society’s most serious sanctions, the loss of liberty or death.158 Courts throughout history have looked to the past to decipher the appropriate formula to determine the prosecution’s burden.159 History’s guidance produced Mullaney in 1975, grounded on fundamental understandings of criminal law extolling the virtues of the constitutional protection of the accused.160 Two terms later, that history gave us Patterson, rooted in the principle of a state’s right to define the criminal law.161 The two cases had facts that differed only by a legislative decision to attach a different label to the functionally equivalent “extreme emotional disturbance” and “heat of passion”.162

2000 gave us Apprendi and the resurgence of the ideals that animated Mullaney. Two terms later, Harris and Ring repeated the rift that Hankerson and Patterson revealed 25 years before. However, the Winship, Mullaney & Apprendi logic appears compelling and leads to an end: “[A]ll facts essential to imposition of the level of punishment that the defendant receives--whether the statute calls them elements of the offense, sentencing factors, or Mary Jane--must be found by the jury beyond a reasonable doubt.”163

1 397 U.S. 358 (1970).

2 For the purposes of this note, a “fact” is something that is not be defined as an “element” but given its nature, could be construed as an “element” for the purposes of determining the people’s burden of proof. “Elements” are defined as such in a criminal statute or otherwise in the common law and are necessarily part of the people’s burden of proof beyond a reasonable doubt. Thus the critical question becomes: When is a fact an element? The Court in Jones v. U.S., 526 U.S. 227(1999) described the importance of the distinction. “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.” Id. at 232.

3 Winship, 397 U.S. at 364.

4 Id. at 362.

5 421 U.S. 684 (1975).

6 See Id. at 699 (1975)(“Winship is concerned with substance rather than…formalism).

7 432 U.S. 233(1977).

8 432 U.S. 197 (1977).

9 Id.

10 Id. at 205 (“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.”)Id.

11 Winship, 397 U.S. at 364.

12 Id. at 432 U.S. at 216(Powell, J. and Brennan, Marshall, JJ., dissenting) (“In the name of preserving legislative flexibility, the Court today drains [Winship], of much of its vitality.”)Id.

13 432 U.S. 233.

14 Id. at 240-244.

15 530 U.S. 466 (2000)

16 122 S.Ct. 2428.

17 536 U.S. 545, 122 S.Ct. 2406.

18 The Harris Court decided that McMillan v. Pennsylvania, a case following Patterson, was not overruled by Apprendi. For further discussion, see infra Part III. B. The Second Round, 2000-2002: The Rift Reappears.

19 See Apprendi v. N.J., 530 U.S. 466, 501(2000) (Thomas. J., concurring)

20 Id.

21 92 Eng. Rep. 465, 2 Ld. Raym. 1485 (K.B. 1727).

22 Id. “Heat of passion” as a mitigating circumstance for homicide is also referred to as, “sudden provocation” or “extreme emotional disturbance.” See Model Penal Code § 210.3 (2001); NYPL §125.25(1)(a)(2001).

The Oneby Rule was subsequently adopted in the United States in famous case of Commonwealth v. York, 50 Mass. 939 (1845). Chief Justice Shaw came to this conclusion after an extensive survey of authority, which began with a determination of the meaning of malice. Bromage v. Prosser, 4 Barn. & Cres. 255 (supporting the proposition that while malice in its common usage means ill will towards a person, malice in its legal sense means only a wrongful act done intentionally and without excuse); Wills v. Noyes, 12 Pick. 324; Commonwealth v. Snelling, 15 Pick. 340 (recognizing the difference between legal and popular meaning of the term malice and describing the legal meaning as “any act done willfully and purposely, to the injury of another, which is unlawful, is as against that person, malicious.”). C.J. Shaw next turned to authority to support the use of presumptions against the defendant. The King v. Dixon, 3 M. & S. 11(“it is a universal principle, that when a man is charged with doing an act of which the probable consequence may be highly injurious, the intention is an inference of law resulting from doing the act,….”). C.J. Shaw finished his discussion by citing authority for the specific proposition that a defendant must disprove the natural presumption of malice to mitigate the crime to manslaughter. The King v. Oneby, 92 Eng. Rep. 465,2 Ld. Raym. 1485 (K.B. 1727) (“Where a man is killed the law will not presume a sudden quarrel, unless it is proved to be so.”). C.J. Shaw concluded, “I have thus endeavored to establish the proposition, and it seems most abundantly proved, that when the fact of voluntary homicide is shown, and this not accompanied with any fact of excuse or extenuation, malice is inferred from the act.”

23 160 U.S. 469, 477(1895) (“The law presumes all men are sane; therefore the government does not have to furnish any evidence to show that this defendant is sane.”)Id. at 477.

24 Id.

25 As a practical matter Oneby made it easier for the prosecution to convict while the Davis Court adopted a rule that required the prosecution to prove more “elements” to convict.

26 Id. at 485-86.

27 Id. at 488.

28 Id. at 489(paraphrasing, People v. McCann, 16 N.Y. 58 (1857))

29 See supra text accompanying notes 23,24 (discussing Oneby)

30 This burden structure operates as defense as opposed to an affirmative defense where the defendant would bear the burden by a preponderance of the evidence. For a sample of statutory text defining both a defense and an affirmative defense see infra note 66.

31 343 U.S. 790 (1952).

32 Id at 793.

33 State v. Leland, 190 Or. 598, 227 P. 2d 785 (1951).

34 Leland, 343 U.S. at 793. The court cited the famous English decision in M’Naghten’s Case to support the proposition that “since most men are sane, a defendant must prove his insanity to avoid responsibility for his acts.”Id. at 796.

35 Leland, 343 U.S. at 797.

36 Id.

37 Id. at 798.

38 Id. at 799.

39 397 U.S. 358, 364 (1970).

40 397 U.S. at 363; The Court cited nine cases (including Leland and Davis) to support the proposition that “…it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.” Id. at 362. The Winship Court rejected the argument that there is only tenuous difference between the reasonable-doubt and preponderance standards and refers to the facts of the case where a judge was able to distinguish between the two standards and could find quilt by a preponderance that he may not have found beyond a reasonable doubt. Id. at 367-68; Id. at 364 (“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 the people in doubt whether innocent men are being condemned.)Id.

41 For example, in Winship New York was denied the discretion to assign a preponderance standard for purposes of conviction of a crime. Winship, 397 U.S. at 365.

42 The policy and factors identified in Winship are discussed fully in the next section. See infra Part III.

43 Winship, 397 U.S. at 372 (Harlan, J., concurring).

44 These principles are alluded to throughout the majority opinion. They are succinctly stated in Justice Harlan’s concurrence. Id. Subsequently, these factors are adopted by the court in Mullaney v. Wilber, 421 U.S. 684 (1975). Mullaney is discussed further in the next section. See infra Part III.

45See Mullaney v. Wilbur, 421 U.S. 684, 699 (1975) (“Winship is concerned with substance rather than…formalism).

46 Winship, 397 U.S. at 362.

47 421 U.S. 684 (1975).

48 Id. at 685.

49See infra text accompanying notes 22, 23.

50 Id. at 692-96; see supra Part II

51 Id. at 697-99.

52 See State v. Lafferty, 309 A.2d 647 (1973).

53 Mullaney, 421 U.S. at 699 (quoting St. Louis S.W.R. Co. v. Arkansas, 235 U.S. 350 (1914))

54 Id. at 700.

55 Id.

56 Id.

57 Id. at 701. See State v. Wilbur, 278 A.2d 139 (1971).

58 Id. at 700-01. The Court supported these arguments with examples specific to Maine. The court noted that Maine’s burden would be mitigated due to objective rather than subject nature of the proof required and that Maine already assumed the burden to prove a negative, the absence of self-defense beyond a reasonable doubt. Id. at 702.

59 Id. at 703-704(paraphrasing In Re Winship, 397 U.S. at 372(1970) (Harlan. J., concurring)).

60 Hankerson v. North Carolina, 432 U.S. 233, 238(1977).

61 Id. at 242.

62 The Court declared Winship fully retroactive in Ivan V. v. City of New York, 407 U.S. 203(1972). The court reiterated the notion that the reasonable doubt standard gave substance to the bedrock and elementary principle of the presumption of innocence. Id. at 204.

63 Hankerson, 432 U.S. at 242.

64 Id. at 243(quoting Ivan V. v. City of New York, 407 U.S. 203, 204(1972))

65 In People v. Balogun, 372 N.Y.S. 2d. 384(1975) Judge Hugh McShane did just that in his Kings county trial court. He converted the ‘affirmative defense’ of extreme emotional disturbance that imposed a burden of proof on the defendant by a preponderance of the evidence to a ‘defense’, which imposed a burden on the prosecution to disprove that fact beyond a reasonable doubt once properly raised. Judge McShane recognized that Maine’s homicide statute invalidated in Mullaney was functionally equivalent to New York’s.

The New York Penal Law (2001) provides in relevant part:

§25.00 Defenses; burden of proof.

When a “defense” other than an “affirmative defense,” defined by statute is raised at trial, the people have the burden of disproving such a defense beyond a reasonable doubt.

When a defense declared by statute to be an “affirmative defense” is raised at trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.

§125.25 Murder in the second degree

A person is guilty of murder in the second degree when:

With intent to cause death of another person, he causes the death of such person or of a third person; except that in prosecution under this subdivision , it is an affirmative defense that:

(a) The defendant acted under the extreme emotional disturbance….

66 39 N.Y.2d 288,297 (1976)

67 Patterson, 432 U.S. at 201.

68 Id.

69 Leland, 343 U.S. at799-80(noting the Court’s holding in Davis was “fairer and wiser” but Oregon’s practice did not violate fundamental notions of justice).

70 Patterson, 432 U.S. at 205.

71 Patterson, 432 U.S. 198-99, see also N.Y. Penal Law supra note 66.

72 Patterson, 432 U.S. at 205.

73 Id. at 216 (Powell, J., Brennan, J., Marshall,. J., dissenting)

74 Id.

75 Id. at 217.

76 Id.

77 Id. at 220.

78 See Huigens, infra note 160.

79 See King & Klien, infra note 143 at 1485 (discussing the formalism aspect of the doctrine underlying Apprendi).

80 530 U.S. 466 (2000).

81 122 S.Ct. 2428 (2002).

82 122 S.Ct. 2406 (2002).

83 530 U.S. 466 (2000). Apprendi sparked a flurry of commentary regarding its potential effect on criminal procedure, particularly the continued viability of determinate sentencing schemes. see e.g., Rosemary T. Cakmis & Fritz Scheller, Federal Sentencing Guidelines, 53 Mercer L. Rev.1413 (2002)(discussing the 11th Circuit’s approach to dealing with Apprendi related claims); Matthew J. Berman et al, Thirty-First Annual Review of Criminal Procedure, IV. Sentencing, Sentencing Guidelines, 90 Geo. L.J. 1753 (2002) (reviewing criminal procedure under the guidelines and summarizing cases); see also King & Klien, infra note 143; Levine infra note 158.

84 Apprendi, 530 U.S. at 491-92. “The New Jersey statutory scheme that Apprendi asks [the Court] to invalidate allows a jury to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree, N.J. Stat. Ann. § 2C:43-6(a)(1) (West 1999), based upon the judge's finding, by a preponderance of the evidence, that the defendant's "purpose" for unlawfully possessing the weapon was "to intimidate" his victim on the basis of a particular characteristic the victim possessed. In light of the constitutional rule explained above,… this practice cannot stand.” Id.

85 Apprendi, 530 U.S. at 476.

86 Id. at 476. The Holding from Apprendi was foreshadowed by the court the year before in Jones v. United States, 526 U.S. 227(1999). Jones is discussed more fully in connection with the Discussion of Harris v. U.S. See infra text accompanying notes 111-28.

87 Id. at 483-84.

88 Id.

89 122 S.Ct. 2428 (2002).

90 Ring, 122 S.Ct. at 2432. (“This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant's guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.”) Id.

91 497 U.S. 639 (1990).

92 Ring, 122 S.Ct. at 2433.

93 Id.

94 Id. at 2436.

95 Id. (quoting Apprendi, 530 U.S. at 494)

96 Id.

97 Id.

98 Id. at 2437.

99 The statute at issue was 18 U.S.C. § 924(c)(1)(A). The statute provides in relevant part:

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime--

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. Harris, 122 S.Ct. at 2411-12.

100 Harris, 122 S.Ct. at 2411.

101 Id.

102 Id at 2412.

103 Id.

104 526 U.S. 227 (1999).

105 Id.

106 Id.

107 Jones v. U.S., 526 U.S. 227, 232-33 (1999).

108 Harris, 122 S.Ct. at 2412-13.

109 Id.

110 Id.

111 Id.

112 McMillan, 477 U.S. at 86.

113 Id. at 2416 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 89-90 (1986)).

114 Id.

115 Harris, 122 S.Ct. at 2412 (“Tradition and past congressional practice, for example, were perhaps the most important guideposts…”)Id.

116 Harris, 122 S.Ct. at 2412.

117 Id. at 2416.

118 Apprendi, 530 U.S. at 490.

119 McMillan, 477 U.S. at 85. (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.

120 Harris, 122 S.Ct. at 2419.

121 Id at 2422(Thomas, Stevens, Souter, JJ., & Ginsburg, J., dissenting).

122 Harris, 122 S.Ct. at 2424 (Thomas, Stevens, Souter, JJ., & Ginsburg, J. dissenting) (“This constitutional limitation neither interferes with the legislature's ability to define statutory ranges of punishment nor calls into question judicial discretion to impose "judgment within the range prescribed by statute." Apprendi, 530 U.S. at 481, 120 S.Ct. 2348.

123 Harris, 122 S.Ct. at 2424(Thomas, Stevens, Souter JJ., & Ginsburg, J., dissenting).

124 Id. (quoting Apprendi, 530 U.S. at 484) (Thomas, Stevens, Souter, JJ., & Ginsburg, J. dissenting).

125 Harris, 122 S.Ct. at 2415(“It does not matter, for the purposes of the constitutional analysis, that in statutes like the Pennsylvania Act the "State provides" that a fact "shall give rise both to a special stigma and to a special punishment.") Id.

126 Id.

127 Harris, 122 U.S. at 2425 (Thomas, Stevens, Souter JJ., & Ginsburg, J., dissenting).

128 See King & Klien infra note 143.

129 Patterson v. New York, 432 U.S. at 210; McMillan v. Pennsylvania, 477 U.S. at 86 (“While we have never attempted to define precisely the constitutional limits noted in Patterson, i.e., the extent to which due process forbids the reallocation or reduction of burdens of proof in criminal cases, and do not do so today.”)

130 A “sentencing factor” does not, by definition, have to be found by a jury beyond a reasonable doubt therefore it is not subject to Apprendi, an “element” however always is.

131 Id.

132 Id. at 2416.

133 Id. at 2412.

134 As a matter of federalism the states possess the plenary police power. See U.S. v. Lopez, 514 U.S. 549,561 n.3 (1995) (“Under our federal system, the States possess primary authority for defining and enforcing the criminal law….Our national government is one of delegated powers alone. Under our federal system the administration of criminal justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States. When Congress criminalizes conduct already denounced as criminal by the States, it effects a change in the sensitive relation between federal and state criminal jurisdiction.” Id.; see generally, Edward D. Re, Federal-State Relations: The Allocation and Distribution of Powers of Government in the United States, 15 St. Thomas L. Rev. 265 (2002).

135 Harris, 122 S.Ct. at 2425 (Thomas, J., dissenting).

136 Id. at 2416.

137 Court’s have often turned to a survey of precedent to support their findings often with contradictory results. See supra Part III.

138 Jones, 526 U.S. at 231.

139 The two approaches can be thought of in terms of substance over form, with respect to Winship, Mullaney, Apprendi and Ring. Leland, Patterson, McMillan and Harris would represent form over substance.

140 Winship, 397 U.S. at 372. (Harlan, J., concurring).

141 See supra Part III A.

142 In Mullaney the Court warned of the danger of conditioning Winship protection on state statutes. This warning seemed to predict the controversial issue of sentencing factors that the Court is now struggling with. “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.” Mullaney, 421 U.S. at 698; See, Nancy J. King & Susan R. Klien, Essential Elements, 54 Vand. L. Rev. 1467, 1485(2001) (arguing that legislatures will modify criminal statutes to test the limits of Apprendi).

Justice Stevens’ dissent in McMillan specifically objected to the Pennsylvania statute that provided certain facts would violate the Winship factors of loss of liberty and stigmatization. (“[I]f 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.”) 477 U.S. at 95 (Stevens, J., dissenting).

143 Id. at 2420-21 (Breyer, J., concurring).

144 See supra note 130.

145 See Levine infra note 158.

146 See N.Y. Penal Law supra note 66.

147 Apprendi, 530 U.S. at 500(Thomas, J., concurring).

148 Id. at 510(Thomas J., concurring)(“ [T]he indictment must allege whatever is in law essential to the punishment sought to be inflicted." quoting 1 J. Bishop, Law of Criminal Procedure 50 (2d ed. 1872)).

149 Id. at 512.

150 Id. at 501.

151 Id.

152 Apprendi, 530 U.S. at 502.

153 See supra text accompanying notes 66-80.

154 Ring, 122 S.Ct. at 2442.

155 Id.

156 See Huigens, supra note 160 at 457(arguing for non-retroactivity).

157 See Id. (discussing Apprendi’s impact on the Federal Sentencing Guidelines); see also Andrew M. Levine, The Confounding Boundaries of “Apprendi-land”: Statutory Minimums and the Federal Sentencing Guidelines, 29 Am. J.Crim. L. (2002)(discussing the possible interpretations of Apprendi and its past effect and possible future effect on sentencing).

For further discussion of the sentencing guidelines, See Daniel J. Freed, Federal Sentencing in the Wake of the Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681 (1992); Gerald W. Haney, The Reality of Guideline Sentencing: No End to Disparity, 28 Am. Crim. L. Rev. 161(1991); Marc Miller, True Grid: Revealing Sentencing Policy, 25 U.C. Davis L. Rev. 587(1992).

158See supra Part II. For a real life account of society’s most serious sanctions, see Robert Blecker, Haven or Hell? Inside Lorton Central Prison: Experiences of Punishment Justified, 42 Stan. L. Rev. 1149 (1990) (analyzing conditions inside a prison and offering justifications for punishment).

159 See King & Klien supra note 143; see also Kyron Huigens, Solving the Apprendi Puzzle, 90 Geo. L.J. 287 (2002).

160 Mullaney, 421 U.S. at 692 (“Our analysis may be illuminated if this issue is placed in historical context.”)

161 Patterson, 432 U.S. at 202 (“It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, …and that we should not lightly construe the constitution so as to intrude upon the administration of justice by the individual States.”).

162 See supra text accompanying notes 79-80.

163 Ring, 122 S.Ct. at 2444 (Scalia, J., concurring).

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