Academic journal article Stanford Law Review

From Winship to Apprendi to Booker: Constitutional Command or Constitutional Blunder?

Academic journal article Stanford Law Review

From Winship to Apprendi to Booker: Constitutional Command or Constitutional Blunder?

Article excerpt

INTRODUCTION
I. FROM WINSHIP TO BOOKER: AFFIRMATIVE DEFENSE AND PRESUMPTION
     DEBATES REDUX?
II. THE HANDS OF GOVERNMENT ARE ALL OVER THE CRIMINAL JURY'S
     INFERENTIAL PROCESS
     A. Judicial Branch
     B. Legislative Branch
     C. Executive Branch
CONCLUSION

INTRODUCTION

The Supreme Court has a remarkable history of blunders and retreats when it comes to the relationship between the Constitution and substantive criminal law, and it is in the process of committing another one, in our view. There are at least eight instances in which the Court has handed down a case with dramatic potential to subvert substantial parts of the criminal law, only to later more or less withdraw from the field:

1. In Robinson v. California, (1) the Court implied that the Constitution permitted the federal courts to patrol the relationship between culpability and punishment and to override legislative judgments about such matters. In only a few years (a typical pattern, as we shall see), in Powell v. Texas, (2) the Court, perhaps recognizing its blunder, (3) converted its wide-ranging opinion about culpability into a narrow opinion about voluntary acts.

2. In a conceptually identical and thus equally misguided foray, the Court implied that the mental element was subject to constitutional regulation in United States v. Dotterweich, (4) only to retreat from that implication in Morissette v. United States (5) and United States v. Park. (6)

3. In 1972, the Court seemed to announce to the world that the death penalty was unconstitutional, (7) only to note in 1976 that reports of its demise were greatly exaggerated. (8)

4. In a series of cases that bear on the subject of this Issue, the Court suggested that the many ways in which the law influences jury deliberations through instructions on inferences and presumptions raised serious constitutional difficulties, (9) only to relegate the entire area to practical insignificance. (10)

5. In a series of cases directly relevant to this Issue, the Court first announced that it was taking seriously the offhand reference in In re Winship (11) that "every fact necessary to constitute the crime with which [the defendant] is charged" (12) has to be proved beyond a reasonable doubt, including the venerable common law affirmative defense of provocation, (13) only to discover two years later that that was not really so if the State substituted an updated but highly similar defense of extreme emotional disturbance. (14) As it turned out, it was "not really so" with a vengeance--even self-defense, which plainly negates culpability, could be made into an affirmative defense, (15) leaving the obvious question of whether anything at all was left of Mullaney, besides the quite curious constitutionalizing of drafting instructions to the effect that "[i]f you want to have the common law defense of provocation, just say so directly rather than accomplishing the identical result through the use of the word 'presume' or its derivatives."

6. Even the drafting lesson of Mullaney and Patterson did not long survive. It seemed to be applied when, in Sandstrom v. Montana, (16) the Court struck down a statute that employed the term "presume," largely because it did apply the term (there being no other obvious reason for the decision (17)). Yet, earlier in the same Term the Court, in Ulster County Court v. Allen, (18) upheld a statute that used the term multiple times--ironically, in a situation where the defendant was more significantly disadvantaged by its use than the defendant in Sandstrom.

7. Solem v. Helm (19) seemed to redeem the promise of Weems v. United States (20) and Rummel v. Estelle (21) that the federal courts were going to begin patrolling the imposition of criminal sentences through the Eighth Amendment proportionality principle, a redemption quickly undone in a series of subsequent cases. (22)

8. Similarly, the Court seemed to suggest in Thompson v. …

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