By Sherry F. Colb
In my Verdict column for this week, I discuss the case of Alleyne v. United States. In Alleyne, the Supreme Court recently held that under the Sixth Amendment right to jury trial, a criminal statute may not raise the mandatory minimum sentence on the basis of a fact-findings by the judge in the case. In my column, I discuss the appealing features of Justice Thomas's majority opinion so holding, but I ultimately conclude (spoiler alert!) that Chief Justice Roberts's dissenting opinion is more compelling.
In this post, I want to explore an assumed feature of the Sixth Amendment jury trial right jurisprudence -- that this right protects criminal defendants by requiring that juries rather than judges do the fact-finding that exposes defendants to higher sentencing ranges, at both the high and low ends of the range. Here is my question about this assumption: Might it be difficult for the jury to really do this protective job without knowing what punishment (or sentencing range) is associated with a particular crime?
This question is inspired, somewhat indirectly, by a case from more than ten years ago in which a man named Ed Rosenthal stood trial in federal court for cultivating marijuana. Then, like now, federal law prohibited the cultivation of marijuana, even when the purpose of such cultivation was to provide medicine for people suffering from nausea, wasting, glaucoma, and other conditions for which mairjuana provides some relief. In California at the time, also like now, California state law authorized the cultivation and sale of marijuana for medicinal purposes. This state law regime, however, did not and does not alter the federal ban. Essentially, what we had then and have now is an activity that is legal and regulated under state law in California but which is a criminal offense under federal law.
At his federal criminal trial, the jury found Rosenthal guilty of offenses surrounding his cultivation of marijuana, crimes that carried a mandatory minimum sentence of five years imprisonment. The jury had no idea when it found Rosenthal guilty that his marijuana cultivation had occurred for medicinal purposes and that he had acted as an agent of Oakland under California's own regulation of medical marijuana production. After the trial, when the jury learned of these facts, its members expressed outrage. Had they known these facts, they said, they never would have convicted.
I wrote about the Rosenthal case here, and I have also written about jury nullification, here (among other places). Nullification was at issue in Rosenthal's case because under federal law, the fact that someone was growing marijuana for medicinal purposes is legally irrelevant, since there is no such recognized federal defense for cultivating marijuana. Therefore, if the jury had acquitted on the basis of this fact -- as various members suggested they would have done -- they would have been engaged in jury nullification, the practice of finding a criminal defendant not guilty of an offense despite the jury's belief that there was proof beyond a reasonable doubt of each fact making up a legal element of that offense.
Rosenthal's case came to my mind here because the jury was fully empowered to find every fact that made up a component of the offense at issue under federal law, and it did so before the judge was in a position to impose the corresponding sentence on the basis of those factual findings. Nonetheless, members of the jury were in the dark about facts that -- were they known to the jury -- might have altered its choice of verdict.
One response to this concern is to say that the jury has no right to information that is legally irrelevant to an offense. Were we discussing a different sort of criminal case, moreover, a person quite sympathetic to Rosenthal's plight might appreciate the irrelevance of some facts that the jury would like to know. Imagine, for example, that we were living in earlier times when white juries were unwilling to convict a white defendant of the murder of an African American victim. Imagine further that the jury in a particular case was somehow kept ignorant of the fact that the victim in a given case was African American, an unlikely state of affairs, to be sure, but bear with me. The jury convicts but then learns that the victim was African American and expresses outrage at the concealment of this information, indicating that had it known of the victim's race, it would have acquitted. Clearly, few of us would feel much sympathy for the defendant's right to be protected from a criminal law that holds a victim's race to be legally irrelevant, right?
But sentences seem potentially different from legally irrelevant facts. If federal law holds, for example, that medical marijuana is legally equivalent to recreational marijuana, then perhaps it is fair to have kept Rosenthal's reason for growing marijauana from the jury. What is wrong is not so much what the jury knows but, rather, the substantive content of federal criminal law here. But can the same be said about the penalty?
When the jury reviews the evidence, we trust the jury to make sure that a defendant is not convicted of an offense and then sentenced to the associated punishment for that offense unless and until the jury finds any and all facts that trigger application of the sentence or sentencing range that goes with the crime in question. Yet one of the facts that just about every juror would be very interested in knowing at the time of bringing back a conviction for a crime is what will happen to the defendant if we say that he or she is guilty?
Unlike questions about legally irrelevant features of a criminal offense, moreover, the associated penalty is arguably a question to which that the jury ought to know the answer. After all, what makes the jury's fact-finding more protective than a judge's is, presumably, that jurors are not part of the system and are able to be critical of the system in ways that a judge or the legislature might not be. A judge, for example, might be so used to sentencing people to prison time that the question of proportionality seems barely to register, and the legislature may actually have a strong incentive to impose disproportionate penalties for crimes so they can say they are "tough on crime" at election time. But the jury may be able to see the defendant as an individual and thus to protect him or her from an overreaching government.
One sort of overreaching, of course, is the failure to mount a sufficiently strong case to prove guilt beyond any reasonable doubt, and the Sixth Amendment properly aims at addressing that concern. But another sort of overreaching is in the imposition of draconian penalties. And without having any idea what those penalties (or what the lower or upper end of the ranges of those penalties) might be, it can perhaps be said that the jury is trying the facts in something of a factual vacuum.
Now the predictable response may be that there is little difference between the nullification that I condemn above and the penalty nullification that I seem to be praising as a potentially valuable feature of the Sixth Amendment jury trial right. After all, just as the legislature gets to decide what is a crime and what is not (and whether some particular fact does or does not qualify as a defense for that crime), so then does the legislature get to decide what penalties (or ranges of penalties) attach to those crimes: these judgments, in other words, are legal rather than factual judgments, and the jury is not entitled to make legal judgments.
Yet I think, at least tentatively, that facts about the crime that are legally irrelevant are different from facts about the punishment that follows. The legally irrelevant facts about the crime are facts that the legislature has decided are neither aggravating nor mitigating, and keeping them from the jury prevents the jury from second-guessing the definition of the crime. Punishments, however, and punishment ranges, are not legally irrelevant per se -- after all, juries do sometimes play a role in sentencing (for example, in many capital cases). It accordingly might better serve the Sixth Amendment right if juries were able not only to determine whether each factual predicate were properly met but also to at least opine on sentencing as well, maybe by letting the judge know that if the range is 2-10 years, that they believe she should err on the side of leniency.