McMillan v. Pennsylvania

PETITIONER:McMillan
RESPONDENT:Pennsylvania
LOCATION:United States District Court for the Western District of New York

DOCKET NO.: 85-215
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of Pennsylvania

CITATION: 477 US 79 (1986)
ARGUED: Mar 04, 1986
DECIDED: Jun 19, 1986

ADVOCATES:
Leonard N. Sosnov – on behalf of Petitioners
Steven J. Cooperstein – on behalf of Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – March 04, 1986 in McMillan v. Pennsylvania

Warren E. Burger:

Mr. Sosnov, you may proceed whenever you are ready.

Leonard N. Sosnov:

Mr. Chief Justice, and may it please the Court:

The principal issue before this Court is whether Pennsylvania’s Mandatory Sentencing Act violates due process of law because it provides for proof by only a preponderance of the evidence of the legislatively specified defense-related facts which require the imposition of a mandatory sentence of imprisonment.

The Mandatory Act provides that if a defendant is convicted of one of the numerated list of felonies, the Commonwealth may give notice of its intention to proceed under that act rather than Pennsylvania’s discretionary sentencing scheme.

Warren E. Burger:

Do you suggest that that particular provision goes to anything other than the sentence, the penalty?

Leonard N. Sosnov:

Yes.

This type of sentencing scheme is totally different from any other type of nonmandatory sentencing scheme.

In fact, the proceeding under the Pennsylvania Mandatory Sentencing Act is essentially a trial.

There is only one issue at that proceeding.

The Commonwealth gives notice of its intention to proceed under the Act.

A hearing is required by the Act.

At that hearing there is but one issue, the same issue that is normally at a criminal trial, and the issue is did the defendant commit the prohibited conduct which the state wishes to punish?

In this case, the question is did defendant visibly possess a firearm during the commission of criminal activity.

At that hearing, the Commonwealth has the burden of proof by only a preponderance of the evidence.

If the Commonwealth establishes the facts by preponderance of the evidence, a sentence of imprisonment of five to ten years must follow.

Thurgood Marshall:

I think what the Chief Judge is driving at, if the arm, the pistol was in evidence at the trial itself and was Exhibit A, what more do you need?

Leonard N. Sosnov:

As a matter of state law–

Thurgood Marshall:

Yes.

Leonard N. Sosnov:

–If at the trial the pistol was exhibited in evidence, and even if defendant was convicted of an offense such as possession of an instrument of a crime, it is irrelevant under this statutory scheme.

This statutory scheme is set up so that the hearing is held separately, and that if a defendant–

Thurgood Marshall:

Well what hearing do you need more than to look at the pistol?

Leonard N. Sosnov:

–Justice Marshall, we would not be here, we would have no complaint if in fact the factual determinations, visible possession of a firearm during the commission of an offense, had to be proven beyond a reasonable doubt at trial and that defendant had a right to a jury trial.

The deficiency with this statute is that those factual determinations do not have to be made at trial, and that defendant–

Thurgood Marshall:

Well, suppose the jury in a special verdict said he did shoot the man, he did rob the man with a pistol?

Leonard N. Sosnov:

–If the jury was given, under Pennsylvania procedure–

Thurgood Marshall:

Yes.

Leonard N. Sosnov:

–special interrogatories that provided the question: did the defendant visibly possess a firearm during the commission of the offense, and the jury was instructed you must find that beyond a reasonable doubt, defendant had a right to a jury determination of that under Pennsylvania law, there would be no constitutional claim.

Warren E. Burger:

Did you ask for that instruction?

Leonard N. Sosnov:

We could not ask for that instruction.

The Act is clear.

Warren E. Burger:

You could not?

Leonard N. Sosnov:

We could not because the Act is clear.

As a matter of state law–

Warren E. Burger:

Well, wait a minute, wait a minute now.

The First Amendment, if nothing else, would guarantee you the right to make any objection you wanted to.

The statute has nothing to do with that.

The statute might control how the judge would rule, but it would have nothing to rule with what kind of an objection you could make to raise it.

And for all you know, the judge might have said that he was going to read the statute that way.

Leonard N. Sosnov:

–If the judge did that, he would be violating state law.

In other words, the judge would be making rulings that were directly contrary to what is required by this statute.

This statute is very specific, It states the applicability of this section is to be determined at sentencing, so that if the judge decided on his own I want to have this determination made at trial, I want all four of the factual issues determined at trial: did the defendant possess a firearm visibly during the commission of an offense, if I wanted to do that at trial, a judge would be violating state law.

The reason we are here is because this–

William H. Rehnquist:

You would still, you would still have to make the determination at sentencing, I take it, under state law, even if the judge went ahead and wrongly decided he would also find it at the trial.

Leonard N. Sosnov:

–Not only that, the finding at trial would be irrelevant and nonbinding because the Act is clear that the procedure is one to take place at sentencing, and that the burden of proof is by only a preponderance of the evidence.

That’s why the verdicts are irrelevant at trial.

In fact, there was a recent case… it is not in my brief.

It was just reported last week, Commonwealth v. Storm, at 502 Atlantic 2d, 215, a Superior Court case where defendant pled guilty to robbing a bank at gunpoint and the judge proceeded to impose the mandatory sentence of five to ten years.

The Superior Court reversed because the Superior Court held that under this statutory scheme, the defendant was denied the hearing at sentencing where either side could present evidence, and the determination as to be made whether there was proof by a preponderance of the evidence.

We would have no complaint if this statute, like all the other statutes across this country, I have attached as appendixes to my brief, the way this is normally done in every state in this country, the way it has always been done, when this factual determination determines a more severe punishment, proof beyond a reasonable doubt is required, and it doesn’t matter what form such a statute takes, whether it is explicitly an element of the offense, such as an armed robbery statute, or whether it’s a separate offense, such as a prohibition against committing a felony with a firearm, or whether it’s part of a penalty provision, for example, Section 924 of Title 18 of the U.S. Code that’s entitled “Penalties” and it provides for increased punishment if a defendant committed an offense with a firearm.

Under all these kinds of statutes, historically and consistently it’s been recognized proof beyond a reasonable doubt is required, and that’s because this is an essential, critical fact in the manner in which the crime was committed which in the eyes of the legislature, the legislature has determined makes the offense more serious and which makes the penalty for the offense more serious.

Pennsylvania and New Jersey, which has passed a similar act, stand alone.

These are the only two states in this country that have ever had this legislatively specified factual determination and not required proof beyond a reasonable doubt.

They require proof by only a preponderance of the evidence.

As I said, they stand alone.

In each of the cases before this court, there was no hearing held pursuant to the Mandatory Sentencing Act because after the Commonwealth gave notice of its intention to proceed under the act, the lower court judges held the act unconstitutional.

Lewis F. Powell, Jr.:

May I ask this question?

Do you agree that each of your petitioners was lawfully convicted of the offenses for which they were charged?

Leonard N. Sosnov:

Yes, they were lawfully convicted for the offenses which they were charged with.

Lewis F. Powell, Jr.:

So you are only debating the enhancement of the sentence?

Leonard N. Sosnov:

I am only debating the application of the Mandatory Sentencing Act, that that act is unconstitutional.

Lewis F. Powell, Jr.:

And is it not a fact that each of the petitioners could have been sentenced to more than the mandatory add-on sentence if the Court had so decided?

Leonard N. Sosnov:

No.

As a matter of fact, as to three of the four defendants, under the discretionary sentencing scheme, the sentence of five to ten years in prison mandated by this act is the maximum for that offense, and for one of the defendants, the maximum penalty was greater than five to ten years.

What they have lost, of course, under a scheme like this is they have lost the opportunity for a much lesser sentence, and there’s nothing wrong with a state having a mandatory sentencing act.

Warren E. Burger:

How would they… how would they get that, by proving that there was no firearm involved?

Leonard N. Sosnov:

To get a lesser sentence?

The defendant would not have that burden.

Normally–

Warren E. Burger:

No, since the state was claiming it, would… if I win a defense, he would be free, or they, any one of them would be free to shore that there was no firearm involved.

Leonard N. Sosnov:

–Any defendant would be free in any criminal prosecution to cite, to prove anything, but the question here I believe is what burden of proof the state has to meet to provide for a more severe punishment.

In effect here, what Pennsylvania has done is create two classes of felonies.

Right now, aggravated assault, for example, carries one punishment while aggravated assault with a firearm carries a more severe punishment.

That is exactly what has been done here.

I have set it forth in a table in my reply brief.

The penalties are vastly different now for whether you commit an offense with a firearm or without a firearm.

Sandra Day O’Connor:

Well, Mr. Sosnov, you take the position that the due process clause requires the invalidation of this scheme, right?

Leonard N. Sosnov:

That is correct.

Sandra Day O’Connor:

What is the defendant were to be sentenced by a judge who simply takes the position that if somebody commits an assault with a firearm, by gum, I’m going to give him five years?

Is that a violation of due process because the judge determines that for himself and imposes the sentence?

Leonard N. Sosnov:

Do you mean under a discretionary scheme, Justice O’Connor?

Sandra Day O’Connor:

Sure.

Leonard N. Sosnov:

It would depend on how that arose.

If a judge took it on his own under a discretionary scheme to in every case, ignoring all the individual circumstances of the case, the background and character of the defendant, the other factors concerning the crime, and the judge said in every case that comes before me where defendant possesses a gun, I’m going to impose five to ten years imprisonment, that would be an abuse of discretion.

That’s been held by… it will be reversible on–

Sandra Day O’Connor:

If he says at least five years.

Leonard N. Sosnov:

–If he says, if he isolated the one factor and ignored his duty to consider all the discretionary factors, he would be committing an abuse of discretion.

It would be reversible on that ground, and additionally, it may be a violation of due process of law because, in effect, he’d be ignoring the state’s discretionary sentencing scheme.

The difference, I think the key difference between a scheme like this–

John Paul Stevens:

Mr. Sosnov, in these cases do we know what sentences would have been imposed apart from the mandatory statute?

Leonard N. Sosnov:

–Yes, we do, because each of the defendants in this case, because the lower court judge concluded that the Mandatory Act was unconstitutional, in each of these cases the judge imposed a sentence based on the discretionary scheme.

Leonard N. Sosnov:

We have sentences here ranging from 11 1/2 to 23 months imprisonment on the low end, to four to eight years.

Each of the four defendants has received a sentence below that mandated by the Mandatory Sentencing Act.

The essential difference between a discretionary sentencing scheme where a judge considers a whole host of factors, indeed, must in deciding on a proper sentence to impose, and this sentencing scheme, is it is nothing like these other sentencing schemes.

It is simply like a trial.

There is only one issue.

The issue is did the defendant commit the prohibited conduct?

In essence, what Pennsylvania has done here is they have set up a bifurcated trial proceeding.

You first determine at trial, for purpose of this act, beyond a reasonable doubt did the defendant commit a robbery, and then you take the tradition element of the offense, was he armed, and you determine that after trial by a preponderance of the evidence.

That is all that has happened here.

Once we get beyond the label of sentencing, it’s a lot like the Winship case.

In Winship there was a claim it’s a juvenile adjudication.

It’s only civil.

Therefore there’s no need for the reasonable doubt standard, and what this Court did is it examined the operation of the statute, and the operation of the adjudicatory scheme for juveniles was that a juvenile was accused of committing conduct which the state wished to punish, essentially a criminal act.

And if those facts were found, if those facts were established, then confinement could result as a proof of those facts.

That is exactly what we have here.

We have only one issue at this hearing, the issue, did he do it?

Did he commit the conduct the state wishes to punish?

And if in fact those facts were established, the Judge has no choice the inevitable consequences follow just like at a trial, five to ten years imprisonment.

If in fact in a situation like this the constitutional line is not drawn here and Pennsylvania is permitted to do this, Pennsylvania and New Jersey, aside from the whole trend of our jurisprudence, there is really no place to draw the constitutional line because in essence, and in Mullaney v. Wilbur, this Court emphasized this, this Court emphasized the problem that a state might take the traditional element of the offense, the state might transpose that traditional element of the offense into a sentencing statute where it had the exact same effect on the defendant.

William H. Rehnquist:

Well, counsel, what if in this case the elements of the crime had not included committing it with a gun and at the sentencing stage the judge says, well, I notice in the probation report here that you had a gun when you committed this assault, and I always take that into consideration in sentencing someone, so I am giving you three years instead of six months, would that be a violation of anything in the federal Constitution?

Leonard N. Sosnov:

The judge, as long as the judge did his duty, as I responded before to Justice O’Connor’s question, as long as the judge did his duty, considering all the factors, he certainly could consider this factor, and the difference between a proceeding like that an this proceeding is there are no legislatively specified facts which have to be determined by the judge and which have inevitable consequences which follow.

As this Court said in Bullington v. Missouri, in both the majority opinion and the dissenting opinion, the normal sentencing proceeding is not a search for facts.

It is a question of looking at the character of the defendant, his conduct, his past background, and meting out just desserts, considering a whole host of factors.

Warren E. Burger:

Well, aren’t those facts?

Aren’t all those factors facts?

Leonard N. Sosnov:

That’s right, but the process is completely different because the process, unlike a trial, the process is not a search for legislatively defined issues, and they don’t have inevitable consequences which follow just like at a trial.

In other words, to impose… if this Court, for example, said there must be proof beyond a reasonable doubt for every fact at a sentencing proceeding, that wouldn’t make much sense for a lot of reasons.

One reason is it would be impractical.

In other words, in every sentencing proceeding, the factors that a judge considers in the characterization of the defendant will vary.

There will be a whole host of different factors in every sentencing proceeding.

Leonard N. Sosnov:

It would be impractical to have a minitrial on each fact, each incidental fact which went into a judge’s consideration of sentencing.

Again, it would be impractical to have a shifting burden of proof to examine every sentencing hearing, look at that sentencing hearing and decide, well, on this sentencing hearing I’ve got–

Thurgood Marshall:

I know you answered it a little while back, but just once again, this trial, a gun is in evidence, is Exhibit A, there are 87 witnesses that testify that he held up the person with the gun, and the jury finds that he held up the person with the gun, my only question now is what evidence could he give to save himself?

Leonard N. Sosnov:

–In some cases, obviously unless we had this hearing where a preponderance of the evidence was the standard, the separate hearing, in some cases defendant is going to lose.

In other words–

Thurgood Marshall:

Well, I mean… just give me the evidence that any person you can imagine would give.

Leonard N. Sosnov:

–In that particular situation?

Thurgood Marshall:

Yes.

Leonard N. Sosnov:

I would think if he wanted to he might come up with some countervailing evidence, but he would probably lose, but that’s true with any burden of proof.

Thurgood Marshall:

But you agree, you agree there was no way he could escape being said to have had the gun.

Leonard N. Sosnov:

There would be–

Thurgood Marshall:

Is there any way?

Leonard N. Sosnov:

–In that hypothetical, in that hypothetical, it would be very difficult, even if the proof burden was beyond a reasonable doubt, for that defendant to have a chance of prevailing and winning at it.

Thurgood Marshall:

Well, what good would the hearing do?

Leonard N. Sosnov:

The same, Justice Marshall–

Thurgood Marshall:

I mean, I’ve given you whatever hypothetical you could imagine.

Leonard N. Sosnov:

–Justice Marshall, but the same… I think the problem with that hypothetical is the same hypothetical could be given for trial.

In other words, a man approaches trial and there are 87 witnesses who say they saw him commit a robbery, that he visibly possessed a firearm and he committed a robbery, 87 witnesses, the defense has no witnesses to offer, would this Court, if the jury was charged or state law provided that a conviction could be by preponderance of the evidence, this Court would not tolerate that.

It’s not a question of retrospectively looking back at the facts in a particular case and saying in that particular case what would have been that defendant’s chances of winning at a higher standard of proof.

The burden of proof regulates–

Warren E. Burger:

I understood, I understood Justice Marshall’s question to be directed at in the second hearing, what would you prove to offset the evidence in the case in chief?

Leonard N. Sosnov:

–That will vary from case to case.

Warren E. Burger:

Well, take this case, then.

Leonard N. Sosnov:

I will take, for example, in Mr. McMillan’s case, given this statutory framework, in Mr. McMillan’s case, Mr. McMillan was convicted at trial of aggravated assault, of shooting another individual.

He was tried by a jury.

There was one witness against Mr. McMillan at trial, and that witness had a criminal record, and that witness first told the police, I don’t know who shot me.

He was the sole witness against Mr. McMillan, the jury was out quite a long time.

Mr. McMillan wanted to testify at trial that he didn’t do it, but because he, too, had a criminal record and the judge ruled that the criminal record would be admissible at the trial, Mr. McMillan decided not to testify at trial.

Mr. McMillan at sentencing again said he didn’t do it.

If Mr. McMillan had had a separate hearing, a hearing with a burden of proof by more than preponderance of the evidence, a burden of proof beyond the reasonable doubt, Mr. McMillan may indeed prevail before the judge at that hearing.

Leonard N. Sosnov:

In other words, the judge could be faced with conflicting versions of the same event by two different people.

Thurgood Marshall:

Well, in order to do that, would the judge have to say I was wrong in convicting you?

Leonard N. Sosnov:

No.

Thurgood Marshall:

Well, how could he?

Leonard N. Sosnov:

First of all–

Thurgood Marshall:

He’s going to say one, he had a gun, another time he didn’t have one?

Leonard N. Sosnov:

–In this, in this, Mr. McMillan’s case, the jury was the factfinder, so the judge did not find the facts.

And Pennsylvania law has provided that indeed that’s the procedure.

The procedure is that at the hearing there is a separate determination, and at that separate determination, either side shall present whatever evidence they wish to offer.

Thurgood Marshall:

If we rule with you, what outcome will you and your clients get other than a hearing?

Leonard N. Sosnov:

If you rule our way, our clients will be sentenced as they are pursuant to a valid, discretionary sentencing scheme.

Thurgood Marshall:

They would still go to jail.

Leonard N. Sosnov:

They’ve all gone to jail.

Thurgood Marshall:

Yes.

Leonard N. Sosnov:

They’ve all gone to jail.

We have no complaint about them going to jail.

We are asking that they be sentenced pursuant to a valid discretionary scheme rather than a constitutionally invalid scheme, and in this Court in Hicks v. Oklahoma said that defendant certainly has a due process liberty interest in being sentenced pursuant to a valid discretionary scheme.

Warren E. Burger:

–Well, isn’t what you want a… you want this second hearing all over with a different burden of proof?

Leonard N. Sosnov:

It does not have to be a second hearing.

Every state in this country… we are not asking for two trials with a jury.

Warren E. Burger:

You don’t want a hearing with the burden of proof beyond a reasonable doubt?

Leonard N. Sosnov:

We are saying that Pennsylvania does not have to do it as a second hearing with proof beyond a reasonable doubt and a jury trial; Pennsylvania can provide that all this be done at trial.

In other words, if Pennsylvania provides that proof beyond a reasonable doubt of visible possession of a firearm during the commission of the defense is to be determined by the jury trial, like–

Sandra Day O’Connor:

But that isn’t what Pennsylvania did.

So what Pennsylvania wants done is to have it done at the sentencing hearing.

Leonard N. Sosnov:

–By a lower burden of proof and without a jury trial, and that’s why it is violating the Constitution.

Sandra Day O’Connor:

You started your argument, Mr. Sosnov, with the assertion that, well, this only involves Pennsylvania and New Jersey, but what about the states that require by legislative action that restitution be ordered to victims of crimes where there’s been a pecuniary loss, and that the sentencing judge determine by a preponderance of the evidence how much is to be repaid by the defendant in restitution, would your argument reach those cases as well?

Would that be invalid?

Leonard N. Sosnov:

I don’t believe… I don’t believe it would be governed because–

Sandra Day O’Connor:

Why?

Sandra Day O’Connor:

It’s a legislatively mandated fact that has severe consequences for the defendant.

Leonard N. Sosnov:

–For one, it does not have the legislatively mandated deprivation of liberty that is involved in this case.

Sandra Day O’Connor:

–It might have if he doesn’t pay what’s ordered, off he goes to jail.

What about, and what about the enhancements for repeaters?

Leonard N. Sosnov:

That I think presents separate issues because it is not offense related.

Byron R. White:

Well, at sentencing some states impose the enhanced… determine whether he’s a repeater at the sentencing, a separate hearing by a judge.

Leonard N. Sosnov:

I think there are key differences there, and that is that this Court has always held, in Winshin, in Mullaney, that proof beyond a reasonable doubt is required for offense related facts, the question what did he do, what offense did he commit.

Historical facts such as his background, his prior record, have always been recognized as sentencing determinations.

We have no risk in that situation of the state taking elements of the offense and, putting them in a statute at a lesser burden of proof.

There’s an entirely different set of circumstances because, as this Court recognized in Oyler v. Boles, whether somebody is a recidivist is essentially independent of the crime which the defendant is accused of committing which the state is trying to punish.

With the Court’s permission, I would like to reserve my remaining time for rebuttal.

Thank you.

Warren E. Burger:

Mr. Cooperstein?

Steven J. Cooperstein:

Mr. Chief Justice, and may it please the Court:

First, to clarify one fact about this statute at issue, it is not an enhancement statute at all.

The statute sets forth a mandatory minimum sentence for certain violent felonies that is at all times within the pre-existing legislative range of authorized sentences, so this is not an add-on; this is merely… all this statute does is remove discretion from the sentencing court to sentence at the low end of the already legislatively determined scale, so that we don’t have the risk that the Pennsylvania legislature has tried to increase a defendant’s penalty by hiding an element of a crime and labeling it a sentencing factor.

John Paul Stevens:

Mr. Cooperstein, let me give you a hypothetical that keeps running through my mind.

Supposing you define the crime of homicide as the killing of another human being, and the sentence for that shall be anywhere from one year to life at the discretion of the judge: and in the second paragraph you said if it is proved at the sentencing hearing by a preponderance of the evidence that the killing was willful, there shall be a minimum sentence of 15 years, and that’s it, would that be permissible?

Steven J. Cooperstein:

No, I don’t believe that would be permissible.

That comes very close to Mullaney v. Wilbur–

John Paul Stevens:

Doesn’t it also… isn’t that precisely this case?

Steven J. Cooperstein:

–No, it’s not precisely this case.

The reason for that is that the state has not tried to distinguish between essentially grades of an offense, let’s take robbery.

The Pennsylvania legislature–

John Paul Stevens:

Well, it’s distinguished between robbery without a gun and robbery with a gun.

Steven J. Cooperstein:

–But each one… the key fact is how the state views the blameworthiness of an individual crime.

The state by setting for robbery, by setting a 20 year maximum, shows that it considers the crime of robbery at Knifepoint just as blameworthy as robbery at gunpoint.

It’s just that someone who commits a robber at gunpoint has no entitlement to a lenient sentence.

He may–

John Paul Stevens:

Why can’t a state treat all homicides as blameworthy, just as it treats all robberies as blameworthy, justifying a penalty up to life?

Steven J. Cooperstein:

–Because in Your Honor’s hypothetical, if the state considers the mental element to be a distinguishing factor between one sentence and a greater sentence, the mental element is so basic to all definitions of crimes that that is beyond the power of the legislature to rearrange.

The legislature may not take something so fundamental to the definition of what a crime is as intent and rearrange that.

That’s not what the Pennsylvania legislature has done here.

All it–

Thurgood Marshall:

Mr. Cooperstein, I doubt that you know the answer, but why did they just limit it to firearms and not knives and other deadly weapons?

Steven J. Cooperstein:

–I don’t know the answer to that.

There is a separate guideline scheme in Pennsylvania where if this mandatory sentencing scheme is not applicable, the sentencing judge must add 12 to 24 months to the minimum sentence if the defendant used any weapon.

Now, the judge has some discretion to get around that, but that’s any weapon.

Thurgood Marshall:

Any weapon–

Steven J. Cooperstein:

Yes.

Lewis F. Powell, Jr.:

–May I ask this question as to how the statute actually operates?

One of the petitioners, I think it was Mr. Smalls, was sentenced to four to eight years–

Steven J. Cooperstein:

Yes.

Lewis F. Powell, Jr.:

–Apply the minimum mandatory sentence to just what the actual sentence was initially.

Steven J. Cooperstein:

That is what the… the judge in that case and in all four of these cases declared the Mandatory Act unconstitutional and sentenced as if it did not exist.

Lewis F. Powell, Jr.:

I understand, I understand that, but on remand, and if we should affirm, if we should affirm the Supreme Court of Pennsylvania, what would the sentence for Smalls be?

Steven J. Cooperstein:

The sentence would be a minimum of five to ten years.

In Pennsylvania–

Lewis F. Powell, Jr.:

Minimum would be five to ten?

Steven J. Cooperstein:

–Yes.

In Pennsylvania, each judge must set a minimum and a maximum.

The minimum sets the parole eligibility date.

This statute speaks only to the minimum sentence, to the parole eligibility date, and says that it must be at least five years.

Lewis F. Powell, Jr.:

In other words, he must serve five years, but he could be required to serve another five?

Steven J. Cooperstein:

Yes.

Lewis F. Powell, Jr.:

Why beyond the eight that he was initially sentenced to?

Steven J. Cooperstein:

Because the… one missing fact is that under Pennsylvania law, the minimum sentence must be no greater than one half of the maximum, so that when it sets a minimum to be a mandatory five years, it in effect sets the maximum at a mandatory ten yeas.

Lewis F. Powell, Jr.:

Am I right that Peterson was sentenced from one to six year?

Steven J. Cooperstein:

Yes, Peterson.

Lewis F. Powell, Jr.:

What would his sentence be on remand?

Steven J. Cooperstein:

Her sentence would he five to ten.

Each of these defendants would receive a five to ten year sentence under, under if they were sentenced pursuant to this mandatory scheme.

Lewis F. Powell, Jr.:

So they would have five years they have to serve but the next five they could be paroled.

Steven J. Cooperstein:

Yes, that is correct.

Not only has the Pennsylvania legislature not increased the sentence available to any of these defendants, it also has not changed the definition of any crime.

It has retained as a separate crime possessing an instrument of the crime for which a defendant may be sentenced to five years in addition to whatever he is sentenced for his basic offense.

Of course, the prosecution maintains the burden of proving such a crime beyond a reasonable doubt, so that it has not–

Sandra Day O’Connor:

Mr. Cooperstein, what are the limits on the state’s power to take something that looks a lot like an element of a crime in most states and label it a sentencing consideration in your view?

What are the limits in your view?

Steven J. Cooperstein:

–Well, I think the limits are, one limit is clearly intent, that the state may not move around intent and put the burden on the defendant or give the prosecution a lesser burden.

Sandra Day O’Connor:

The mens rea element?

Steven J. Cooperstein:

Yes, yes.

Of course, there are exceptions for regulatory offenses.

John Paul Stevens:

May I test that with a question?

Supposing the crime of intentional stealing, call it larceny, whatever it might be, is punishable by a year to five… a year to ten years, say, and then they say, but if the amount stolen is over $1000, there shall be a minimum sentence of three years, and that amount could be proved by just a preponderance of the evidence, an old fashioned distinction between petty larceny and grand larceny?

Steven J. Cooperstein:

Yes, I believe–

John Paul Stevens:

The same intent in both cases.

I suppose they could rearrange that under your scheme.

Steven J. Cooperstein:

–I believe the state would be free to rearrange that, yes, and if I might continue answering your question, Justice O’Connor, I believe that Patterson v. New York makes it clear… gives some examples of the type of thing that a legislature may not do.

It may not declare a defendant presumptively guilty, and I think that goes beyond just a mere declaration.

A court can look at the way in which the legislature has defined its crimes, any way in which it has rearranged its crimes and determine what is it really sentencing the defendant for.

Here in this case it’s obvious that what the legislature has done is sentence… is declare sentencing practices for robbery, for aggravated assault, and for the other crimes.

It is clear that the legislature has not tried to impose a sentence for possession of a weapon and lightened the prosecution’s burden.

Sandra Day O’Connor:

I hear the words, but I don’t have a clear picture in my mind of what the constitutional line is in your view–

Steven J. Cooperstein:

Well, I think–

Sandra Day O’Connor:

–that this Court has drawn.

Steven J. Cooperstein:

–I think that one has to look at several different factors.

One that I think is primary in this case is that the legislature has not given the authority to increase any sentence, that as long as it’s within the existing statutory maximum, it has not tried to lighten the prosecution’s burden.

I don’t think that there is one fact that it is possible to point to and say anything over that line is too far and anything inside that line is fine.

I think that all of the… the whole statutory scheme has to be looked at.

Sandra Day O’Connor:

Well, could this statute have put the burden on the defendant to prove that he didn’t have visible possession of a firearm?

Steven J. Cooperstein:

I believe that that would have been permissible under the reasoning of Patterson v. New York, yes.

I might also add that when you look… one of the things to look at is the purpose behind the statute.

This was passed as an amendment to the sentencing code.

It was passed along with two like statutes, one of which imposed a mandatory minimum sentence for crimes committed on public transportation and the other is a recidivist section for these violent felonies so that it’s… when you look at what the Pennsylvania legislature did here, it’s quite clear that it was a bona fide sentencing statute, it was not some attempt to lighten the prosecution’s burden because it had difficulty obtaining convictions.

Byron R. White:

Well, what if… I take it you would… you probably would come out the other way if the statute had said, had set ten years for ordinary robbery but if it’s done with a gun, the sentence is twenty years.

Steven J. Cooperstein:

I believe that sets a much more difficult question.

Byron R. White:

Well, and the judge determines whether the… just like he would under this case, he would be permitted to find whether a gun was present by a preponderance of the evidence.

Steven J. Cooperstein:

But in one–

Byron R. White:

What’s the real difference between those two cases?

Steven J. Cooperstein:

–Well, I think Patterson makes clear that the way in which a state defines its crimes is entitled… is the dividing line, that when the state seeks to treat one class of robber different from another, it has taken upon itself the burden–

Byron R. White:

But if the judge determines at the sentencing hearing that the robbery was done with a gun, he shall impose twenty years.

Steven J. Cooperstein:

–However–

Byron R. White:

You think that’s just really just adding an element to the crime?

Steven J. Cooperstein:

–I’m not saying that that statute would be unconstitutional.

I said that that is a much more difficult question than this, than the statute at issue here.

I think under Patterson it may be a constitutional statute, the one that you have posed to me.

I might also add that, as I think was adverted to in Mr. Sosnov’s argument, a holding that this burden of proof is unconstitutional would have a widespread effect on sentencing.

Every sentencing judge acting responsibly is going to take into account the nature of the crime for which the defendant is convicted, and certainly a primary fact about that is what… how did the defendant accomplish its crime.

All the crimes in this Pennsylvania statute involve force or the threat of force.

All that is done here is the legislature has told each sentencing judge, if that force was accomplished by means of a firearm, this is how you shall weight that particular factor, so that this is not a radically different sentencing scheme; it merely directs the Court to make one factfinding and limits the judge’s discretion accordingly depending on what fact he finds.

Unless there are any other question, I will rely on its brief.

Warren E. Burger:

Very well.

Do you have anything further, Mr. Sosnov?

Leonard N. Sosnov:

Yes, Your Honor.

I would like to make a few points briefly.

First of all, it is not a factor: it is the factor, and that is why in essence Pennsylvania created two classes of felonies.

There’s inevitable consequences just as at trial when that additional fact is proven.

The line suggested by the Commonwealth of mens rea being the only element of an offense that cannot be switched to a sentencing statute, a mandatory sentencing statute, is ridiculous.

It’s no line at all.

Leonard N. Sosnov:

If the Commonwealth is correct, then our robbery statutes can be rewritten just like this statute to provide that beyond a reasonable doubt is required for proof that a defendant stole something, but the penalty of five to ten years would be mandated if at sentencing it is shown that there was force, physical force used in the taking.

They could take every traditional statute, take an aggravated assault statute which provides that the elements of the offense are that somebody struck somebody and serious bodily injury occurred.

According to the Commonwealth’s theory, since that did not involve mens rea the seriousness of the injury, you could take that fact out and put it in a sentencing statute; it would have the exact same effect on a defendant but on a lower burden of proof.

I think if we talk about a slippery slope here, the slippery slope is if this act is upheld because then basically, constitutionally, anything goes.

It will not affect in any way traditional discretionary sentencing hearings for this Court to hold this act unconstitutional.

A judge will be free, as he always has been free, and as the judges in these very cases did, to consider at sentencing every important factor, including if defendant had a gun.

Each of these cases the judge considered all of the factors mandated by a discretionary scheme, and in each case the defendant received a sentence of imprisonment.

However, what he did not receive is a mandated sentence of imprisonment based on proof by a preponderance of the evidence without a jury determination to critical facts.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The honorable Court is now adjourned until tomorrow next at 10:00.