JUDICIAL NULLIFICATION
BRUCE
I.
A.
ANTKOWIAKt
INTRODUCTION AND OVERVIEW
It is an act constituting felonious understatement to say that the
right to trial by jury has assumed a heightened importance in the
Criminal Justice System. Since the United States Supreme Court's
pronouncement in Apprendi v. New Jersey,1 there has been a continental shift not only in the structure of criminal sentencing but also in
the basic concept of power sharing throughout the system. When the
Supreme Court, in Blakely vs. Washington,2 said that it most certainly
meant what it said in Apprendi, which was: a jury, not a judge, has
the constitutional authority to make factual findings about a case
where those findings operate to extend the maximum penalty a defendant faces; the Blakely Court said more than just that it was time to
revisit a Guideline scheme of sentencing in which the parties sometimes engaging in the sophistry of whether someone's role was "minor"
rather than "minimal."3
t Assistant Professor of Law, Duquesne University. Professor Antkowiak is a
1977 graduate of the Harvard Law School where he received his degree Magna Cum
Laude. He served as an Assistant United States Attorney from 1977 to 1983 and has
spent over two decades as a criminal defense attorney in state and federal courts. He
joined the full time faculty in 2002 and teaches Constitutional Law, Federal Criminal
Law, Criminal Process and Trial Advocacy. He deeply acknowledges the contributions
made to this article by his research assistants, Elizabeth Burns, Sarah Cottrill and
Matthew Debbis.
1. 530 U.S. 466 (2000).
2. 124 S.Ct. 2531 (2004).
3. This reference is to that portion of the UNITED STATES SENTENCING GUIDELINES
(§ 3B1.2) that presents a judge with the factual issue of whether a defendant was a
'minimal" participant in the criminal activity, giving him a four point reduction in his
"Offense Level," a "minor" participant with a two point reduction, something in between
giving him, as you can guess, a three point reduction, or none of the above, leaving him
to the other mercies of those who wrote these Guidelines as, I always suspected, an ode
to the early works of B.F. Skinner. As the Guidelines authors helped "guide" the judge
by telling him or her that a defendant was "minimal" when he was among those "plainly
...the least culpable of those involved," and minor if he is one "who is less culpable
than most other participants, but whose role could not be described as minimal," perhaps the ode was to Lewis Carroll instead. See Application Notes 4 and 5 to § 3B1.2.
Were it not for the fact that a reduction of one to three points might translate into years
of a defendant's life, the matter would be nothing if not amusing. The ode will play on,
even though the Guidelines have been declared advisory and not mandatory. United
States v. Booker, 125 S.Ct. 738 (2005). A sentencing judge need not feel bound by them,
but must take them into account, Id. at 768, meaning, we may surmise, that the minimal vs. minor debate will rage on much as the one regarding angels and heads of pins,
and with about as much likelihood of rational resolution.
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In other words, the Blakely Court demanded that sentencing
judges see the world in a new way. They were to see their courtrooms
crowded with yet another group with specific authority to administer
the criminal justice system on a case by case basis. That overall authority was to be divided not just among the legislature, the executive
and themselves. A piece of that political pie was to be reserved for a
committee of the people, in the form of a jury, whose authorization
was needed before the others could properly act to punish one of the
governed, unless that "governed" agreed, by way of a guilty plea to
certain specific terms, to forego that authorization up to a defined
point.
This new world view will cause thoughtful judicial self-examination, as courts review their role juxtaposed to that of the two other
branches and the people as the authorizing authority. Judges will undoubtedly be tempted, in the first instance, to apply these new decisions using the broad notions of the science of political physics, that is,
by assuming that when some entity gains power within a political system, either the system as a whole has acquired more power than it
had before or that one or more of the old players have given up some of
their authority to the newly emerged entity.
In this mindset, judges will readily deduce that the Apprendi/
Blakely line of cases does not operate to gather more power within the
criminal justice system. 4 Rather, they limit the power of the traditional branches of government. Legislatures are still free to create offenses and fix penalties for them, and prosecutors are free to pursue
convictions under those defined crimes, but the system may no longer
allow the courts to treat the jury as a mere appendage to the judicial
branch of government. The people, by way of the jury, through the
device of fact-finding that determines the maximum sentence allowable, must be consulted as to the limits of the power the three branches
may exercise in a particular case. On their own, the governmental
players cannot define those limits by fact-finding made within their
exclusive purview.
As the system has gained no new authority, the "physics" of the
matter will seem to dictate that the presence of a newly recognized
participant means that the power of one or more of the original three
must necessarily recede. Naturally, judges will tend to view judicial
authority in sentencing as more confined by the perception that jury
4. The author has previously written regarding the Apprendi line of cases and has
sought to trace its modern origin to a Supreme Court decision in 1995 in United States
v. Gaudin, 515 U.S. 506 (1995). See Bruce A. Antkowiak, The Ascent of an Ancient Palladium: The Resurgent Importanceof Trial By Jury and the Coming Revolution in Pennsylvania Sentencing, 13 WIDENER L.J. 11, 15-19 (2003).
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fact-finding now operates in heretofore unrecognized ways to guide
the ultimate sentence, at least by defining its outer limit.
All of this is well and good. At least, it is what the Supreme Court
has dictated. However, it portends a severe danger. In this process of
judicial self-examination, courts are likely to bury even deeper a
power they hold that should, far from receding, burst to the surface of
our collective jurisprudential consciousness.
In defining the new contours of their roles, judges should openly
recognize an aspect of the sentencing process that is now and has always been an obligation for them to fulfill and an authority for them
to exercise. A guilty verdict, no matter what else it does, does not absolve the judge from entertaining and acting upon doubts he or she
has about the guilt of a defendant in the sentencing phase of the case.
Just as a judge's certainty about the culpability of a defendant should
inform the sentencing decision, a judge's doubts about the correctness
of the guilty verdict should be openly considered and weighed as a
factor arguing for a diminished penalty. This consideration should be
embraced as an effort to do substantial justice.
By espousing this thesis, I do not call for judges to see themselves
in Old Testament terms as standing in a line in which an omnipotent
God empowers Moses to represent the people before God, with Moses
then decreeing God's will through those laws, and appointing "men
who fear God"5 to sit as the first line of judgment over the law's enforcement. The thesis advanced here is faithful to the teaching of the
United States Constitution-that the origin of a judge's authority is
squarely in the hands of those individuals whose social contract is the
entirety of the source of our political legitimacy. However, I hope to
demonstrate that the system the people created includes a sensible
and compelling mandate for judges to recognize the imperfections in a
jury's fact-finding capacity and, where reasoned judgment tells the
judge the jury may have erred, authorizes-indeed requires-judges
to modify the potential tragedy of the unjust verdict by not blindly
coupling it with a debilitating term of incarceration.
In one sense, this thesis seeks to find philosophical support for
something I suspect has been occurring all along despite the system's
unwillingness to recognize it publicly. As someone who has labored
for over a quarter century in the courtrooms that are the stage for the
pageant of the criminal law, I have long believed that judges regularly
and systematically take into account their own beliefs as to the defendant's guilt or innocence in passing on a sentence. The reader is free
to draw their own empirical sense about whether a human being who
5. Exodus, 18:21-22.
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imposes a sentence on another could not be affected by their sense
that the person they were about to incarcerate might actually not
have committed the deed for which the incarceration is otherwise
6
justified.
Indeed, even the judge for whom mercy is merely an intellectual
abstraction would be lured to this consideration. In the final analysis,
unless conscience has been shelved along with the capacity for mercy,
a sentencer must be haunted by the notion that, at some future day,
the invisible stain of the blood or freedom of a truly innocent man may
be rendered indelible on the hands of the one that passed that sen7
tence in the face of those reasoned doubts.
This article seeks to set forth a thoughtful and comprehensive argument that judges should openly indulge doubts that they have
about the guilt of the defendant as a mitigating factor in sentencing.
The practical reasons for this indulgence are that the system operates
with a demonstrably high error rate of convictions of persons actually
innocent of crime, and that our standard of proof beyond a reasonable
doubt is one that, while logically and intentionally set to err on the
side of acquittal in a doubtful case, is not so precise as to assure us
that the result of a jury verdict may be accepted without question or a
sentencing court's sensitivity to that matter. Allowing a judge to con6. For example, studies published by the PENNSYLVANIA COMMISSION ON SENTENCING indicate that from 1996 through 1999, judges admitted to sentencing either below
Guideline ranges or within the mitigated range on the basis of "weak prosecution evidence." PENNSYLVANIA COMMISSION ON SENTENCING, Annual Reports (1996-1999). To be
sure, this admission comprised less than 1% of the reported departures and could be
accounted for on the basis that plea bargains were accepted where the chance of acquittal was significant although the Court itself harbored no doubts about the offender's
guilt. Still, one wonders whether any part of these cases do recognize an acknowledgement of the influence of these doubts, something human nature indicates a court would
do quietly so as not to seem usurpatious of the jury's prerogative.
7. Sir William Blackstone, writing in his famous COMMENTARIES ON THE LAWS OF
ENGLAND noted that while the English code of common law was an example of refined
wisdom in many respects, it was,
[Miore difficult to justify the frequency of capital punishment to be found
therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures. It is a melancholy
truth, that among the variety of actions which man are daily liable to commit,
no less than a hundred and sixty have been declared by act of parliament to be
felonies without benefit of clergy; or, in words, to be worthy of instant death.
4 WILLIAM BLACKSTONE, COMMENTARIES, ch. 1, § 18-19. Blackstone noted in the same
passage that this "dreadful" list of offenses force the system at many levels to find ways
to avoid the draconian result of the widespread imposition of the death penalty. Injured
parties would "often forbear to prosecute" but, even if they did, "juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence." Id. At another passage of his work, Blackstone refers to this as
"pious perjury." 4 WILLIAM BLACKSTONE, COMMENTARIES, ch. 17, § 237. But even if the
juries withheld the hand of mitigation judges could "through compassion .... [R]espite
one half of the convicts, and recommend them to royal mercy." 4 WILLIAM BLACKSTONE,
COMMENTARIES, ch. 2, § 19.
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JUDICIAL NULLIFICATION
sider the residual doubts they may have regarding the defendant's
guilt is consistent with the overall structure of a limited government
that elevates individual liberty to the highest social plateau and rightfully demands that multiple levels of reasoned scrutiny exist to insure
that the deprivation of an individual's liberty by the collective of society is done only with a heightened sense of certainty.
I hope to show that it is a fundamentally sound extension of the
legal theory underlying the roles of the court and jury to posit that
while the jury's verdict is the necessary first step in the sentencing
process (and is a step that sets its parameters), it is a step that authorizes but does not dictate a precise level of incarceration otherwise to
be meted out. The people have entrusted the judiciary with a sentencing role that invites consideration of all relevant aspects, one of which
must certainly be that the individual being sentenced has properly
earned that status by conduct prescribed by the legislature.
The new perspective judges must give to their roles should permit
them to see that the traditional goals of sentencing embrace the notion
that a judge may consider residual doubts about a defendant's guilt in
passing a sentence regardless of which of those goals (or any combination thereof) the particular sentencing scheme implements. Indeed,
residual doubts are a legitimate and compelling sentencing consideration for a jury passing on the question of life or death and to deny its
legitimacy for a judge passing a sentence in non-capital case is both
illogical and contrary to human nature.
I will try to demonstrate that allowing a court to consider its own
doubts about the defendant's guilt breaks no new ground. Courts
have always had the authority to nullify a jury verdict in its entirety
by finding that the evidence was insufficient as a matter of law or that
the verdict was against the weight of the evidence. If such extensive
authority in a court is to be recognized, certainly the lesser nullification of the product of the jury's deliberation can be entertained when a
judge, though not convinced that the verdict of guilty should be overturned or considered anew, nonetheless accounts for doubts about the
defendant's guilt by passing a sentence that will not extract the ultimate punishment where the passage of time may determine that none
was deserved.
The search for this authority is, at last, a device to explore the
delicate issues surrounding the Court's role and that of the jury. We
may have once thought that to be familiar ground. Apprendi and
Blakely have told us otherwise. These cases have not, however,
stripped the Court of this vital power; instead, by giving more precise
definition to the power of the jury, they have set this important authority in vivid relief.
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The ambitious nature of this undertaking begins on a reflective
note. Precedent, to the very limited degree it speaks to this precise
issue, generally does not support this position. I will suggest that the
analysis of the issues be re-visited, however, particularly in light of
the new understanding of the roles of the Court and jury which the
profound insights and study of Apprendi and Blakely demand.
A.
How
THE WHOLE MATTER CAME TO MIND: THE HAUNTING
PRESENCE OF UNITED STATES V. HAUT
Shakespeare must have had criminal defense attorneys in mind
when he had Marc Anthony observe, in his eulogy of Julius Caesar,
that "the evil that men do lives after them; the good is oft interred
with their bones."8 The ultimate victory by a criminal defense attorney is an acquittal, a joyous event for the client but a circumstance
carrying no precedential value to later generations of litigators or clients. The rare appellate win will spread that "joy" a bit more, but an
appellate loss sometimes redounds through time, becoming a dark
spirit conjured up to thwart pleas by others similarly situated and,
perhaps, better represented.
In 1997, the United States Court of Appeals for the Third Circuit
decided United States v. Haut.9 The case is one with which this author was intimately familiar, not because he represented either appellee, but because he represented a co-defendant whose sentence was
not appealed by the government in this case. 10 Nonetheless, the author recalls having extended discussions with counsel for the unsuccessful appellees in the case and has adopted the case as one
representing a vicarious defeat.
Haut was an appeal by the United States of a departure granted
under the Federal Sentencing Guidelines by then United States District Court Judge Donald Ziegler. Haut involved the arson/mail fraud
prosecution of four members of the same family, two of whom, the
younger brothers Paul and Steven Haut, were the subject of the government's appeal." The District Court found that the sentencing
level of each defendant would have put them at a range of 33 to 41
months incarceration but adjusted that sentencing range downward
on two independent bases.
8. WILLIAM SHAKESPEARE, JULIUS CAESAR, Act 3, sc. 2.
9. 107 F.3d 213 (3d Cir. 1997).
10. The author represented Henry Henson, the person identified by the Circuit as
the as "foremost offender in the group." United States v. Haut, 107 F.3d 213, 215
(1997).
11. Haut, 107 F.3d at 214-15.
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JUDICIAL NULLIFICATION
First, the court found that each man was a "minimal participant"
and lowered his offense category by four points. The second and more
intriguing grounds of departure, however, was the court's determination that the evidence against these two defendants was presented by
witnesses whose credibility was so suspect that the court believed it
was justified in reducing the defendant's offense level to account for
the court's residual doubts about their guilt. 1 2 The government appealed both determinations.
While the government lost the minimal participant argument on
13
the basis that the court had not abused its discretion in that finding,
the government prevailed in striking down the departure based upon
the court's doubt about the guilt of the defendants. The Third Circuit
held that such a departure was "unsupportable and without precedent," and that the "capricious departures" the sentencing court made
"to mitigate the impact of the jury verdict" was an action "at odds with
both the intent of the Guidelines and division of responsibilities that
14
underpins our jury system."
Taking those points in turn, the court found that under the seminal opinion of Koon v. United States,15 factors justifying a departure
fall into one of three categories, with that categorization determining
whether or not the factor could be used by a trial court to lower the
sentence. The Haut Court read Koon to specify these categories as
ones encouraged by the Guidelines, factors legitimate but discouraged
in most circumstances, and those forbidden from use as a means of
16
departure.
While the Haut Court acknowledged that the forbidden factors
are essentially those that are listed specifically in the body of the
Guidelines themselves, the court nonetheless found that residual
doubt about guilt was "categorically inappropriate for use as grounds
of departure."' 7 The court based its assertion on the fact that "necessarily embedded in the heartland of every Guideline is the assumption
that the individual sentenced under it have been found guilty beyond
a reasonable doubt." 1s The court made no specific reference to any
passage in the Guidelines or the Koon opinion, to support the categorical exclusion of this factor.
Turning to the broader issues of whether consideration of a
court's residual doubts about guilt would be a process "at odds with
12.
13.
14.
15.
16.
17.
18.
Id.
Id. at 218.
Id.
518 U.S. 81 (1996).
Haut, 107 F.3d at 219.
Id.
Id.
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the division of responsibilities that underpins the jury system," the
court noted that the Federal Rules of of Criminal Procedure "do not
contain a corresponding rule [to Rule 52(a) FederalRules of Civil Procedure] for cases tried by a jury." 19 The Court noted that it has long
been the rule that credibility issues are a matter for the trier of fact to
determine and that a district court may not substitute its judgment
for the credibility of trial witnesses. By deciding to depart on the basis
of the district court's doubts as to the credibility of the government's
witnesses, the district court sought "to drain the verdict of its proper
force," and, the Third Circuit feared, such an assertion of discretion
would operate "to sap the integrity of both the Guidelines and the jury
20
system."
While acknowledging that the district court is permitted to enter
judgment of acquittal when the evidence in the case is insufficient as a
matter of law under FederalRule of CriminalProcedure 29, the Third
Circuit noted that the district court had concluded that such a judgment would be inappropriate in the present case. 21 The Third Circuit
rejected the appellee's argument that there was a "small space" in
which the nullification of the verdict as a matter of law was not justified but, because of the poor quality of the government's evidence, full
reliance upon it for sentencing purposes was not justified; the Court
found that argument to be "creative" but without precedential support. 22 Accordingly, the downward departure was reversed and the
matter sent back for re-sentencing.
Haut was written in pre-Apprendi days when little critical discussion of the principles underlying the jury trial right was ongoing.
19. Id. at 220. Rule 52(a) of the FEDERAL RULES OF CIVIL PROCEDURE pertains to a
judge's findings of fact where the case is tried without ajury. The Rule reads as follows:
In all actions tried upon the facts without a jury or with an advisory jury, the
court shall find the facts specifically and state separately its conclusions of law
thereon, and judgment shall be entered pursuant to Rule 58; and in granting or
refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action.
Requests for findings are not necessary for purposes of review. Findings of
fact, whether based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses. The findings of a
master, to the extent that the court adopts them, shall be considered as the
findings of the court. It will be sufficient if the findings of fact and conclusions
of law are stated orally and recorded in open court following the close of the
evidence or appear in an opinion or memorandum of decision filed by the court.
Findings of fact and conclusions of law are unnecessary on decisions of motions
under Rule 12 or 56 or any other motion except as provided in subdivision (c) of
this rule.
Fed. R. Civ. P. 52(a).
20. Haut, 107 F.3d at 222-23.
21. Id. at 222.
22. Id. at 222-23.
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Haut certainly did not try to be an exegesis on the subject. Still, there
were some matters noticeably absent from the opinion that will figure
into our discussion prominently at a later point.
The first and most glaring omission to the discussion of the interplay between a trial court and the jury is Haut's lack of reference to
Rule 33 of the FederalRules of Criminal Procedure. That Rule explicitly permits a trial court to overturn a jury verdict and grant a new
trial where the verdict is contrary to the weight of the evidence. As I
will discuss at a later point,2 3 the determination that a verdict is
against the weight of evidence has always been, and still is in every
jurisdiction in which it appears, one that gives a Court explicit power
to make credibility judgments about government witnesses in conjunction with a finding that the verdict so shocks the conscience that it
should not be allowed to stand as the final judgment of a reasonable
fact finder.
Moreover, Haut contains little discussion about the intricate relationship between a jury verdict and the sentencing process. To be
sure, any sentencing system necessarily awaits the finding of guilt beyond a reasonable doubt as its activating event. However, to say that
a sentencing system has been activated because that finding has been
made does not necessarily and absolutely foreclose a Court (or any
sentencing entity) from continuing to weigh and consider the facts of
the case in affixing a just sentence. Haut, itself, cites to no authority
for its assertions to the contrary.
Haut also does not recognize the separate natures of the sentencing and conviction processes. Even in death penalty cases where the
same jury may sit to determine both guilt and penalty, they do so in
separate proceedings, with a separate set of instructions and separate
considerations governing each phase. 24 Finding that a defendant is
guilty of murder in the first degree (even a finding of aggravating circumstances), does not dictate an automatic death sentence; it simply
authorizes the consideration of the next phase of the case. Similarly,
in a non-capital case, a jury finding that an offense has been proven
beyond a reasonable doubt invites the sentencing decision; it does not
determine its outcome in a way that precludes the necessary discretion which is a constituent part of the judge as the sentencing entity.
Haut simply did not reach ambitiously into these areas. Neither
did it see the matter before it as the time or place to delve more deeply
into the intricacies of the process or test to see if its suppositions about
23. See infra notes 117-154 and accompanying text.
24. See, for example, the Pennsylvania process reflected in 42 PA. CONS. STAT.
§§ 9711-9720 (West 1998).
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the roles of courts and juries were, in fact, supportable. No court us25
ing Haut as precedent has done that either.
Haut has also been limited in various respects. For instance, in
United States v. D'Amrio,26 the Third Circuit held that a departure
based upon doubts about the truthfulness of government witnesses
would be categorically inappropriate. Interestingly, however, the
Third Circuit separately held that the lower court erred in departing
on the basis "that the evidence in this case was exceptionally weak,"
not for categorical reasons, but because the sentencing court abused
its discretion in erroneously finding the evidence weak. The D'Amrio
court read Haut to render categorically inappropriate a departure on
the basis of lack of witness credibility-but to allow one on the basis
that the government's evidence was weak as long as a district court
27
did not improperly assess the record in such a finding.
A more direct narrowing of Haut occurred in United States v. Nolan-Cooper.28 There, the Third Circuit acknowledged that the Haut
opinion was at odds with "the plain language of Koon" insofar as Haut
suggested that courts could find categorical departures where they
29
were not specifically listed by the Guideline authors themselves.
Still, Nolan-Cooperreaffirmed Haut, but called it a case "limited to its
facts" because it was based upon "a basic principle of our legal system"
that would render such a "departure factor to be an abuse of discretion
under any circumstances." 30
One final and interesting reference to Haut appears in United
States v. Freeman.3 1 The issue in Freeman was whether a defendant
qualified for the so-called safety valve provision of Title 18 U.S.C.
§ 3553(f). This provision allows for a first time offender to avoid the
mandatory minimum drug penalty if he can show, among other
things, that he has made a truthful recitation of his involvement in
the case. Freeman denied that he knew that drugs were in the pack25. See United States v. Meacham, 115 F.3d 1488, 1498 (10th Cir. 1999); United
States v. Corrado, 2000 U.S. App. LEXIS 23, 298 (6th Cir. 2000). Haut has not been
cited at all in a number of Circuits, including the Eighth.
26. 350 F.3d 348 (3d Cir. 2003).
27. Indeed, in United States v. Merlino, 349 F.3d 144 (3d Cir. 2003), the Court
cited Haut for the proposition that a District Court is not bound by testimony simply
because it came from a witness that the jury had to accept in order to support the verdict. The Merlino Court held that a District Court has to make independent findings
based upon reliable evidence to justify whatever ultimate outcomes it reaches with regards to the sentencing decision. Id.
28. 155 F.3d 221 (3d Cir. 1998).
29. United States v. Nolan-Cooper, 155 F.3d 221, 243 n.12 (3d Cir. 1998).
30. Nolan-Cooper, 155 F.3d at 243 n.12. See also, United States v. Sutton, 973
F.Supp 488, 492, n.4 (D. N.J. 1987), affd, 156 F.3d 1236 (3d Cir. 1998) (noting the tension between the Koon and Haut understanding as to the limits of categorically inappropriate departure factors).
31. 139 F.Supp. 2d 1364 (S. D. Fla. 2001).
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555
age he had when arrested. 3 2 Evidently, the jury did not believe FreeStates District Court Judge
man since he stood before United
33
Adalberto Jordan for sentencing.
Despite the verdict, Judge Jordan held that he was able to make
independent findings on the issue of knowledge in determining
whether Freeman qualified for the safety valve. 34 The Court read
Haut as an opinion predicated on a sentence departure rather than a
Section 3553(f) determination, and dismissed it as not controlling. 35
But a principle so basic to our system, as Haut claimed it reflected,
should hardly be dismissed simply because a different statute is being
applied. Judge Jordan did not accept that a verdict foreclosed his view
of facts necessary for sentencing. He quoted Ambrose Bierce's description of a jury as "a number of persons appointed by a Court to assist
36
the attorneys in preventing the law from denigrating into justice,"
and Justice Frankfurter's observation in Winters v. New York, 3 7 that,
"our penal codes are loaded with prohibitions of conduct depending on
ascertainment through fallible judges and juries of a man's intent or
motive-on ascertainment, that is, from without of a man's inner
thoughts, feelings and purposes. Of course a man runs the risk of having a jury of his peers misjudge him."38 For Judge Jordan, sentencing
is guided by the jury finding, not dictated by it. 39 Justice requires
more.
None of the opinions subsequent to Haut delved any deeper than
Haut itself into the assertion that a judge's consideration of residual
doubts about the defendant's guilt offends some fundamental "law of
nature" of the system. I suggest that the Haut proposition is both
wrong and unsupported by history.
We must appreciate what it means if Haut is right. To read Haut
strictly is to believe that a court must turn a blind eye to its doubts
about the defendant's guilt and accept everything constituent to the
jury verdict. To embrace that view, we must, of necessity, have a pure
and justifiable faith in the absolute correctness of that verdict. If we
embrace that view without that faith, we would intentionally disregard the possibility that, sometimes, an individual will be incarcerated for a crime they did not commit. Unless we accept that article of
faith, we would knowingly, albeit randomly, send some innocent peo32. United States v. Freeman, 139 F.Supp. 1364, 1366 (S.D. Fla. 2001).
33. Freeman, 139 F.Supp. at 1368-69.
34. Id. at 1369.
35. Id. at 1372.
36. Id. at 1374 n.4.
37. 333 U.S. 507 (1948).
38. Winters v. New York, 333 U.S. 507, 534-35 (1948).
39. Freeman was affirmed by the l1th Circuit; see United States v. Freeman, 37
Fed.Appx. 505 (11th Cir. 2002).
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ple to jail or to death, an act abhorrent to a notion of a limited government, and an act placing presumably moral people as judges in the
position of recklessly engaging in the immoral act of wrongful condemnation. Without that faith, the ghosts haunting our system would be
horrible indeed.
Such a pure faith is not justified. Fortunately, it is also not required by the true principles that underpin our system. An exploration of that lack of justification and those principles is in order.
B.
EXORCISING THE GHOST: THE NEED FOR A PRACTICAL FAITH IN
THE JURY VERDICT AND A RENEWED FAITH IN JUDICIAL
DISCRETION
Both empirical evidence (as discussed in part B.1. below) and a
critical understanding of the meaning of guilt beyond a reasonable
doubt (as discussed in part B.2. below) require that we take a more
realistic view of the system's capacity to "get it right." That view
should lead us to appreciate that allowing a judge to weigh his or her
doubts about the propriety of the jury verdict does violence to neither
the effort to seek as high a quality of justice as fallible human beings
can hope to achieve nor the Constitutional system in place to help
them achieve it. The theories that form that Constitutional system
are discussed in part C.
1.
The Empirical Evidence: A System FallingMarkedly Short of the
Mark
Any judge who believes that jury verdicts correctly and invariably
reflect the truth of the underlying charge to such a degree that doubts
he or she has about that verdict are merely the product of human sympathy has not studied the available evidence.
Our system fails to acquit innocent people at a surprisingly high
rate. The Innocence Project website, founded in 1992 by Barry Sheck
and Peter Neufeld of the Cardozo School of Law, has identified at least
143 cases since the late 1970's of persons condemned to death who
were subsequently exonerated by DNA testing. 40 In 1996, the Department of Justice collected FBI data establishing that, during a 7-year
period beginning in 1989, in approximately 10,000 sexual assault
cases, the person who was arrested for the crime was ruled out 25
percent of the time by DNA testing.4 1 These represent persons who
40. See http://www.innocenceproject.org. See also, Convicted by Juries,Exonerated
by Science: Case Studies and the Use of DNA Evidence to Establish Innocence after
Trial, NATIONAL INSTITUTE OF JUSTICE (1996).
41. Id.
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were actually innocent but who were arrested on probable cause or, in
some cases, were convicted beyond a reasonable doubt.
While it is impossible to actually fix the number of innocent persons who have been improperly convicted, various estimates of this
total range from 0.5 percent to 8 percent, while the general public estimates the number to be closer to 13 percent. 42 In a 2003 publication,
Professor Ronald Huff noted that in a study of almost 18,000 criminal
cases where biological evidence was available, a 25 percent error rate
was provable. 4 3 Given the relative infrequency of the availability of
DNA to actually exonerate a defendant, it is not surprising that capital cases and DNA exonerations would represent only a small part of
the cases within the entire system. It simply defies the sensible process of inference to assume that a considerable number of wrongful
convictions have not occurred in circumstances in which the DNA
44
matching is simply not available.
Most studies agree that the single most critical factor leading to
wrongful convictions is the misidentification of an individual by an
eyewitness.4 5 Prosecutorial misconduct, line-up procedures that are
impermissibly suggestive, ineffective assistance of trial counsel, the
use of false or coerced confessions, the reliance upon unreliable jailhouse informants and other factors have been identified as issues that
the jury system is simply incapable of filtering out to such a significant degree that we may label the conviction of an innocent person as
a completely grotesque aberration.4 6 Regardless of the reason, history
has shown that our system is as fallible as it is noble in intent. While
celebrating the nobility of our intent, we must act upon the proof of
our fallibility.
While the statistics and troubling incidents of wrongful convictions should not be enough to make us abandon entirely our faith in
the jury system, the numbers simply confirm that a system so reliant
on the human element is bound to be as imperfect as the element upon
which it relies. Without doing violence to the structural integrity of
the jury verdict, and by respecting its meaning within the system, a
sentencing judge may also appreciate that juries have been wrong and
that, when it passes to the judge to impose a sentence, the verdict does
42. H. Patrick Furman, Wrongful Convictions and the Accuracy of the Criminal
Justice System, 32 COLoRADo LAWYER, 11, 11-12 (2003) (citing numerous studies).
43. See Ronald Huff, Wrongful Conviction: Causes and Public Policy Issues, 18
CRIMINAL JUSTICE 15 (2003).
44. See Hugo A. Bedau, Causes and Consequences of Wrongful Convictions, 86
JUDICATUR 115 (2002).
45. Id. See also Furman, supra note 42, at 189; Huff, supra note 43, at 191.
46. Keith Findley, Learning from our Mistakes: A CriminalJustice Commission to
Study Wrongful Convictions, 38 CAL. W. L. REV. 333 (2002). See also Bedau, supra note
44, at 117-18; Furman, supra note 42 at 15-23; Huff, supra note 43 at 15-19.
CREIGHTON LAW REVIEW
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not preclude the judge from questioning whether his actions in imposing incarceration are simply extending a wrong that has been done.
In adopting such a posture, a judge should take comfort: the standard
of proof beyond a reasonable doubt was not designed to be a device
perfectly capable of filtering out the wrongful conviction, and it would
be disingenuous to believe it to be so for any purpose.
2.
The Reasonable Doubt Standard and its Reasoned Limits:
Realistic Expectations for a Standard of Human
Certainty
The blind faith Haut requires in a verdict represents a view about
"guilt beyond a reasonable doubt" that does not withstand scrutiny.
That standard is one Haut incants as if it were mystical words magically producing truth, a truth beyond normal human capacity for determination, a truth blessing the imposition of punishments up to and
including death without moral consequence for the person doing the
imposing.
In reality, while the standard of proof beyond a reasonable doubt
is justifiably incanted and formulated to convey to the jury the serious
degree of certitude it must have before it pronounces an individual
guilty, it hardly justifies a moral entity such as a judge in abdicating
any further need for inquiry as to the certainty of the accused's guilt.
Rather, like all human standards in a human system, reasonable
doubt is imperfect, somewhat arbitrary and fluid to the point of being
remarkably imprecise in its case to case application. For a judge to
use it to justify ignoring good faith qualms about the guilt of the defendant at the moment of sentencing does, indeed, require blind faith.
Let us consider its nature and origins.
The United States Supreme Court has repeatedly held that a person cannot be convicted of a crime unless the jury is convinced to the
standard of proof beyond a reasonable doubt. 4 7 The Court has apparently decided, however, that other than once telling us how not to define the standard, 48 it would make no effort to give greater substance
to it other than to require that each juror be admonished that to convict, they must "reach a subjective state of near certitude of guilt of
49
the accused."
47. In re Winship, 397 U.S. 358 (1970); Victor v. Nebraska, 511 U.S. 1 (1994).
48. Cage v. Louisiana, 489 U.S. 39 (1990).
49. Jackson v. Virginia, 443 U.S. 307, 315 (1979). The Court is not to be chastised
for this reticence. Imagine the difficulties that a trial court would have in instructing a
jury as to how it should go about finding whether the temperature in the jury room
reached 78 degrees. If they were unaided by an accurate thermometer, the jury would
simply have to go on its feeling as to whether the temperature rose to a particular point.
But, unlike in circumstances of temperature where a Court could judge the accuracy of
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Functionally, the standard of proof beyond a reasonable doubt is
meant as a natural extension of that concept which is inextricably intertwined with it, the presumption of innocence. 50 The Supreme
Court in In re Winship 5 ' discussed this philosophical joinder of concepts as a device to a hoped-for practical outcome of reduced erroneous
convictions:
The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument
for reducing the risk of convictions resting on factual error.
The standard provides concrete substance for the presumption of innocence-that bedrock "axiomatic and elementary"
principle whose "enforcement lies 52at the foundation of the administration of our criminal law.
Professor Sundby agrees, writing that adopting the standard of proof
beyond a reasonable doubt amounts to a societal judgment as to the
degree to which we weigh the injustice of letting a factually guilty person go free versus the injustice of convicting persons who are actually
innocent; recognizing that whatever system we create is bound to err,
the only question is how much error and of what type we are willing to
53
accept.
Nevertheless, surely, there will be error. Even when functioning
at a level meant to vastly reduce wrongful convictions, the standard
does not purport to allow our system to require a judge to disregard
the jury's determination by reference to the tools of science, a jury's determination that
the government's evidence has removed all reasonable doubt from the case is not one
readily susceptible of accurate determination. Indeed, one Court summed up the problem in this way:
Reasonable doubt is not an easy concept to understand, and it is all the more
difficult to explain. Moreover, given the concerns about crime that are so prevalent in today's society, common sense suggests that it is particularly difficult
for any lay jurors to understand that they must acquit a criminal defendant if
the prosecution does not establish guilt beyond a reasonable doubt, even if they
feel that the defendant is probably guilty. Jurors may well be reluctant to free
someone accused of a serious and violent crime "merely" because the government didn't prove beyond a reasonable doubt what they feel "intheir hearts" is
probably true. Yet, due process is satisfied by nothing less than a juror's understanding that he or she may not vote to convict a defendant based upon a
belief "that the defendant is probably guilty."
United States v. Hernandez, 176 F.3d 719, 728 (3d Cir. 1999) (citing Sullivan v. Louisiana, 508 U.S. 275, 278 (1993) (emphasis added)). It is perhaps ironic that this insight
into the difficulties of conveying and having assurance in the beyond reasonable doubt
standard was issued by the same Court of Appeals that gave us Haut.
50. Steve Sheppard, The Metamorphoses of Reasonable Doubt: How Changes in the
Burden of Proof have Weakened the Presumption of Innocence, 78 NOTRE DAME L. REV.
1165, 1238, (2003).
51. 397 U.S. 358 (1970).
52. In re Winship, 397 U.S. at 375 (citing Coffin v. United States, 156 U.S. 432, 453
(1895)).
53. Scott Sundby, The Reasonable Doubt Rule and Meaning of Innocence, 40 HAsTINGS
L. J. 457, 460-61 (1989).
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the likelihood of an error in a given case. Such a requirement would
give a false patina to a standard that is seeking only to manage error,
not eliminate it.
Moreover, as the formulation of this standard has evolved
through history, it has been more accepting of a higher jury conviction
rate; a policy judgment society certainly has the right to make, but one
that exacerbates the dilemma for the judge who must impose sentence
in the cases where honest doubts linger.
Professor Sheppard has traced the history of the reasonable doubt
standard to periods in the 17th and 18th centuries and marks its genesis in the three categories of knowledge philosophers of the Enlightenment period identified.5 4 The categories of knowledge were
physical knowledge, that which a person could learn from the input of
their present senses; mathematical knowledge, facts subject to the rigorous proofs of the hard sciences; and, finally, moral knowledge, that
which could be derived from the testimony of others and other secondhand reports about events that have taken place at some point in the
past. This third kind of knowledge was susceptible of moral certainty,
facts known to the degree that "no one without a prejudice would dissent from it," something on a relative plane with the other two forms
55
of knowledge.
But while reasonable doubt may owe its origin to the concepts of
moral certainty discussed in Enlightenment philosophy, its evolution
to a jury instruction today has seen it evolve away from conveying
that a conviction can only result where the jury is as convinced of guilt
as they would be about the square of the hypotenuse of a right triangle, as long as they knew the squares of the sides.
As Professor Sheppard observes:
[dlespite its later prominence as a shield against wrongful
conviction, the instruction was not devised to protect more
fully the innocent. Rather it was pursued as a means of more
easily convicting the accused. Towards this end, a fundamental purpose of the instruction was to constrain the juror, to
prevent the juror from acting with excessive independence in
determining innocence. From such dark beginnings, the
manner in which these ends have been pursued has been accelerated in light of cultural and linguistic shifts, marked especially by changes in understanding the nature of the
meaning of "reason." The instruction has moved from a standard incorporating three elements-a form of non-metaphysi54.
Sheppard, supra note 50, at 1171-81. See also, BARBARA SHAPIRO, BEYOND REA-
SONABLE DOUBT AND PROBABLE CAUSE: HISTORICAL PERSPECTIVES ON THE ANGLO AMERICAN LAW OF EVIDENCE (1991).
55. SHAPIRO, supra note 54, at 7-8.
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cal consideration, a form of moral reasoning, and a measure
of sufficiency in the evidence-to being only a standard of sufficiency. As a result of these changes, the legal consequences
of the instruction have changed. Over time, the burden upon
the juror who would have acquit has grown and so the evidence necessary for the state to convict has lessened. This
change in the burden of proof has profound implications for
the prosecutor's burden of persuasion. The new understanding of reasonable doubt can reverse the operation of the pre56
sumption of innocence.
Sheppard and others make the point that the very way in which
we now speak of reasonable doubt reflects the philosophical change in
our understanding of the burden of proof and the practical lessening of
the state's level of persuasion with respect to guilt. Rather than telling jurors that a trial is a process of the state trying to convince them
that their original presumption as to the innocence of the accused is so
wrong that they must confidently reject it in favor of moving to that
point on a continuum of certainty that allows them to announce guilt
with a confidence that would justify their actions in matters of greatest importance in their own lives, many approved instructions now
require jurors who would acquit to articulate the doubt they have
about guilt and justify it as reasonable; this is accomplished, in various jurisdictions (including the Eighth Circuit) by defining reasonable
57
doubt as if it were a tangible object.
56. Sheppard, supra note 50, at 1169.
57. Various formulations of reasonable doubt instructions exist within the federal
system. A compendium of these are listed in O'M.ALLEY, GRENIG & LEE, FEDERAL JURY
PRACTICE AND INSTRUCTIONS, § 12.10 (West 2004), and all materials in this footnote are
drawn from this work.
The authors propose an overall Instruction on the point. I have highlighted the
particular sections which "objectify" the concept of reasonable doubt in this and succeeding sections from each Circuit that has spoken on the issue:
§ 12.10 Presumption Of Innocence, Burden Of Proof, And Reasonable
Doubt
I instruct you that you must presume the defendant[s] __
to be innocent of the crime[s] charged. Thus the defendant, although accused of [a]
crime[s] in the indictment, begins the trial with a "clean slate"-with no evidence against [him] [her]. The indictment, as you already know, is not evidence of any kind. [The defendant is, of course, not on trialfor any act or crime
not contained in the indictment.] The law permits nothing but legal evidence
presented before the jury in court to be considered in support of any charge
against the defendant. The presumption of innocence alone, therefore, is sufficient to acquit the defendant[s] _
.
The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant for the law never imposes
upon a defendant in a criminal case the burden or duty of calling any witnesses
or producing any evidence. The defendant is not even obligated to produce any
evidence by cross-examining the witnesses for the government.
It is not required that the government prove guilt beyond all possible
doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt
based upon reason and common sense-the kind of doubt that would make a
562
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reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not
hesitate to rely and act upon it in the most important of his or her own affairs.
Unless the government proves, beyond a reasonable doubt, that Defendant
has [have] committed each and every element of the offense charged
[s] __
not guilty of the offense.
in the indictment, you must find Defendant[s]
If the jury views the evidence in the case as reasonably permitting either of two
conclusions-one of innocence, the other of guilt-the jury must, of course,
adopt the conclusion of innocence.
The above source collects approved Instructions from the Circuits which have
spoken on the matter of reasonable doubt:
First Circuit:
PRESUMPTION OF INNOCENCE; PROOF BEYOND A REASONABLE
DOUBT
It is a cardinal principle of our system of justice that every person accused
of a crime is presumed to be innocent unless and until his/her guilt is established beyond a reasonable doubt. The presumption is not a mere formality. It
is a matter of the most important substance.
The presumption of innocence alone may be sufficient to raise a reasonable
doubt and to require the acquittal of a defendant. The defendant before you,
_ ], has the benefit of that presumption throughout the trial, and you are
I
not to convict him/her of a particular charge unless you are persuaded of his/
her guilt of that charge beyond a reasonable doubt.
The presumption of innocence until proven guilty means that the burden of
proof is always on the government to satisfy you that [defendant] is guilty of
the crime with which he/she is charged beyond a reasonable doubt. The law
does not require that the government prove guilt beyond all possible doubt;
proof beyond a reasonable doubt is sufficient to convict. This burden never
shifts to [defendant]. It is always the government's burden to prove each of the
elements of the crime[sl charged beyond a reasonable doubt by the evidence
and the reasonable inferences to be drawn from that evidence. [Defendant] has
the right to rely upon the failure or inability of the government to establish
beyond a reasonable doubt any essential element of a crime charged against
him/her.
If, after fair and impartial consideration of all the evidence, you have a
reasonable doubt as to [defendant]'s guilt of a particular crime, it is your duty
to acquit him/her of that crime. On the other hand, if after fair and impartial
consideration of all the evidence, you are satisfied beyond a reasonable doubt of
[defendant]'s guilt of a particular crime, you should vote to convict him/her.
The First Circuit also has approved the following formulation by Judge
Keeton:
As I have said, the burden is upon the Government to prove beyond a reasonable doubt that a defendant is guilty of the charge made against the defendant. It is a strict and heavy burden, but it does not mean that a defendant's
guilt must be proved beyond all possible doubt. It does require that the evidence exclude any reasonable doubt concerning a defendant's guilt.
A reasonable doubt may arise not only from the evidence produced but also
from a lack of evidence. Reasonable doubt exists when, after weighing and considering all the evidence, using reason and common sense, jurors cannot say
that they have a settled conviction of the truth of the charge.
Of course, a defendant is never to be convicted on suspicion or conjecture.
If, for example, you view the evidence in the case as reasonably permitting
either of two conclusions-one that a defendant is guilty as charged, the other
that the defendant is not guilty-you will find the defendant not guilty.
It is not sufficient for the Government to establish a probability, though a
strong one, that a fact charged is more likely to be true than not true. That is
not enough to meet the burden of proof beyond reasonable doubt. On the other
hand, there are very few things in this world that we know with absolute cer-
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563
tainty, and in criminal cases the law does not require proof that overcomes
every possible doubt.
Concluding my instructions on the burden, then, I instruct you that what
the Government must do to meet its heavy burden is to establish the truth of
each part of each offense charged by proof that convinces YOU AND LEAVES YOU
WITH NO REASONABLE DOUBT,
and thus satisfies you that you can, consistently
with your oath as jurors, base your verdict upon it. If you so find as to a particular charge against a defendant, you will return a verdict of guilty on that
charge. If, on the other hand, you think there is a reasonable doubt about
whether the defendant is guilty of a particular offense, you must give the defendant the benefit of the doubt and find the defendant not guilty of that
offense.
United States v. Cleveland, 106 F.3d 1056, 1062-63 (1st Cir. 1997) (emphasis added).
Third Circuit:
The Third Circuit approved the following jury instruction on reasonable doubt:
Reasonable doubt is a term often used, probably well understood, but not
easily defined. Reasonable doubt is what the term implies. The doubt must be
reasonable. It is not a mere possible or imaginary doubt, because as you well
know, everything relating to human affairs, and depending on oral testimony,
is open to some possible or imaginary doubt. The government is not required to
produce evidence that will exclude every possibility of a defendant's innocence.
It is only required to prove his guilt beyond a reasonable doubt, not beyond all
possible doubt. The test is one of reasonable doubt. A reasonable doubt is a fair
doubt, based upon reason and common sense-the kind of doubt that would
make a reasonable person hesitate to act. Proof beyond a reasonable doubt
must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it, unhesitatingly, in the most important of your own
affairs.
While bearing in mind that it is rarely possible to prove anything to an
absolute certainty, you must remember, as well, that a defendant must never
be convicted on mere assumption, conjecture or speculation. So if the jury views
the evidence in the case as reasonably permitting either of two conclusions, one
of innocence, the other of guilt, the jury should, of course, adopt the conclusion
of innocence.
Reasonable doubt may arise also from a lack of evidence or proof. If you
find that the government has failed to produce evidence sufficient to satisfy you
of the guilt of the defendant beyond a reasonable doubt, then he is entitled to
an acquittal, or a verdict of "not guilty." But if, after considering all of the evidence and giving the accused the benefit of a reasonable doubt, both as to the
evidence presented or the lack of evidence, you are led to the conclusion that he
is guilty, you should so declare by your verdict.
United States v. Isaac, 134 F.3d 199, 202 (3d Cir. 1998) (emphasis added).
Fifth Circuit:
PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, REASONABLE
DOUBT
The indictment or formal charge against a defendant is not evidence of
guilt. Indeed, the defendant is presumed by the law to be innocent. The law
does not require a defendant to prove his innocence or produce any evidence at
all [and no inference whatever may be drawn from the election of a defendant
not to testify]. The government has the burden of proving the defendant guilty
beyond a reasonable doubt, and if it fails to do so, you must acquit the
defendant.
While the government's burden of proof is a strict or heavy burden, it is not
necessary that the defendant's guilt be proved beyond all possible doubt. It is
only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt.
A "reasonable doubt" is a doubt based upon reason and common sense after
careful and impartial consideration of all the evidence in the case. Proof be-
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Sheppard has put it this way:
Over time, the loss of our understanding of moral certainty
and the increasing acceptance of articulability as a basis for
reasonableness underscored a great shift in thinking about
judgment by a juror. The courts have moved the jurors' goal
from a vote for the state if the state can convince them of a
fact to a vote for the state unless the defense can convince
them of a certain type of doubt. 5 s
Indeed, how many times do those of us who know better speak of
the necessity of a defendant "putting a reasonable doubt" into the
minds of a jury? Making it appear to be a physical object, a thing to be
found in the courtroom to justify an acquittal, inevitably leads a sensiyond a reasonable doubt, therefore, is proof of such a convincing character that
you would be willing to rely and act upon it without hesitation in the most
important of your own affairs.
Seventh Circuit:
PRESUMPTION OF INNOCENCE-BURDEN OF PROOF
The defendant is presumed to be innocent of [each ofil the charge[s]. This
presumption continues during every stage of the trial and your deliberations on
the verdict. It is not overcome unless from all the evidence in the case you are
convinced beyond a reasonable doubt that the defendant is guilty as charged.
The government has the burden of proving the guilt of the defendant beyond a
reasonable doubt.
This burden of proof stays with the government throughout the case. The
defendant is never required to prove his/her innocence or to produce any evidence at all. [n.b.: The 7th Circuit recommends that the term "reasonable
doubt" remain undefined].
Eighth Circuit:
3.11 REASONABLE DOUBT
A reasonabledoubt is a doubt based upon reason and common sense, and
not the mere possibility of innocence. A reasonable doubt is the kind of doubt
that would make a reasonableperson hesitate to act. Proof beyond a reasonable
doubt, therefore, must be proof of such a convincing character that a reasonable
person would not hesitate to rely and act upon it. However, proof beyond a
reasonable doubt does not mean proof beyond all possible doubt.
Ninth Circuit:
3.5 REASONABLE DOUBT-DEFINED
Proof beyond a reasonable doubt is proof that leaves you firmly convinced
that the defendant is guilty. It is not required that the government prove guilt
beyond all possible doubt.
A reasonabledoubt is a doubt based upon reason and common sense and is
not basedpurely on speculation. It may arisefrom a careful and impartialconsideration of all the evidence, or from lack of evidence.
If after a careful and impartial consideration of all the evidence, you are
not convinced beyond a reasonable doubt that the defendant is guilty, it is your
duty to find the defendant not guilty. On the other hand, if after a careful and
impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant
guilty.
See O'MALLEY, GRENIG & LEE, FEDERAL JURY PRACTICE AND INSTRUCTIONS, § 12 (West
2004),
58. Sheppard, supra note 50, at 1239.
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565
ble juror to ask whose obligation it is to bring the thing for the jury to
find. As it is not logical that the state, having sought conviction,
would bring in the means of acquittal, the natural reaction is to shift
the burden to the defense to create a reasonable doubt to avoid conviction, making conviction more likely.
Most probably, the shift in the language of reasonable doubt was
the product of a subtle policy judgment favoring the occurrence of
more convictions. Perhaps the new formulation just sounded better.
Regardless of why, an easing of the reasonable doubt instruction results in a greater opportunity for a fallible human system to convict.
Within that opportunity is contained both the laudable outcome of the
conviction of those who deserve it but also, without question, the increased probability that conviction will be visited on some who do
not.5 9
This is certainly not a call for the abandonment of the reasonable
doubt standard. It is, however, a call to the understanding of its finite
limits in aiding a group of very well meaning people in making a determination that authorizes a criminal sentence. The whole process is
human, fallible, and imprecise. The intonation of "proof beyond a reasonable doubt" is more an exhortation than a legal standard, a call to
the jury to appreciate the seriousness and complexity of their task and
the nature of the critical role they play in interposing themselves as a
committee of the people between the government their consent created
and the member of the citizenry as to whom they sit in judgment.
It was never intended to be, is not, nor should ever be interpreted
to be, a magic gateway insuring a factually correct verdict in all circumstances. Neither is it a mandate for a sentencing judge to disregard legitimate and reasonable qualms about guilt they may entertain
once the jury leaves them with a decision as to how to affix a sentence.
59. Indeed, empirical evidence gathered by studies such as Hirsham Ramadan's
suggests the difficulty in this regard. See Hirsham Ramadan, The Challenge of Explain-
ing Reasonable Doubt, CRIMINAL
LAW BULLETIN
No. 1, 2004, at 15. Ramandan identifies
studies which show that the verdict of mock jurors was "totally dependent" on the various definitions of reasonable doubt they were given. Id. at 5. Other studies demonstrated the considerable gap between judges and jurors regarding the degree of
certainty needed to meet this standard. Evidently, jurors regularly gauged "beyond a
reasonable doubt," as a standard much closer to the preponderance standard than did
members of the bench; members of the bench had a similar of difficulty quantifying the
degree of certainty that proof beyond a reasonable doubt would indicate. Some gauged
it as low as 76 percent while others put it as high 94 percent. Id. at 6. Ramadan concluded that even though the United States Supreme Court has required the states to
clear up jury's confusion about the standard "many innocent defendants have been erroneous convicted because of the lack of a comprehensible definition of beyond a reasonable doubt." Id. at 7.
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[Vol. 38
Considering Residual Doubts in Sentencing: A Comfort Level in
Sound Legal Theory
We have reason to doubt that our system is producing consistently high quality outcomes insofar as guilty verdicts are concerned.
The number of cases of demonstrable failure, our reasoned speculation
as to an error rate where failure cannot be authoritatively demonstrated, and the awful consequences of that failure all tell us that the
doubts we have are neither insubstantial nor so rare that they may be
discarded as tragic anomalies. If there were a way to enhance the system's capacity to do substantive justice, we ought to consider it. But is
it proper to look to allowing judges to openly rely on doubts about guilt
in modifying a sentence? Would the exercise of such a power offend
the basic theories upon which the system operates? The answer is no.
Our legal theory supports this on many levels. The essence of the
philosophy that truly underpins our system does not render the judge
an amoral agent of process. Indeed, in the effort to free the citizenry
of tyranny and create a society in which the "common good" is sought,
the system builds in a moral dimension to sentencing that a judge cannot shun by formalistic adherence to a perceived necessity of deference
to a jury verdict. 60 The goals our system has traditionally set for sentencing are each fundamentally affected when a judge has reasoned
doubts about the guilt of a defendant, and none of those goals may be
61
achieved where a judge disregards those doubts.
Moreover, traditional legal precepts readily support that the
power to openly account for these doubts in sentencing is well within
the judicial function. First, an external examination of the roles of the
court and jury shows how the law has limited the jury's jurisdiction by
reserving critical matters to the court and, conversely, how the law
has permitted judicial oversight of the jury's verdict power. 6 2 Next,
these external limits lead to the internal examination of the roles of
the court and jury in sentencing that the Apprendi/Blakely line of
cases has developed. That examination demonstrates that the form of
judicial power that would openly operate here is not disturbed by
63
these recent pronouncements of the jury's structural authority.
Recognizing the power is an act faithful to all that truly underpins our system. It would not, as Haut feared, "sap the integrity of
....the jury system."64 Indeed, it may restore something in critically
short supply: a faith in our own ability to do justice.
60.
61.
62.
63.
64.
See infra notes
See infra notes
See infra notes
See infra notes
Haut, 107 F.3d
64-105 and accompanying text.
106-153 and accompanying text
154-180 and accompanying text
181-221 and accompanying text
at 222-23.
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JUDICIAL NULLIFICATION
Acting on Residual Doubts as Consonant With the Moral
Dimension of Sentencing
We have previously seen that the standard of proof beyond a reasonable doubt renders the verdict-making process an art and not a
science and that reliance upon it as anything near a perfect truth determiner is, as a matter of law, wishful thinking. This only begins,
however, the dilemma of relying upon it to justify the most invasive
societal intrusion into the rights of an individual that our political system authorizes. Blind faith in the verdict disserves more than just
systemic, balance of power realities; it creates a profound moral quandary for the one doing the sentencing as well. It need not be so.
No system, no matter how well intended, can exist for long if it
systematically calls upon persons to exercise discretion without cognizance of moral issues or with disregard for matters of fundamental
fairness. Judges need to know that the qualms they may hold about
the defendant's guilt need not be dismissed as an excess of misguided
pity. They need to know that ours is a system that philosophically
embraces the notion that the judgment of one group of individuals
does not foreclose the ability of another to exercise discretion guided
by conscience, in aid of the common good.
This segment seeks to support the related hypotheses that there
is a significant moral component to the adjudication/sentencing process and that the political philosophy of the nation supports a judge
addressing that component in an open, thoughtful way, armed with
the necessary quantum of discretion to implement moral choices.
There is a deep moral sense to a jury's verdict. Professor Sheppard has bemoaned the effort to adjust the standard of proof beyond a
reasonable doubt to limit a jury's discretionary judgment on the necessity of a conviction not only because that adjustment undermines the
presumption of innocence but also because of its ethical
reverberations:
[Tihe juror has been given a task that demands only one
power, the discretion to reach an independent judgment. A
limitation on the forms of judgment the juror may apply to
the evidence presented in the trial is a limit on discretion, on
the powers necessary to perform that task. Looking at the
sum of moral notions that might apply in the state's obligations to the juror, there is no question that the limit of juror
independence is an immoral burden placed by state officials
65
on the citizen-juror.
65.
Sheppard, supra note 50, at 1241-42.
CREIGHTON LAW REVIEW
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Besides placing an individual juror in such a moral quandary, an
attempt to limit a juror's discretion renders the jury "the scapegoat for
the law."
66
[T]he juror immunizes the police, judge, and lawyers
from mistakes prior to trial. Judges will not correct mistakes
made by police or the lawyers or other judges unless the jury
would likely have reached another decision if the mistake had
not occurred. And, jurors immunize mistakes made after the
trial. Judges need not much concern themselves that the condemned defendant is innocent, as that was the job for a jury.
An actual error, the 67wrongful conviction of the innocent, is
the fault of the jury.
The difficulty with this analysis is that, properly considered, the
jury verdict really cannot provide the ethical immunity supposed once
the empirical and philosophical limits of reasonable doubt are realized. Judges can blame the jury for injustice only superficially and
only by forgetting that the law has built into the system multiple devices for dealing with an unjust verdict. The moral weight on the sentencer remains.
Professor Clark has also written extensively on the moral dimensions of the jury verdict in a criminal case. 68 He argues that the entire jury process is one performing a compelling moral and social
function:
[T]he critical variable for purposes of this argument is
the extent to which the procedures governing a criminal jury
trial tend to engender in jurors a sense of personal responsibility for the fate of the accused. The meaning I attempt to
ascribe to that variable is courage, or rather a particular
quality of forthrightness and integrity for which courage is as
good a label as any. I suggest that we might admire those
individuals and communities who are willing to stand behind
what they do. We might want to count ourselves among those
who confront, rather than evade responsibility for, the difficult things which we as a society find it necessary to do. In
particular, we might consider it cowardly and base to construct a system through which others responsible for their actions-for that is what we do through the criminal justice
system-any of us ever having to take responsibility for those
assignments of responsibility. 6 9
66. Id.
67. Id.
68. Sherman J. Clark, The Courage of Our Conviction, 97 MICH. L. REV. 2381
(1989).
69. Id. at 2401-02.
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JUDICIAL NULLIFICATION
Courageous conduct within the system involves resolving the
"deep tension" over whether we should ascribe responsibility to defendants without regard to the factors which have led to their actions
or whether we should consider the multitude of environmental and
behavioral aspects which explain their behavior and, perhaps, modify
70
the collective urge to exact a pre-prescribed punishment upon them.
That resolution must be done within the moral confines of an individual who is to implement norms with society's permission and in its
name. Paradoxically, however, our system, at times, labors to try to
relieve individuals who actually make decisions of the moral mandate
they bear by employing standards or procedures that superficially
limit their discretion. 7 ' This disserves both the system and the agent
of society operating in that system:
[P]erhaps we should not allow any executioner to fire a blank.
In a sense, however, the assignment of criminal responsibility
is unique. Unlike allocation decisions, and unlike even the
infliction of pain or death-both of which may be under some
circumstances more troubling than the fixing of blame-the
act of judgment itself presupposes a commitment to the idea
of personal responsibility. It would seem particularly ignoble, not to mention hypocritical, to assign personal responsibility while at the same time denying any personal
responsibility for that assignment. It may be too much to ask
that we confront, and judge ourselves, for every difficult thing
we do, but we should
at least be willing to judge ourselves for
72
our judgments.
Giving discretion necessary to moral judgment to various components of a system does not necessarily elevate one component of that
system over the others in all spheres. Giving judges express authority
to account for their doubts about guilt in the sentencing process does
70. Id.
71. A group of Eighth Circuit judges, joining the dissent of Judge John R. Gibson
in Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985), which was dissaproved of in Teague
v. Lane, 489 U.S. 288 (1989), argued the functional importance of the moral mandate
juries face in a capital sentencing. Advocating the constitutionality of the Arkansas
process of having a single jury consider issues of both guilt and punishment, and arguing that it was a process that actually aided a defendant, the dissenters noted:
[Pilacing the moral responsibility on the same group of jurors to decide both
guilt and punishment is justified by the most significant policy considerations.
When one jury hears both phases of the case, the jurors that comprise it cannot
evade the heavy responsibility placed upon them of whether a convicted person
should receive the death penalty. The court today would seem to require the
replacement of some members of the guilt-phase jury with death-qualified jurors for the purpose of considering the death penalty. This division of responsibility between the two groups, even if only a few are replaced, would dilute
accountability and disadvantage the accused.
Mabry, 758 F.2d at 247 (Gibson, J., dissenting).
72. Clark, supra note 68, at 2408.
570
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not mean they are to usurp the power to adjudicate guilt ab initio from
the jury. Both Professors Sheppard and Clark, respectively quoting
G.K. Chesterton and Plato, agree that the ultimate decision on guilt or
innocence should remain not with a professional class of individuals
but with the collection of ordinary citizens empowered to oversee the
state's effort to incarcerate or execute a defendant. 73 No country proclaiming itself to be organized by a Constitution that speaks of a limited government could accept any other system. But the jury's
authorization of punishment is that and just that; it is not a grant of
moral absolution to governmental officials who, by the laws otherwise
adopted with the people's consent, have been given the discretion to
administer that sentencing system in a way that does substantial justice. That sentencing must await either the consent of one defendant
or the authorization of twelve of his fellow citizens is a critical and
necessary given, but it is not the end point of the moral or legal
discussion.
Jury verdicts do not, in any meaningful way, take judges off the
moral "hook." In many respects, it is the judge who has the last word
on the question of the proper outcome of the proceeding and it is morally wrong for the judge to make the jury the scapegoat of the law by
seeking the sort of immunity that the Haut opinion would allow the
judge to achieve. More affirmatively, the fundamental precepts of our
system mandate that within broad boundaries, the judge assert a
"moral" authority to do substantial justice.
The appreciation of those precepts begins with a matter about
which there is little disagreement: the American concept of government was formed out of, at least in part, the Enlightenment theories
of the 17th century. Those theories affected virtually all phases of
human knowledge: scientific, theological, and political, and owed their
first allegiance to the role of reason and the scientific method in the
74
discernment of truth.
Many scholars believe that the elevation of reason had a hydraulic effect, diminishing in equal measure the role of theology in philosophy and substantially secularizing issues of politics and
government. 75 Professor Sabine wrote that the thinking of the 17th
century released philosophy from its association with theology, resurrected ideas of the classical scholars and converted them into radical
secular notions, and elevated naturalism and rationalism in support
of the "epoch-making" progress occurring in both the physical sciences
73.
See Sheppard, supra note 50, at 1244; Clark, supra note 68, at 2447.
74.
HERBERT A. JOHNSON, HISTORY OF CRIMINAL JUSTICE 15-16 (1988); SHAPIRO,
supra note 54, at 7-9; and Sheppard, supra note 50, at 1183-85.
75. Johnson, supra note 74, at 15; SHAPIRO, supra note 54, at 7-9.
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JUDICIAL NULLIFICATION
and mathematics.7 6 That progress caused thinkers of the day to believe that the world could be explained through deductive reasoning
and the application of logic, methods "in which revelation
or any other
77
supernatural element had no important place."
As the vessel of reason and logic, the individual became the center
point of philosophy. Society needed to be explained in a context relevant to the individual and his capacity to exercise the reason so sacred
to the day.78 It was perhaps for this reason that figures like John
Locke, while demanding empirical justification for so much in the
world, did not apply that need to the notion of the natural rights of
citizens; as Jefferson would come to say, certain rights were "self evi79
dent," at least as self evident as the presence of logic and reasoning.
Government needed to be configured so as to free the individual as
much as possible to live according to reason.
All of this might wrongly lead to the conclusion that the displacement of a theological mandate with human reason as the force behind
political society would strip that society of the moral component theology naturally advances. Locke, for one, advocated nothing of the kind.
Central to Locke's plan to form a government respecting the fundamental axiom of personal liberty was the social contract theory,
something that Jefferson incorporated from him and upon which the
founders relied quite heavily.8 0 While both Thomas Hobbes and William Penn espoused the importance of social contract (based on the
notion of every man's claim to reason or, in the traditional religious
sense, on the notion that Christ preached of the dignity of each individual), it was Locke who would take the consent8 1theory and weave it
into a larger structure of a plan for government.
For Locke, though, the individuals doing the consenting bore their
first allegiance to God. The political society they created was to adopt
precise and limited goals of preserving life, liberty and estate, leaving
to the individual the responsibility and the freedom to pursue his own
82
salvation.
Similarly, Locke's elevation of reason was not merely a justification for a limited government; reason was also an aid to faith, an aid
that eliminated the need for strict adherence to hierarchical authority
that threatened to strip individuals of the freedom they needed to find
76.
GEORGE H. SABINE,
A
HISTORY OF POLITICAL THEORY 415 (1950).
77. Id.
78. Id. at 433.
79. Id. at 529.
80. Andrew R. Murphy, The Uneasy RelationshipBetween Social Contract Theory
and Religious Toleration, 59 J. POL. 368, 368-69 (1997).
81. Id. at 374-79.
82. Id. at 382-83.
CREIGHTON LAW REVIEW
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God in the only meaningful way possible. Faith remained the highest
duty for people and they had to be free to pursue their faith as long as
they employed peaceful means that did not otherwise infringe upon
8 3
the faithful search of others.
Political society was necessary to enforce the possibility of that
faithful search. That search was necessary because of the inherent
imperfections of the people whose consent would create Locke's government. Locke did not foolishly believe that all men were reasonable
in every respect. He elevated reason primarily to oppose the notion
that some individuals were, by divine right, ordained to be in a position to exercise tyrannical authority over their fellows. 84 He knew
that some, however, were more reasonable and rational than others,
and that it was the capability of people for rationality, not the actual
exercise of it, that compelled a state to be based upon the consent of
85
the governed to achieve ultimate political legitimacy.
The consent of the governed, however, only began the process.
The rule of law and the pursuit of the common good were equally critical means to achieve the ends of a well-run government.8 6 Together,
they were the three principles Locke believed were critical to keep the
tyrant at bay.
As Locke viewed the world, however, achieving good laws and the
elusive "common good" were not to come from direct democracy as the
operational plan for government. Locke's understanding of the variance in people's capacity to reason led him to disdain "self rule." He
wanted his legislatures to be far more than just assemblies of people
who had correctly read the mood of their constituents and reported on
it by their vote. 8 7 Rather, Locke hoped for responsible government to
arise out of discussion, debate, decision, and the registry of one's beliefs through the exercise of discretion, subjecting that representative's expression to the ultimate reaffirmation of the governed at the
88
time of the next election.
The critical point of this is that the government Locke envisioned
required that those who exercise power in the name of the governed be
able to exercise it in the full expression of their conscience, judgment,
and, of course, their own exercise of reason. The governed's consent
started the process, but the establishment of the rule of law and,
through it, the pursuit of the common good did not require the judges,
83.
84.
W. POL.
85.
86.
87.
88.
Id.
Frank Marini, John Locke and the Revision of Classical DemocraticTheory, 22
Q. 172-73 (1969).
Id. at 173-74.
Id. at 175-76.
Id. at 181-82.
Id.
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JUDICIAL NULLIFICATION
legislators, or anyone else to blindly carry out some perceived mandate of the mass of individuals in a purely ministerial fashion. Such a
role for those officials would have been an ill-conceived way to rule
well by law and would have demanded they act contrary to the higher
duties they held as moral beings.
Locke would not have questioned the exercise of such reasoned
judgment by a person acting with the consent of the governed and
seeking the common good through the rule of law who accounted for
their doubts about the guilt of an individual they were about to sentence by adjusting the sentencing accordingly. Limited government
did not mean an amoral one. Within the spheres of authority properly
demarcated for government action, such action enjoyed the full and
proper range of human judgment including, of course, the ethical dimension. The other voices that joined the chorus forming American
political thought at our founding were in accord.
An interesting group of writers has argued that the thinking of
the Enlightenment was but one voice in the chorus that changed the
conception of the relation between man and government (and, indeed,
man and God), in a way that profoundly influenced the nature of our
government and the philosophical underpinnings by which we should
view the role of the judiciary when juxtaposed with that of the jury.
Professor Kessler, among others, has written that the Puritans of
New England should be afforded greater credit when it comes to determining the philosophical forces which led to the consent of the governed theory and the overall democratic processes that influenced our
Constitution.8 9 Kessler relies largely on the writings of Tocqueville
who saw strong ideas of individualism and freedom existing long
before the writing of the Constitution and viewed Christianity, (more
particularly, the writings of Martin Luther), as a crucial source for
American political thought. 90
Tocqueville saw Luther as infusing a philosophical method into
religious dogma much in the same way that Francis Bacon and Renee
Descartes used that method to revolutionize philosophy and natural
science. 9 1 He credited the Puritans with turning that method into
89.
Sanford Kessler, Tocqueville's Puritans:Christianityand the American Found-
ing, 54 J.
POL. 776 (1992).
90. Id. at 778-89. The Puritans, according to Tocqueville, were the focus of this
development as they perceived a spirit of freedom pervading the thinking of the New
Testament and justifying strongly democratic ideas in religion and politics. Id. at 78182. He believed that their interpretation of the teachings of Christ made a democratic
movement inevitable and that, while the Catholic Church had adopted a strong religious hierarchy, the revolution of Martin Luther emphasized the democratic ideals inherent in the notion of the broad based dignity of man found in the New Testament. Id. at
782-83.
91. Id. at 783.
CREIGHTON LAW REVIEW
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American political thought, leading to notions of popular sovereignty,
92
democracy and the Constitutional system.
But, by the time Tocqueville wrote in the 1830's, he found that the
liberalization of religious faith was so widespread that the supremacy
of the Bible and clergy had been profoundly dissipated. 9 3 Universal
reason had become the source of moral authority and faith in the Bible
had been replaced by faith in public opinion. 94 Morality was seen as
something functionally good for the individual, not simply a matter
right on its own. 9 5
This secularization, however, did not eliminate the fundamentally
religious base of the Puritan philosophy enjoyed and the profound effects it had on the politics of a more secular age. It is difficult to argue
that the Age of Reason had not also become the Age of Reformation
and Democratic Christianity, meaning that a genetic scan of the
American political system would find it to have as much ethical and
moral consciousness in its make-up as it would the reason-based
96
voices of the Enlightenment.
The legacy of that consciousness was reinforced by the fact that,
in many respects, Locke and Luther hoped for the same things from
the government that would rule the "carnal" world. Both demanded
that those who ruled with the consent of the governed do so with a
mandate to act as full moral beings, as people of reason could do no
less and be faithful to that part of themselves that would make this
world free and salvation in the next possible.
92. Id. at 784. Kessler admits, of course, that the Puritans were hardly an expansive group willing take in everyone within their ranks. See also Joshua Miller, Direct
Democracy and the Puritan Theory of Membership, 53 J. POL. 58, 58-60 (1991). The
Puritans believed in a strong representative democracy, requiring that individuals be
bound by the judgment of their elected leaders as long as that judgment was not repugnant to the law of God; the Puritans restricted membership to their community, causing
their community to have a sense of mission, not simply to protect individuality and
property rights, but to assist the individuals in obtaining personal redemption. Id. at
65-70. American society as a whole could not, of course, adopt this limited view of social
membership or predicate a judgment as to the effectiveness of the society by how well it
saved an individual's soul. We may have been a melting pot, but there were just too
many ingredients to produce a singular recipe for the redemption of all concerned.
93. Kessler, supra note 89, at 786.
94. Id. at 785-86.
95. Id.
96. Joshua Mitchell, Protestant Thought and Republican Spirit: How Luther Enchanted the World, 86 AM. POL. Sci. REV. 688 (1992). Professor Mitchell echoes these
sentiments, arguing that Protestant thought and Republican spirit arose at the same
time and were intertwined. He writes that the Reformation removed "the binding injunction of God from the sphere of worldly activity, and let human kind on its own,
without divine support." Id. Luther enchanted the world differently than did the traditional Church by positing a new faith in an internal spirit that temporal rulers simply
were incapable of judging. Id. at 689. But Luther, Mitchell argues, never rejected the
idea that a temporal authority was necessary to check the unrighteous behavior of
individuals.
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JUDICIAL NULLIFICATION
For Luther, while the carnal world could never hold force over a
spiritual one inhabited by man and his God, and while the spiritual
world could not control the carnal world since such would also lead to
calamity, the worlds deeply affected each other.9 7 The law of Moses
still had its place in a world where not all individuals had learned the
necessity of a striving for a communion with God. The world was a
place for both devout Christians who needed no external law to live in
peace, but also for "the unchristian and wicked," who, like wild beasts,
had to be restrained: "[flor this reason these two kingdoms must be
sharply distinguished, and both be permitted to remain; the one to
produce piety, the other to bring about external peace and prevent evil
deeds; neither is sufficient in the world without the other."98
Luther thus was concerned about how temporal governments
would be ruled. He (like Locke) wanted them ruled by those most able
to do so, with the authorization for such rule coming from reason. Luther replaced the motivating principle of the "common good," with a
mandate that the authorized act in a manner best evidencing the love
of God. 99 To act in that manner, one needed to first seek Christ on
their own as one would a partner in marriage and, from that act of
faith, to carry over in the love for neighbor by protecting the neighbor
from predatory individuals who would otherwise overwhelm them. 0 0
Good government would be one that respected the nobility of the individual, emphasized rational judgments and did not measure itself on
how well it served the narrow interests of a patrician class. It would,
by seeking the "love of neighbor," achieve much of the same things
Locke spoke of in his conception of the "common good." 1° 1
And just as Locke required that those advancing the common
good do so by an exercise of reasoned judgment, the "Christian prince,"
seeking to govern in the love of neighbor, had to follow Luther's advice
that he know the law, and know much more:
[N]o matter how good and equitable the laws are, they all
make exceptions of cases of necessity, in which they cannot be
enforced. Therefore, a prince must have the law in hand as
firmly as the sword, and decide in his own mind when and
where the law must be applied strictly or with moderation, so
that reason may always control all law and be the highest law
0 2
and rule over all laws.'
97.
98.
Id. at 689.
MARTIN LUTHER, Secular Authority: To What Extent Should it be Obeyed?, in
MARTIN LUTHER: SELECTIONS FROM His WRITINGS 370-71 (John Dillenberger ed., Anchor
Press 1962).
99. Mitchell, supra note 96, at 693-94.
100. Id.
101.
LUTHER, supra note 98, at 381.
102.
Id. at 393 (emphasis added).
CREIGHTON LAW REVIEW
[Vol. 38
One could readily view this as a fine mandate for a judge, wielding at least some of the modern day power of a prince.
The traditions that underscore the system all assumed that governmental power, once given by the governed, was not to be exercised
in ways that deprived those who governed of the requirement to seek
the common good (the love of neighbor) or in ways that forced them
into conduct inimical to their higher duty to the call to faith.
But, after all, we are lawyers, not theologians or political philosophers. How would citing to Locke's Second Treatise or the writings of
Luther have saved the Haut brothers from their fateful remand? Perhaps this understanding would have shown that the actions of the
trial court in Haut were not an assertion of power believed to be found
on stone tablets divinely inscribed. It was an exercise faithful to the
theory that power, emanating from the consent of the governed, is
properly administered by the rule of law advanced in the name of the
achievement of substantive justice, otherwise known as the common
good. It was an exercise of that theory in an area replete with moral
dimensions, where the mandate to seek the common good is perhaps
most acute. That mandate, and the resolution of those moral quandaries, may only be achieved by allowing the human entity seeking that
achievement to exercise as fully as possible the basic tools of moral
action: reasoned judgment and insight. Denying those, tools fundamentally conflicts with the bedrock traditions that form the soul of the
Constitution.
But there is still a further philosophical reason inherent in the
nature of our system that argues for judges to exercise this level of
reasoned judgment. Refusing to allow judges to act on their doubts
about the defendant's guilt not only disserves the nature of their individual roles, it undercuts the judiciary's authority to serve its systemic
function as a check on the other branches of government to the end of
personal liberty.
In Federalist PaperNo. 78, Hamilton issued his famous observation that the judiciary is the "least dangerous to the political rights of
the Constitution" principally because it has "neither force nor will but
merely judgment."1 0 3 That judgment, however, is critical. Further in
the same Paper, Hamilton writes that a strong judiciary checks more
than the unconstitutional actions of the other branches:
[B]ut it is not with a view to infractions of the constitution
only that the independence of the judges may be an essential
safeguard against the effects of the occasional ill humours in
the society. These sometimes extend no farther than to the
103.
MICHAEL KAMMEN, THE ORIGIN OF THE AMERICAN
TARY HISTORY
228 (1986).
CONSTITUTION:
A
DOCUMEN-
20051
JUDICIAL NULLIFICATION
577
injury of the private rights of particular classes of citizens, by
unjust and partial laws. Here also the firmest of the judicial
magistracy is of vast importance in mitigating the severity,
and confining the operation of such laws. It not only serves to
moderate the immediate mischiefs of those which may have
been passed, but it operates as a check upon the legislative
body in passing them; who, perceiving that obstacles to the
success of an iniquitous intention are to be expected from the
scruples of the courts, are in a manner compelled by the very
motives of the injustice they mediate, to qualify their attempts .... The benefits of the integrity and moderation of
the judiciary have already been felt in more states than one
... . Considerate men of every description ought to prize
whatever will tend to beget or fortify that temper in the
courts; as no man can be sure that he may not be tomorrow
the victim of a spirit of injustice, by which he may be a gainer
today. And every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and
private confidence, and4 to introduce in its stead, universal
10
distrust and distress.
To the same end, John Adams wrote in his Thoughts on
Government:
[Tihe dignity and stability of government in all its branches,
the morals of the people, and every blessing of society depend
so much upon a upright and skillful administration of justice,
that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it
may be a check upon both, as both should be checks upon
that. The judges, therefore, should be always men of learning
and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should
not be distracted with jarring interests; they should not be
dependent upon any man, or body of men. 10 5
The Framers wanted to let judges be judges. While the matters
were not specifically addressed in these passages, the notion of judges
operating to insure that the "ill humours" do not victimize individuals
is certainly not confined to times when those "ill humours" stem from
the legislature. They may, indeed, come from the executive and/or the
jury box, and, in the right context, for the right and stated reasons,
and without any usurpation of the powers of any branch or the meaningful diminishment of the consent of the governed, the judge should
104. Id. at 232-33.
105. JOHN ADAMs, THE REVOLUTIONARY WRITINGS OF JOHN ADAMS 291-92 (C. Bradley Thompson ed., 2000).
CREIGHTON LAW REVIEW
[Vol. 38
feel free to quell those "humours" knowing that substantial justice is
fully within our constitutional contemplation.
Substantial justice is what all whose philosophical blood still
courses through the veins of our system hoped our system would produce, whether they believed it was only for the good of this world or in
aide of a salvation in one they believed was yet to come. For a judge to
achieve substantial justice in a given case, he or she may need to give
voice to doubts about the guilt of the convicted defendant. If the judge
does so, the judge will not only carry out the moral mandate that underlies the obligation of every government official; the judge will better serve the objective goals the system hopes to achieve.
b.
Acting on Residual Doubts as Consonant With the Traditional
Goals of Sentencing
(i)
The Theoretical Harmony
Any person seeking to implement the traditional goals of sentencing would find it consummately illogical to ignore doubts they had
about a defendant's guilt in assessing how any of those goals could be
achieved in a given case. The goals of criminal punishment are sometimes contradictory, but are always served by our system in a way
meant to achieve as many of them as seemingly possible. Most commentators place the primary goals in four categories: just deserts, de10 6
terrence, incapacitation, and rehabilitation.
Rehabilitation is the goal that seems to fall in and out of favor
most dramatically, having had a dominant period in the 1960's and
70's, but assuming lesser importance in a conservative time period
when it became less politically acceptable to care about the reformation of the offender. 10 7 Deterrence, both in its general and specific
manifestations, is a goal of punishment predicated not entirely on the
notion that the defendant is a "sick" individual who can be cured
through a rehabilitative process, but that he is, at least, a rational
person capable of understanding that punishment of him or to someone similarly situated to him is reason enough not to engage in further
criminal activity. The incapacitation theory abandons the notion of
rehabilitation and converts the deterrence idea into one assuming
that certain individuals are so inherently dangerous that only by
keeping them away from civilized society can they be effectively de106. RONALD J. PESTRIrrO, FOUNDING THE CRIMINAL LAW PUNISHMENT AND POLITICAL THOUGHT IN THE ORIGINS OF AMERICA (2000). See also JACK M. KRESS, PRESCRIPrION
FOR JUSTICE THE THEORY AND PRACTICE OF SENTENCING GUIDELINES 229-32 (1980);
NICHALA N. KIITrRIE ET AL., SANCTIONS, SENTENCING, AND CORRECTIONS: FEDERAL AND
60-61 (2d ed. 2002).
PEsmrro, supra note 106, at 5.
STATE LAw, POLICY, AND PRACTICE
107.
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JUDICIAL NULLIFICATION
terred. 0 8s Finally, the just deserts theory is based upon our notion of
the moral gravity of an offense. It sees the criminal justice system as
if it were a general store, where a measure of punishment is purchased in the currency of the seriousness of an offense. 10 9
These goals are to be implemented through a sentencing process
that takes into account a wide range of information. The American
Law Institute Model Penal Code: Sentencing, declares that the purposes of a system of sentencing is "to render punishment within a
range of severity sufficient but not excessive to reflect the gravity of
the offenses and blame worthiness of offenders," as well as "when possible with realistic prospect of success, to serve goals of offender rehabilitation, general deterrence, incapacitation of dangerous offenders,
and restoration of crime victims and communities, provided these
goals are pursued within the boundaries of sentencing severity" otherwise permitted. All of this is to be carried out through sentences administered in a way "to preserve substantial judicial discretion to
individualize sentences within a framework of law" and "to produce
sentences that are reasonably uniform, certain, and proportionate in
their neutral application of the purposes" otherwise stated. 1 10
The American Bar Association Standards for Criminal Justice
Sentencing calls for the imposition of sentences "appropriate to the offense and the offender," such sentences to be meted out as "a judicial
function to be performed by sentencing Courts." 1 1 ' The traditional
goals of sentencing do indeed "intrinsically differ in their approach towards punishment." 112 But they share one thing: every one of them
would be affected by a judge who honestly questioned whether the
jury verdict was correct.
Where a judge was primarily motivated by the idea that a defendant should get his just deserts for his crime, and where that same
judge entertains honest doubts that the individual had actually committed it, the imposition of those full "desserts" would require the
judge to morally disassociate herself from the act of sentencing. Were
that same judge to be motivated by the notion of incapacitation, the
hand of sentencing would surely hesitate because incapacitation is
rendered largely superfluous if significant doubt exists that the indi108.
109.
106, at
110.
Id.
See id. at 64-85; Kress, supra note 105, at 229-41; KIrRIE ET AL., supra note
56-61, for an extensive discussion on this topic.
MODEL PENAL CODE: SENTENCING § 1.102 (2) (April 2003 Report) (sample black
letter proposal). See also UNITED STATES SENTENCING GUIDELINES MANUAL, ch. 1, pt.
A(2) (1998) (claiming that the Guidelines provide for standards to further the "basic
purposes of criminal punishment: deterrence, incapacitation, just punishment, and
rehabilitation").
111.
ABA STANDARDS FOR CRIMINAL JUSTICE SENTENCING 18-1.4 (3d ed. 1994).
112.
KITTRIE ET AL., supra note 106, at 60.
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vidual has committed the act that should occasion the need to have
them segregated for a substantial time from the rest of society. Similarly, a judge hoping to deter someone from future crime will hesitate,
thinking that a person who may not have committed this crime is inherently unlikely to commit more.
Rehabilitation does not work well when an individual, because he
may not have committed the offense, not only does not need rehabilitation but will probably be deemed a failure of the rehabilitative process because he will, in lieu of being "treated," continue to profess his
innocence. 113 Particularly where the judge is predominantly concerned with notions of general deterrence, a significant ethical quandary is presented. In order to deter others from committing crimes, is
it proper to impose punishment on an individual who may not have
committed an offense? An effort to punish in this mode may strike a
judge as something not dissimilar to an act of random violence against
an individual, simply to instill terror in the community in which it
takes place.
The moral quandary in which we would place judges if we were to
force them not to entertain their honest doubts about the defendant's
guilt when imposing a sentence would be further exacerbated if we
opted for a sentencing system of such rigidity that discretion would be
abolished. This abolition would not ease the moral dilemma for sentencing judges; rather, it would place them in the middle of an Orwellian nightmare in which they were little more than file clerks in a
Ministry of Oppression. Kress quotes former Chief Judge Charles
Breitel of New York State in his article "Controls in Law Enforcement" 114 as describing what a society would be like if an attempt was
made to abolish discretion in the criminal justice system:
[I]f every policeman, every prosecutor, every court, and every
post sentence agency performed his or its responsibility in
strict accordance with rules of law, precisely and narrowly
laid down, the criminal law would be ordered but intolerable.
Living would be a sterile compliance with soul-killing rules
and taboos. By comparison,
a primitive tribal society would
115
seem free, indeed.
A judge who entertains reasoned doubts about the defendant's
guilt should be allowed to voice those concerns openly and honestly
and weigh them in the sentencing process. Those concerns, properly
113. This is akin to the classic catch 22 of an individual who is continually denied
parole because they refuse to accept responsibility for an offense they may well have
never committed in the first place.
114. Charles D. Breitel, Controls in Law Enforcement, 27 U. CHIC. L. REv. 427
(1960).
115. KrEss, supra note 106, at 31.
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considered and subject to appellate review under an abuse of discretion standard, are every bit as relevant as any other that a judge may
consider. To force a judge to do otherwise is to require "pious perjury"
by accounting for these concerns under a different name, or to suppress and disregard them, raising the grim specter of the unnecessary
incarceration of an innocent man. All in all, a judge may feel that the
conviction should stand as punishment enough or that some term less
than the maximum is the balanced resolution. In doing so, the goals
of sentencing are served. 116
116. Even the UNITED STATES SENTENCING GUIDELINES, see supra note 3, would allow these considerations, the teaching of Haut notwithstanding. Neither the language
of the statute that authorized them, nor the Supreme Court opinion that spoke most
comprehensively about them, forecloses the kind of departure Haut precluded under the
Guidelines. Federal law quite explicitly refuses to limit the kind of information concerning the background, character and "conduct" of the person charged. 18 U.S.C.
§ 3661 (2000). A separate section of the statute mandates that the court consider these
factors (including the "circumstances of the offense") in trying to achieve the just desserts, deterrence, incapacitation and rehabilitation goals that the system sets out for
itself. 18 U.S.C. § 3553(a)(1-2) (2000). Guidelines section 1B1.4 allows for a Court to
depart downward in sentencing upon the finding of factors, the limits of which are not
readily defined.
Nothing in these authorizing statutes would render a court's action in accounting
for its doubts about a defendant's guilt ultra vires. In the seminal opinion in Koon v.
United States, 518 U.S. 81 (1996), the Supreme Court gave an interpretive green light
to the legitimacy of such a consideration and a departure based on it. The Court held
that the listing of factors not to be used for departure purposes (race, sex, national origin, creed, religion, socio-economic status, lack of guidance as a youth, addiction and
economic hardship) in § 3553(b) were meant to indicate that other sorts of departures
were permitted. Koon, 518 U.S. at 92-93. The Court explained that outside the "heartland" case, a variety of cases may present departure possibilities. "Faced with this reality, the Congress chose to prohibit consideration of only a few factors, and not otherwise
to limit, as a categorical matter, the considerations that might bear upon the decision to
depart." Id. at 94.
Congress chose this approach for a reason critical to our consideration here. While
the Guidelines sought to impose a structure upon federal sentencing to achieve a degree
of "uniformity, predictability and ... detachment lacking in our earlier system,"
[T]his, too, must be remembered, however. It has been uniform and constant in
the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human
failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. We do not understand it to have been the congressional purpose to withdraw all sentencing discretion from the United States District
Judge. Discretion is reserved within the sentencing guidelines ....
Id. at 113.
Lower Courts have taken Koon at its word, and have proclaimed that, if Congress
wants to tell a trial court to ignore a factor that might affect the sentence, they must use
plain English and the printed word. United States v. Coleman, 188 F.3d 354, 359-60
(6th Cir. 1999); United States v. Mendoza, 121 F.3d 510 (9th Cir. 1997). In that spirit,
courts have looked at the "circumstances of the offense" and the "conduct" of the defendant, and found reasons to depart where the defendant sought departures on the basis
of the fact that various aspects of the case provided him/her a defense but one that
failed to win an outright acquittal. United States v. Whitetail, 956 F.2d 857, 863 (8th
Cir. 1992) (battered spouse defense); United States v. Cheape, 889 F.2d 477 (2d Cir.
1989), United States v. Dickey, 924 F.2d 836 (9th Cir. 1991) (entrapment); United
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(ii) A Practical Illustration
In addition to the theoretical argument that considering residual
doubts is perfectly consistent with the ends of sentencing, we may add
one practical illustration. For years, a sentencing entity has integrated this factor into its calculation without destroying that which
"underpins" the system. The entity in this context is the jury and the
context is the potential imposition of the death penalty. How the law
treats the issue of a jury's consideration of residual doubt is one thing
(indeed, one confused thing) but how juries treat it is reasonably clear.
Various studies have concluded that residual doubt about guilt is the
single most persuasive aspect of a case leading to the imposition of a
life sentence. Professor Garvey's study in 1998117 plainly found that
residual doubt was "the most powerful 'mitigating' fact" in a death
case; indeed, he advised that "the best thing a capital defendant can
do to improve his chances of receiving a life sentence has nothing to do
with mitigating evidence strictly speaking. The best thing he can do,
1 18
all else being equal, is to raise doubt about his guilt."
While his study found that some people would not be moved by
residual doubts, the overwhelming majority (over 77%) would be less
likely at least to some degree to vote death if they entertained such
120
doubts. 119 Other studies agree.
States v. Alba, 933 F.2d 1117 (2d Cir. 1991) (overall limited involvement); United States
v. Mendoza, 121 F.3d 510 (9th Cir. 1997) (defendant's lack of knowledge of or control
over purity of drugs he carried). Given this, it hardly seems that sensitivity to the real
possibility of innocence should be deemed a prohibited consideration in sentencing. It
is, in the first instance, a fundamental aspect of the defendant's "conduct" and one that
bears mightily on all proper sentencing components. Haut has been seen as inconsistent with Koon, see § B, supra,and rightly so. Congress did not tell courts not to judge,
or judges not to be people with a desire to feel they left a situation justly resolved.
117. Steven P. Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 COLUM. L. REV. 1538 (1998).
118. Id. at 1563.
119. Id.
120. See Jennifer R. Treadway, Note, 'Residual Doubt' in Capital Sentencing: No
Doubt It Is An AppropriateMitigating Factor,43 CASE W. REs. L. REV. 215, 231-235
(1992). An exhaustive study of death penalty juries in a number of states revealed that,
contrary to the Court's instructions to the contrary, the decision on life or death is quite
often made by jurors in the guilt phase of the trial. See also William Bowers et al.,
ForeclosedImpartiality in Capital Sentencing: Jurors'Predispositions,Guilt-trialExperience, and Premature Decision Making, 83 CORNELL L. REv. 1476 (1998). The authors
concluded, as follows:
[Tihe conundrum is this: Many jurors make premature pro-death punishment
decisions, and most of them are absolutely convinced that death is the right
punishment and stick with it thereafter. Pre-existing feelings that death is the
only acceptable punishment for many kinds of aggravated murder and the belief that premeditated murder requires the death penalty substantially contribute to an early pro-death stand. This reality is manifestly contrary to the
principles of capital sentencing in Lockett v. Ohio. Early pro-life stands are
largely independent of death penalty values or predispositions but they are
strongly influenced by lingering doubt about the defendant'sguilt. The strength
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JUDICIAL NULLIFICATION
Evidently, when given the power to sentence, jurors weigh the
doubts they have about the guilt of the person they are to sentence.
The law has had an unsettled history in dealing with this issue, but
jurors consider them anyway. The case of United States v. Davis1 2 ' is
one of several in the past few years that have sought a reconciliation
of this history. In Davis, Judge Helen Berrigan presided over a resentencing hearing for two defendants facing the death penalty. The
Court found, after an extended review of precedent, that it had the
discretion to permit the defendants to raise residual doubt arguments
1 22
and to give an instruction on it to the jury.
In reaching this conclusion, the Court found "no clear consensus"
as to whether defendants had an "absolute right" to present such a
defense, but noted that many jurisdictions embraced such argument
"as a legitimate defense strategy," not prohibited by applicable law. 12 3
The applicable law in Davis was 18 U.S.C. § 3592, and Judge Berrigan
found that residual doubt was a matter within the scope of the mitigating circumstances authorized there.' 2 4 The Court sought to reconcile language in the Supreme Court's plurality opinion in Franklin v.
Lynaugh,i 2 5 with the prior opinion in Lockhart v.McCree.1 26 The reconciliation yielded a limited finding that the Constitution did not reof lingering doubt as a mitigating consideration among capitaljurors demonstrates that it is essential to the moral characterof capital sentencing. The Supreme Court so far has failed to grant or to recognize the place of lingering
doubt as an essential ingredient of a reasoned moral judgment. The guilt trial
has become a venue for advocating punishment stands and for injecting punishment considerations into the guilt decision. This shift is a reflection of both
unspoken assumptions about the purpose of the capital trial and the unique
character and gravity of the decision. Whatever the reasons, the consequence
is a system gone awry from the start.
Id. at 1546 (emphasis added) (citations omitted).
121. 132 F. Supp. 2d 455 (E.D. La. 2001).
122. United States v. Davis, 132 F. Supp. 2d 455, 456 (E.D. La. 2001).
123. Davis, 132 F. Supp. 2d at 456. THE MODEL PENAL CODE § 210.691 (Official
Draft 1980), also embraces this concept.
124. Davis, 132 F. Supp. 2d at 456.
125. 487 U.S. 164 (1988).
126. 476 U.S. 162 (1986). Following McCree, the Supreme Court, in Buchanan v.
Kentucky, 483 U.S. 402 (1987), permitted a death-qualified jury in a case involving a
joint trial where the death sentence was not sought against one defendant. The Court
again noted that one justification for the use of such a single jury was the residual doubt
issue. Id. at 417. The dissent chided this view since a defendant was unable to waive
this purported "benefit" by opting for a non-death qualified jury to determine his guilt.
Id. at 427. This justification was also argued by the dissenters in Grigsby v. Mabry, 758
F.2d 226 (8th Cir. 1985) where the Court expressed the belief that residual or "whimsical" doubts have been "recognized as an extremely effective argument for defendants in
capital cases," and would be an argument eliminated to some degree if two juries were
used. Id. at 248 (Gibson, J., dissenting). It has always struck the author as ironic that
if one of the supposed justifications for the single, death qualified jury is the possible
influence of residual doubts, it is strange that Courts are not mandated to instruct that
single jury that such doubts are properly weighed by them. See Franklin v. Lynaugh,
487 U.S. 164 (1988); Ruiz v. Norris. 868 F. Supp. 1471 (E. D. Ark. 1994).
CREIGHTON LAW REVIEW
[Vol. 38
quire a trial court to instruct the jury that they had to consider
residual doubt in their death penalty decision.' 27 Those cases did not,
evidently, resolve all issues as the court noted, "[w]hat is left unanswered, however, is whether "residual doubt" arguments/instructions
are entirely prohibited or whether they can be and are authorized by
28
other than constitutional mandate, such as a statute."
The Court found its answer in an exhaustive review of precedent
in the Fifth and Eleventh Circuits, concluding that these Circuits
have "consistently acknowledged 'residual doubt' as a legitimate mitigating factor in [capital] cases, Franklinnotwithstanding."' 29 The appellate courts recognized this mitigating quality in two contexts.
First, when exculpatory information was allegedly withheld, the impact was assessed not just in the guilt phase, but in the penalty context as well. Second, the courts assessed cases where trial counsel
was alleged to be ineffective for either not pursuing residual doubt
arguments or pursuing them to the exclusion of others in the penalty
phase.' 30 Here particularly, the Davis Court found that, far from being proscribed, such arguments were legitimate matters of mitigation
in a capital sentencing proceeding.' 3 1
The Court also found that the statute it had to apply permitted
32
the residual doubt argument and required the jury to weigh it.'
This conclusion was partially supported by the Court's view that the
standard of proof beyond a reasonable doubt was simply not sufficient
to weed out instances of wrongful convictions and that, particularly
where the finality of the death penalty limited the circumstances
under which those mistakes could be corrected, allowing a jury to entertain its doubts in the context of its sentence was more than
proper. 133
Another District Court recently picked up the Davis theme and
reached the same conclusion. In United States v. Foster,'3 4 Judge
Catherine Blake first denied a defendant's Rule 29 motion in a case
involving the apparent execution of a witness, but then found that the
legal sufficiency of the evidence would not preclude the jury's consideration of a residual doubt argument:
127. Davis, 132 F. Supp. 2d at 458.
128. Id.
129. Id.
130. Id. at 458-64. This latter point was the theme of Williams v. Woodford, 306
F.3d 665, 721-22 (9th Cir. 2002), in which counsel was not found to be ineffective for
pursuing a residual doubt defense, given the recognition of the potential effectiveness of
such a strategy.
131. Id.at 464.
132. Id. at 468.
133. Davis, 132 F. Supp. 2d at 466-69.
134. No. CCB-02-0410, 2004 U.S. Dist. LEXIS 6965 (D. Md. April 9, 2004).
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JUDICIAL NULLIFICATION
[D]enial of the Rule 29 motion, however, does not mean that a
juror should not consider any lingering doubt he or she may
have concerning Mr. Taylor's responsibility for the murder of
Mr. McManus. The court agrees with the analysis in United
States v. Davis. While the Constitution does not require that
the jury be permitted to consider residual doubt as a mitigating factor, neither does the Constitution forbid such consideration. Further, even if residual doubt is not considered to fall
within the traditional definition of a mitigating factor; the
statutory list of factors in 18 U.S.C. § 3592 is not exclusive.
Residual doubt as to guilt is a powerful, and appropriate, factor for a jury to consider before imposing the ultimate and
irrevocable sanction of death. Accordingly, the jury will be
instructed that they may consider residual doubt as a miti135
gating factor concerning the murder of Robert McManus.
Two other federal cases are of note. Justice Scalia, dissenting in
Kyles v. Whitley, 13 6 would have found the due process violation that
otherwise occurred there insufficiently prejudicial to warrant relief
not just because the evidence not disclosed would have failed to
change the guilty verdict, but also because it would not have created
residual doubts "sufficient to cause the sentencing jury to withhold
capital punishment."1 3 7 While not necessarily a ringing endorsement
of the need for greater recognition of the place of residual doubt consideration in the sentencing process, it is an acknowledgement of it
nonetheless.
The issue of residual doubts as a forum for the establishment of
prejudice in collateral claims was also noted by three dissenting
judges in the Eighth Circuit's opinion in Foster v. Delo.13 8 The issue
in Foster was trial counsel's failure to properly advise his client about
his right to testify in the penalty phase of a capital case. Even though
there was no precise showing of what he may have said during the
testimony, Judge Bright and others were unconvinced that prejudice
warranting relief was not present:
[W]hat renders the result in this case fundamentally unfair
or unreliable is that had Foster testified, his appearance and
demeanor, coupled with the mitigating testimony offered on
his behalf, could well have caused the jurors who entertained
genuine doubts and who were troubled by an absence of abso13 9
lute certainty to vote against imposing the death penalty.
135.
April 9,
136.
137.
138.
139.
United States v. Foster, No. CCB-02-0410, 2004 U.S. Dist. LEXIS 6965 (D. Md.
2004).
514 U.S. 419 (1995).
Kyles v. Whitley, 514 U.S. 419, 475 (1995).
39 F.3d 873 (8th Cir. 1994).
Foster v. Delo, 39 F.3d 873, 887 (8th Cir. 1994) (footnote omitted).
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The recognition of the clear reality of jurors' consideration of such
doubts in their sentencing function is something courts should openly
acknowledge in their own. Such recognition, at least in capital cases,
may be found in state court decisions.
In State v. Chaney, 140 the Missouri Supreme Court expressly considered the strength of the state's case in performing a proportionality
review under § 565.035 of the Missouri Code, and in vacating a death
sentence. The court found that it was required "to go beyond a mere
inquiry into whether the evidence is sufficient to support a conviction" 14 1 and to find whether the weight of the evidence was as significant as it was in other cases in which death was justified. The court
noted that the lack of eyewitness, confession or forensic evidence incriminating the defendant placed the case "within a narrow band
where the evidence is sufficient to support a conviction, but not of the
compelling nature usually found in cases where the sentencing is
death."14 2 Death was ruled disproportionate, in part because some
level of doubt was still present.
While Arizona's statute permitting a judge to fix the sentence of
death would provide the Supreme Court of the United States with the
chance to extend Apprendi to capital cases and strike that procedure
down, 143 it also provided a forum for the Arizona Supreme Court to
discuss the importance of residual doubts in the sentencing decision.
44
In State v. Harrod,1
the majority declined to adopt residual doubt
considerations explicitly but did indicate that the defendant's proffered polygraph results would not have changed the outcome in any
event. The court did observe that any judge who did entertain any
145
doubt about the defendant's guilt was not likely to impose death.
Justice Jones specially concurred in Harrod, arguing that
residual doubt should be recognized as a mitigating factor in sentencing. His reasoning was simple: "[d]ue consideration of the judge's lingering doubt at the appropriate time may benefit a civilized society in
which justice and fairness are fundamental to the system." 14 6 Justice
Feldman was even more direct. The well documented instances of
wrongful convictions convinced him that it was time for courts to confront the haunting questions of "What harm is done by showing mercy
because there is a possibility of the defendant's innocence?" and "Why
140. 967 S.W.2d 47 (Mo. 1998).
141. State v. Chaney, 967 S.W.2d 47, 60 (Mo. 1998).
142. Id.
143. Ring v. Arizona, 536 U.S. 584 (2002).
144. 26 P.3d 492 (Ariz. 2001), rev'd, 536 U.S. 953 (2003).
145. State v. Harrod, 26 P.3d 492, 500 (Ariz. 2001).
146. Harrod, 26 P.3d at 503 (Jones, V.C.J., concurring).
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JUDICIAL NULLIFICATION
587
need we run the risk of executing someone who may actually be
14 7
innocent?"
The Supreme Court of Oregon also offered a recent analysis of the
Lockhart/Franklin state of the law and reached conclusions much in
accord with Davis and Foster.148 In State v. Guzek, 14 9 the court considered whether a defendant should have been allowed to introduce
alibi evidence in the penalty phase of his trial that, if believed, would
have placed him somewhere other than the scene of the murder. The
court agreed that the evidence should have been allowed, relying primarily on Green v. Georgia,150 a per curium reversal of a conviction
where evidence of a similar nature was excluded in the guilt phase on
hearsay grounds but was found by the Supreme Court to he highly
relevant as well in the penalty phase. 15 1 The Guzek Court held:
[A]s can be seen, the facts of Green appear to be analogous to
the facts at issue here. As in Green, defendant here already
had been convicted of the murders of the victims, and, notwithstanding those earlier convictions, defendant sought to
introduce evidence at his third penalty-phase proceedingwhich he did not seek to introduce during the guilt phasethat, if believed, would have shown that he had not been present at the victims' home at the time of the murders. Applying the Court's reasoning in Green, we conclude that such
evidence was "highly relevant to a critical issue" in the penalty phase, and therefore was required to be considered by
the jury under the Eighth Amendment. It follows that that
evidence also qualified as "mitigating evidence" under the
statutory scheme set out in [O.R.S. § 163.150(l)(a), (b)(D),
and (c)(B)]. Accordingly, the trial court erred in excluding
that evidence at defendant's third penalty-phase proceeding,
and, if the state again pursues the death penalty on remand,
and if defendant again offers his alibi evidence, that evidence
15 2
shall be admissible.
The court acknowledged that the plurality in Franklin held that
an instruction on residual doubt was not constitutionally required, but
found that such a principle did not preclude evidence to be offered re147. Id. at 506 (Feldman, J., concurring).
148. The Supreme Court of California has also noted its state structural acceptance
of the residual doubt theory and the presence of a standard instruction on the matter.
People v. Valdez, 83 P.3d 296 (Cal. 2004); People v. Maury, 30 Cal. 4th 342, 68 P.3d
1(2003).
149. 86 P.3d 1106 (Or. 2004).
150. 442 U.S. 95 (1979).
151. State v. Guzek, 86 P.3d 1106, 1127 (Or. 2004).
152. Guzek, 86 P.3d at 1127-28 (citations omitted).
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garding residual doubt and the jury from considering it. 15 3 As noted
before, the jurors would have considered it anyway.
The United States Supreme Court has never tried to order the
tides to recede by mandating that jurors be told they cannot consider
their residual doubts about guilt when sentencing someone. As the
above authorities demonstrate, such an effort would fly in the face of
law and reason simultaneously. Why, then, do we resist it?
Perhaps the unsettled jurisprudence in this area reflects our hope
that a "beyond a reasonable doubt" standard is the magic talisman of
truth that will lead to only the truly guilty being convicted. But
neither the standard itself nor its history of practical application can
support such wistful hope. Perhaps we are all such children of process
that we stubbornly wish to compartmentalize our efforts into "guilt
determination" and "sentence imposition," rigidly rejecting the influx
of issues of one into the other just to keep the process orderly. Such is
also an affectation in which we may indulge only at the peril of the
justice we hope our system will do. The process is neither orderly (in
that sense) nor symmetrical.
Guilt determination is a process that begins with a presumptively
innocent citizen who, whether he knows it or not, has a world of philosophical arguments behind him that before any government can treat
him as guilty, several precisely defined things must happen. The legislature he consented to has to define a crime; an executive has to offer
lawfully obtained evidence to support a finding of the elements of the
crime; that offer has to come within the fair processes of the judiciary;
and, finally, a committee of his fellow citizens must give a unanimous
nod of approval, signifying to the judiciary that the complex process of
sentencing him may begin. The process leading to this authorization
is a maze concocted to limit his government and partly secure the freedom of his country.
But once that authorization is given, the process does not start
anew. What comes before a conviction is always relevant to the act of
sentencing and, indeed, if the studies on capital juries are any reflection, it is the most relevant factor that influences the sentencing process. Why should it not be so when death is not at issue?
The Davis Court collected the standard authorities on the notion
that "death is different" and, certainly, there can be no quarrel with
that. But sentences of any kind extract a physical, emotional and
reputational toll on people. 154 Substantive justice should mean we
neither kill nor excessively incarcerate people when we are reasonably
troubled over whether their acts justify the fate they otherwise face.
153.
154.
Id.
See In re Winship, 397 U.S. 358, 363-71 (1970).
2005]
JUDICIAL NULLIFICATION
589
A system of sentencing seeking the common good would allow for
a judge to do in every case what jurors do in death cases: weigh any
residual doubts about guilt with every other relevant factor in determining a sentence that gives dignity to the process and all concerned.
As it turns out, traditional concepts of the role of the judge and jury
permit it. An examination of the external limits of these authorities
and their internal make-ups demonstrate that no new ground need be
broken to recognize publicly this important component of the system.
c.
Acting on Residual Doubts as Consonant With the Established
Powers of Judge and Jury: The External ViewTraditional Limits and Authorized Oversight
(i)
Express Limits on the Trial Jury's Role: Powerless as to Law,
Ignorant as to Sentencing
Two longstanding principles that define by limitation the power of
the jury stand undisturbed in the era of Apprendi. First, it is an ancient and honored rule that while the jury is to decide questions of fact
in the case, they are not free to make an independent judgment of the
law; rather, they must accept the law as given to them by the Court.
This principle was discussed at great length in the case of Sparf v.
15 5
United States.
Quoting many sources, Justice Harlan concluded that members of
a petit jury are not free to decide questions of law contrary to the way
in which the trial judge explains it to them. 156 He relied on the opinion of Justice Chase in a prior case in which the Court held that the
jury could not determine the law for the same reason it could not make
law: the Constitution granted that power to the legislature and no
small, ad hoc committee of the people were empowered to overrule
that grant.157 If a jury has the power to negate the law, they have, in
effect, the power to make law and such an assertion would put the
petit jury "superior to the national legislature," something not possible
in a republic established under liberal democratic ideals. 158
Moreover, Justice Harlan noted that a group of jurors unbounded
by the law would, in effect, be unbounded by any law. In such a circumstance, a court could not serve its function of protecting the rights
of individuals if jurors were free to disregard the rules designed to
that end. Such a process would usher in the rule of a government of
men, not a government of laws, with the subservience of individual
liberty to the passionate dictates of a mob, albeit one made up of the
155.
156.
157.
158.
156 U.S. 51 (1895).
Sparfv. United States, 156 U.S. 51, 62-63, 69, 78 (1895).
Sparf, 156 U.S. at 71.
Id.
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twelve people in the jury box. Such a system would be in gross conflict
with its philosophical origins.
A third reason Justice Harlan cited for the jury's incompetence to
decide questions of law is that a court could not then be empowered to
set aside a verdict as being against the law, the court not having the
final authority to determine what that law might be. 15 9 The later
point is a subtle recognition of the fact that while jurors are ostensibly
to be the judges of the facts, they may only judge the facts if the facts
would legally support the verdict they might otherwise render. As I
will discuss in a later point of this article, the power of the court to
review a jury verdict has been long standing and anticipates a sharing
of authority between the two entities on issues of guilt that should
also logically support a court considering those issues at the time of
sentencing.
All in all, there is a clear mandate that jurors not be under the
false impression that what the court gives them by way of instruction
on the law is simply a helpful suggestion to be disregarded if they so
choose. A court retains a significant role in the jury's determination,
being obligated to give the jurors an accurate account of the law,
which they are to apply to the facts that they find. A jury verdict is
something that a court is a part of on many levels, before and after it
is rendered.
The second principle that dictates the relationship between the
court and jury is that the jury is not to concern itself over the issue of
the possible penalty. 160 The Supreme Court in Shannon v. United
States has listed among the "familiar precepts" of the law the fact that
juries, except at that point in a capital case where sentencing becomes
a matter of their concern in a distinct phase of the case, should not be
informed of any aspect of the sentencing that may follow a verdict of
guilty and, in fact, should be told that sentencing is a matter outside
159. Id. at 101.
160. KirrRIE ET AL., supra note 106, charts the ebb and flow of sentencing power in
history. The judiciary, having wrested the power of sentencing from lay members of the
community on the grounds that a jury was far too subjective, then began to face the
attack from the legislature that its sentencing decisions lack predictability and fostered
'undue disparity." Id. at 193. This battle, in fact, reflects the same philosophical battle
that Professor Green discusses, that is, the legislature's insistence on punishing the
offense versus the judiciary's recognition that critical aspects of the offender also play
into the affixing of a just sentence. The free will/determinism debate ebbs and flows
with neither existing in a pure paradigm as something consistent with either the Constitution or fundamental notions of justice. As the Kittrie group points out, where
wholly determinate sentencing is utilized, the system often experiences an internal rejection of it, at least to the extent that other parts of the system (the charging process
and all aspects of prosecutorial discretion), become more under scrutiny because to the
extent that the sentencing process does not allow for the modification and doing of substantial justice, great pressure is put on other aspects of the system to modify the inevitable unduly harsh results in specific cases. Id. at 264 -65.
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of their concern. 16 1 Quoting the prior opinion in Rogers v. United
States,162 the Shannon Court held "it is well-established that when a
jury has no sentencing function," it should be admonished to "reach its
16 3
verdict without regard to what sentence might be imposed."
Further:
[T]he principle that the jury is not to consider the consequences of its verdicts is a reflection of the basic division of
labor in our legal system between judge and jury. The jury's
function is to find the facts and decide whether, on those
facts, the defendant is guilty of the crime charged. The judge,
by contrast, imposes a sentence on the defendant after the
jury has arrived at a guilty verdict. Information regarding
the consequences of a verdict is irrelevant to the jury's task.
Moreover, providing jurors with sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding 1 responsibilities
64
and creates a strong possibility of confusion.
This principle is also consistent with the overall constitutional
structure. 165 If juries are not to be given a free hand to reconfigure
the law on the grounds that the law-making function has already been
given by the people to the legislative branch, their sphere of authority
must also not disturb that which is vested in the courts. Discretionary
aspects of the sentencing process are properly granted to a court
whose function it is to blend the deterministic judgment of the legislature with the social science considerations of the circumstances of the
particular defendant and achieve, in the name of that common good
161. Shannon v. United States, 512 U.S. 573, 579-80 (1994).
162. 422 U.S. 35 (1975).
163. Rogers, 422 U.S. at 35.
164. Shannon, 512 U.S. at 579 (citing Rogers, 422 U.S. at 40; Pope v. United States,
298 F.2d 507, 508 (5th Cir. 1962)). These principles also pervade State Court systems.
See Kristen K. Sauer, Note, Informed Conviction:Instructingthe Jury about Mandatory
Sentencing Consequences, 95 COLUM. L. REV. 1232 (1995) (compilation of authorities).
165. Ancillary to this proposition is the doctrine that a jury should not be permitted
to consider a lesser included offense unless the facts of the case would support it. In
death penalty cases, for example, lesser included offense instructions may be refused
unless the evidence would support them and they would not be offered simply for the
purpose of allowing a compromise verdict. Hopper v. Evans, 456 U.S. 605 (1982). In tax
cases, a lesser included offense instruction cannot be given unless the disputed element
in the case in one contained only in the greater offense since, otherwise, consideration of
the lesser included offense would allow the jury to considered matters of the penalty,
something that is not its function. United States v. Bishop, 412 U.S. 346, 361 (1973).
State Courts have also gradually got away from the idea that a jury has some "mercy
dispensing" function. In Pennsylvania, for example, while the matter was the subject of
some debate down through the years, the Supreme Court of Pennsylvania has definitely
determined that instructions on lesser degrees of homicide may be given only in a case
where the evidence would lawfully support it. Commonwealth v. Pierce, 786 A.2d 203,
212 (Pa. 2001). See also extended discussion in Commonwealth v. Grove, 526 A.2d 369
(Pa. Super. 1987).
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Locke extolled, the best outcome such imperfect ingredients may
produce.166
Few cases discuss the breadth or depth of judicial role in the sentencing determination with more expansive language than Williams v.
New York. 16 7 In Williams, Justice Black found a circumstance where
a trial judge overruled a jury's verdict of life in prison and imposed the
death penalty based upon the judge's review of an extensive pre-sentence report. While the outcome of Williams today would be in grave
doubt as a result of Ring v. Arizona, 168 the broader principle Justice
Black announced reflects an underlying philosophy about the sentencing process which no amount of change in the determinate sentencing
trends of today have eliminated.
Justice Black described the dichotomy of the trial and sentencing
process as follows:
[I]n a trial before verdict, the issue is whether a defendant is guilty of having engaged in certain criminal conduct
of which he has been specifically accused. Rules of evidence
have been fashioned for criminal trial which narrowly confine
the trial contest to evidence that is strictly relevant to the
particular offense charged. These rules rest in part on a necessity to prevent a time-consuming and confusing trial of collateral issues. They were also designed to prevent tribunal
concern solely with issue of guilt of a particular offense from
being influenced to convict for that offense by evidence that
the defendant had habitually engaged in other misconduct. A
sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional
limits is to determine the type and extent of punishment after
the issue of guilt has been determined. Highly relevant-if
not essential-to his selection of an appropriate sentence is
the possession of fullest information possible concerning the
defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to
obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the
trial. 169
166. Even where sentences are mandatory, as where a jury weighs aggravating and
mitigating factors as elements of a capital case, the discretion of the judge is most profoundly confined on its upper end, that is, a judge may not impose the penalty without
those findings. Ring v. Arizona, 536 U.S. 584 (2002). The judge has established legal
devices, however, to mitigate that imposition.
167. 337 U.S. 241 (1949). See also United States v. Wise, 976 F.2d 393 (8th Cir.
1992).
168. 536 U.S. 584 (2002).
169. Williams, 337 U.S. at 246-47.
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All of this process, according to Justice Black, reflected the "modern philosophy" that punishment "should fit the offender and not
merely the crime."1 70 He observed that:
[T]his whole country has traveled far from the period in
which the death sentence was an automatic and commonplace result of convictions-even for offenses today deemed
trivial. Today's philosophy of individualizing sentences make
sharp distinction, for example, between first and repeated offenders. Indeterminate sentences the ultimate determination of which are sometimes decided by non-judicial agencies
have to a larger extent taken the place of the old rigidly fixed
punishments. The practice of probation which relies heavily
on non-judicial implementation has been accepted as a wise
policy. Execution of the United States parole system rests on
the discretion of an administrative parole board. Retribution
is no longer the dominant objective of the criminal law. Reformation and rehabilitation of the offenders
have become im7
portant goals of criminal jurisprudence.' '
While Justice Murphy would criticize the Court's opinion as one
which was contrary to the view that the jury in our system sits "as the
representative of the community; its voice is that of the society against
which the crime was committed;" 7 2 one may also wonder whether
Justice Black's conception of the "modern view" is consistent with that
of the Sentencing Guidelines.
Be that as it may, we have never returned to the Blackstone era of
dispensing sentences as if from a vending machine, the activating coin
being the fact of conviction for a particular category of offense. Regardless of the ebb and flow of the conflict as to what is relevant to
sentencing, the sentencing process today remains a complex mix of
considerations for a trial judge. The nature of the offense certainly is
one, representing the legislature's judgment as to the necessity of punishment for a given act. But there are others, rendering the sentencing process one "that rightly vest in a sentencing court a discretionary
judgment to achieve goals of the system which can only be sought by a
broader consideration of the circumstances of the case and the
73
offender."'
170. Id.
171. Id. at 247-48 (citations omitted).
172. Id. at 252.
173. The author is intrigued by the parallels between this struggle in the criminal
system to ones that are evidently ongoing in the commercial side of the law. Dr. John
Murray, in The Revolution in Contract Law: The Search for Decency, writes regarding
the effort of some in the name of efficiency to strip from Courts the power to consider
more complicated matters of contract theory under a common law totality of the circumstances approach. As Dr. Murray points out, objections on the grounds of inefficiency to
such an approach overlook the fact that the common law process is not one that invites
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It is clear that while the jury plays a crucial role in authorizing
the sentencing decision, once the sentencing decision is authorized,
the judge must do the work which the people have delegated to the
judicial branch in this regard. Juries are not welcome in the sphere of
the law or even to know what lies beyond the moment they are discharged. Their role is powerful, but narrowly defined.
(ii) An Express Elevation of the Court: The Traditional Power Over
a Verdict and Who Really Has the Last Word
The jury passes through a case. It has no role in the investigation
of it, the prosecutor's decision to charge it, the preliminary matters of
discovery or suppression of evidence, the law relating to how it is itself
selected for its purpose, rulings on the evidence it will hear, the legal
sufficiency of the evidence it considers, or what happens after it
emerges from its deliberations to speak its one or two word verdict.
Conversely, a judge may know a case almost from its outset, authorizing warrants, reviewing the sufficiency of the charges, directing
discovery, ruling on the legality of evidence seized, passing on evidence as it is tendered, and ruling on the sufficiency of the showing
made. At the verdict's pronouncement, the jury leaves; the judge remains. The work of judging does not, of course, begin at that moment;
as the presiding continues over a process which the jury's verdict has
profoundly affected but as to which a judge retains considerable authority not only with respect to the matter of sentence but also with
respect to the issues of guilt or innocence.
The Haut Court considered the matter of the Rule 29 power of a
court to grant judgment of acquittal either before submission to a jury
or after it had rendered its verdict. Understanding a little bit about
'ad hoc judicial reasoning in perpetuity." Id. at 43. The common law is not a standardless law. It is one in which important considerations are developed over time that allow
future Courts to fashion the relevant context of guiding legal principles and to apply
them without the rigidity that strips a court of its essential judicial function. Judges
are precisely competent to engage in a totality of the circumstances type approach, Id.
at 44, particularly where that approach involves both a degree of fact-finding and a
understanding of the overall applicable legal principles.
In the commercial context "the material breach and parole evidence analogies require judges to engage in a contextual inquiry which is precisely the kind of inquiry that
is essential if anything resembling the goal of recognizing only fair and balanced boilerplate terms as operative is discoverable." Id. at 45. In the criminal context, reliance
upon standard form sentencing in the name of efficiency and predictability is as bound
to fail as was the effort by 20th century contract law "to address the tension between
stability and efficiency of contract law as facilitated by standard forms and fundamental
fairness to the parties in determining the operative effect of boilerplate terms." Id. At
the end of the day, the system will have to recognize that "it is the responsibility of
Courts to return to their competent process of practical judicial reasoning" and to face
the complex issues of both contract interpretation and criminal sentencing "in the interest of the illusive concept called 'justice.'" Id.
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595
this power as well as a power that the Haut Court never recognized is
important to understanding why a judge's sentencing consideration
may properly be affected by doubts as to guilt.
A judge presiding over a jury trial who believes that the evidence
is insufficient as a matter of law to sustain the verdict may, by granting a Motion for Judgment of Acquittal at the close of the government's case, not only discharge the defendant but discharge him for
good given that the grant of such a motion bars the government from
an appeal under the double jeopardy clause.17 4 Even when the judge
waits until the jury's verdict, he may still grant the judgment of acquittal motion and, while the government may seek an appeal in that
case, 17 5 if the judgment is upheld, the jury verdict of guilty is disregarded and the defendant discharged.
The standard for a Rule 29 order pays homage to the various considerations we have already seen regarding the relative roles of jury
and judge. A general statement of the standard ofjudgment of acquittal is that a judge must consider whether any reasonable jury, viewing
the evidence in a light most favorable to the government and drawing
such reasonable inferences as may be drawn from the evidence, could
find the defendant guilty beyond a reasonable doubt. 1 76 Credibility
decisions are to be deferred to the jury as long as a reasonable jury
177
could have found the evidence credible.
The standard presents an interesting insight with respect to the
system's perception of the judge/jury role. We obviously assume that
there are unreasonable juries out there. We believe that some of them
are capable of finding a defendant guilty even where no reasonable
jury could do so, and must be stopped from doing so even before they
have the chance. We also believe that some juries have done what no
reasonable jury could do and have found someone guilty in the face of
legally insufficient evidence, and we must undo that deed. Does this
power effectively negate the jury's role as a check on the judiciary as
Blakely implies since, after all, it appears that it is the judiciary that
is checking the jury by either not allowing it to exercise its prerogative
or by overturning its prerogative in what the court deems is an appropriate case?
Viewed conceptually, there is no difficulty in Rule 29 and parallel
state rules operating in this manner. There are two reasons for this.
First, juries function as a body to authorize the actions of the branches
of government. Unless all of those branches are in accord that a
174.
175.
176.
177.
United States v. Martin Linen Supply Co., 430 U.S. 564 (1977).
Smalis v. Pennsylvania, 476 U.S. 140 (1986).
See, e.g., United States v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002).
United States v. Alarcon-Simi, 300 F.3d 1172, 1176 (9th Cir. 2002).
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charge may proceed, there is no occasion to seek the jury's authorization. Part of the proper functioning of the court is to make sure that a
charge is in proper form and is of a sufficiently substantial nature to
bring in the final piece of the constitutional puzzle, the jury, to authorize the system to proceed to the punishment stage. The legislature
has presumably authorized prosecutions of the nature presented; the
executive believes that this particular defendant fits the category of
prosecutable person defined by the statute, and the court, in the last
instance, has passed on the assemblage of evidence to advise the jury
that, if they so authorize, everything is properly in place to commence
the sentencing phase.
The second reason, while related to the first, is different in kind.
While the first reason is a process-oriented concern, there must be an
independent concern about results. The Rule 29 process works only
one way: a court will never direct a verdict of guilty and cannot enter
judgment of guilt when a jury says otherwise. It is only when a verdict of guilty is deemed unjust that a Court may act to correct a
"wrong" result the standard of proof beyond a reasonable doubt did not
catch. The "common good" allows for substantive justice to be done;
indeed, it insists on it. The Court thus plays an important role in the
measuring of reasonable doubt by way of making an assessment as to
whether the case was one that should have been submitted to a jury in
the first place.
In fact, the system affords the court a second, even broader based
device to do substantial justice where the jury verdict represents, to
the court's reasoned judgment, an unjust conviction. What the Haut
Court overlooked was that a court has traditionally been able to exercise the power to grant a new trial on the basis that the verdict was
against the weight of the evidence. In the federal system, granting
such a motion occurs "if the interest of justice so requires," under Rule
33(a) of the FederalRules of Criminal Procedure.
In exercising its authority under Rule 33, the court is not bound to
afford the government the benefit of the doubt as to the credibility of
witnesses; rather, the court is permitted to independently assess credibility and grant a new trial if it believes that the verdict is so contrary
to the weight of the evidence that only a new trial can correct the potential injustice that has been done. 178 The court must exercise its
discretion in this regard, weighing all of the evidence and determining
whether to allow the verdict to stand is to participate in a miscarriage
178. United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000); United States
v. Washington, 184 F.3d 653, 657-59 (7th Cir. 1999); United States v. Lanier, 838 F.2d
281 (8th Cir. 1988).
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JUDICIAL NULLIFICATION
of justice. 1 79 Similar to the federal system, state court judges generally enjoy the authority to grant a new trial on the basis that the verdict is against the weight of the evidence. 18 0
In contrast to cases where a court finds that a case should have
never been submitted to the jury in the first place because it was legally insufficient, the philosophical underpinning of a ruling that a
verdict is against the weight of the evidence is that a court has seen
the matter as the jury did and must effectively second guess the verdict even though the case was legally sufficient. This power does not
extend to allowing the court to nullify a jury's verdict simply because
the court disagrees with the jury's assessment of the evidence. Nonetheless, the court is enabled to overturn the verdict and grant the defendant the opportunity to have a second group of the citizenry
determine whether the first group's judgment was an aberration leading to a miscarriage of justice. It does not supplant the jury's power to
179. United States v. Campos, 306 F.3d 577 (8th Cir. 2002). Indeed, the Third Circuit has held that where a court believes that there is a serious danger of injustice, that
is, that an innocent person may have been convicted, the court is empowered under the
rule to grant a new trial. United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002)
(citing United States v. Santos, 20 F.3d 280 (7th Cir. 1994)).
180. In Pennsylvania, Rule 720(B)(1)(vi) of the PENNSYLVANIA RULES OF CRIMINAL
PROCEDURE allows a Court to grant a new trial upon such basis. In Commonwealth v.
Champney, 832 A.2d 403 (Pa. 2004), the Court said that when a verdict shocks the
Court's sense of justice, a new trial may be granted. In Iowa, the court "may weigh the
evidence and consider the credibility of witnesses. If the court reaches the conclusion
that the verdict is contrary to the weight of the evidence and that a miscarriage ofjustice may have resulted," it may set aside the verdict and grant a new trial. State v.
Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). The exercise of discretion to grant a new
trial based on the weight of the evidence "should be exercised with caution, and the
power to grant a new trial on this ground should be invoked only in exceptional cases in
which the evidence preponderates heavily against the verdict." Id. at 659 (quoting 3
CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 553,
245-48 (2d ed.1982)).
See also State v. Martin, No. 03-2033, 2004 WL 2388291, at *2 (Iowa App. Oct., 27,
2004). In Texas, the Court can set aside a verdict if it so contrary to the overwhelming
weight of the evidence "as to be clearly wrong and unjust" and, thereby, "undermine
confidence in the jury's determination or the proof of guilt." Wilson v. State, Nos. 12-0200042-CR 12-02-00043-CR, 2003 Tex. App. LEXIS 6654 (2003). In Florida, FLORIDA
RULE OF CRIMINAL PROCEDURE 3.600(a)(2) specifically allows for a new trial to be
granted where the verdict is contrary to the weight of the evidence and such rule of
procedure enables the trial judge to determine the credibility of witnesses in making
this assessment. Geibel v. State, 817 SO.2d 1042 (Fla. Dist. Ct. App. 2002). In Tennessee, Rule 33(f) of the TENNESSEE RULES OF CRIMINAL PROCEDURE also specifically allows
a Trial Court to grant a new trial "following a verdict of guilty if it disagrees with the
jury about the weight of the evidence." The Tennessee Supreme Court has held that
this imposes on the trial judge the duty to serve as the thirteenth juror. State v. Carter,
896 S.W. 2d 119, 122 (Tenn. 1995). Finally, in Mississippi, Section 99-17-47 of the Miss.
CODE ANN. gives the Trial Court the authority to grant a new trial and Mississippi case
law permits a Trial Court to grant such a new trial when it concludes "based on its
evaluation of all of the evidence, that the jury's verdict was so against the weight of the
evidence that permitted to stand would work a substantial miscarriage of justice."
Windham v. State, 800 So.2d 1257 (Miss. App. 2001).
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authorize a sentence; it does allow a court to act as if it did not quite
hear the authorization the first time the people gave it and to ask
again for a clear and unequivocal statement that, on the basis of this
evidence, sentencing should actually proceed.
Taken together, the type of rulings Federal Rules 29 and 33 permit make a profound statement about the relationship between a
judge and a jury. A jury verdict is not (and has never been) the final
and unassailable word as to the guilt of a defendant in a trial setting.
In significant ways, our system allows a judge to continue to assess
the guilt of the defendant even after the jury has spoken.
As our system has traditionally empowered a judge to strike the
jury's verdict entirely by grant of judgment of acquittal, or, to a lesser
degree, suspend the effect of that verdict by the grant of a new trial
where the judge's assessment of the weight of the evidence substantially differs from that of the jury, it recognizes that a judge's lingering
doubts about guilt are legitimate concerns upon which action may be
taken. Can Haut then be right that it is structurally offensive to allow
a judge to take action based on concerns of the same nature but of
lesser intensity by not nullifying the entire verdict but by imposing a
sentence that reflects the court's honest assessment of the facts before
it?
Put another way, once a guilty verdict is rendered, our system
already requires a judge to plot her level of comfort with the verdict on
a continuum of doubt and, if the discomfort rises to a certain level,
either discharge that verdict or ask a second jury to look at the question of guilt again. It would seem to offend little about the relationship between a judge and jury to allow the court to consider a third
point on the continuum of doubt and publicly entertain discomfort
about the guilt of the defendant in a sentencing process that is to
achieve a variety of goals, all of which are logically affected if the
judge reasonably admitted the possibility that the person he was sentencing may not have committed the crime. As long as a court, in sentencing, exercised those doubts openly, in an articulable fashion, and
with the understanding that the discretion being employed would be
reviewed by an appellate court on an abuse of discretion standard, the
court's exercise of a "lesser included power" offends nothing about the
importance of the jury's verdict or the jury's role in the constitutional
scheme.
The contours of that constitutional scheme have been viewed, in
this first instance, from the perspective of the traditional and external
rules limiting the jury's jurisdiction and authorizing the court to overturn a verdict. But the last five years has brought us a new, direct
insight into the internal workings of the jury's role and, by necessity,
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JUDICIAL NULLIFICATION
the residual power of the court in the sentencing process. This new
insight confirms what the external rules have implied: the power to
consider residual doubts in sentencing is a necessary attribute of the
judicial function.
d.
Acting on Residual Doubts as Consonant With the Internal
View of the Powers of Judge and Jury in the Age of
Apprendi
(i)
Apprendi and the Proper Role of the Jury in Sentencing
At the time Haut was decided, there was little reason to discuss
the nature of the power relationship between a court and a jury. That
reason was supplied two years after Haut when the United States Supreme Court decided Apprendi v. New Jersey.1 8 1 I have had the occasion in a prior article to discuss not only the evolution of the Apprendi
Doctrine but to offer my own extrapolation on the solidity of the great
political principle upon which it is based.18 2 Apprendi, its history and
its progeny, speak directly to the nature of the power relationship of
court and jury.
It is fair to trace the origins of the Apprendi rule in the modern
era to the Supreme Court's pronouncement in United States v.
Gaudin.18 3 Gaudin held that where something in a criminal charge is
deemed to be an element of an offense, both the Fifth Amendment's
due process clause and the Sixth Amendment's right to trial by jury
mandate that the jury, and only the jury, make that determination
before the system can act upon it. 1 8 4 In Gaudin, the Court reminded
that the right to trial by jury was something more than a defendant's
individual right to a particular process resolving disputes about the
allegations against him; rather, the institution of the jury trial was a
political construct, one meant to insure a broad based system of civil
and political freedoms. l8 5
This theme was picked up in Jones v. United States,18 6 where the
Court narrowly construed a federal statute that graded the crime of
car jacking based upon the degree to which the defendant inflicted
bodily harm on a victim during the theft. In order to avoid what the
Court deemed a significant constitutional problem, the Court held
that the statute required that the degree of harm be submitted to the
181. 530 U.S. 466 (2000).
182. See generally Antkowiak, supra note 4.
183. 515 U.S. 506 (1995). See also, United States v. Baumgardner, 85 F.3d 1305
(8th Cir. 1996).
184. See United States v. Gaudin, 515 U.S. 506 (1995).
185. See Apprendi, 530 U.S. at 477.
186. 526 U.S. 227 (1999).
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jury as an element, rather than simply be a factor to be determined by
87
the court at sentencing.'
Jones gave the Court the opportunity to point out the historical
tension between the jury's role and the sentencing process. At least at
the time of Blackstone, the paradigm of the system was that sentences
of determined severity were dispensed against individuals upon the
mere occurrence of their conviction. Juries, aware of that paradigm,
made efforts to alter their fact finding where attempts to mitigate the
sanctions seemed appropriate. 8 8 Legislatures reacted to this by frustrated efforts to reign in the jury, demonstrating an inappropriate appreciation of the essence of the jury as an institution that, by its very
nature as a troublesome and inconvenient impediment to the efficient
conviction of citizens, represented a profound statement on the limits
of judicial power. Judicial power was to serve at the specific authorization of a group of the citizenry whose task it was to allow the judge
to precede to the sentencing phase.' 8 9
Apprendi made this point far more explicitly. In the process of
striking down a sentencing scheme that allowed a judge, at the time of
sentencing, to find the additional factor that an assault had a hate
crime motivation and, by that finding, to increase the maximum penalty radically, the Court critically examined the history of the relationship between elements of the offense and what had come to be
called sentencing factors.190 That history showed that the sentencing
schemes initially used by the American criminal justice system required that punishment proceed almost inevitability from the fact of
conviction, not from some exercise of judicial discretion. 19 1 Where, in
that era, the prosecution sought a higher punishment than that provided by one statute, it was required to prove and charge a different
one that would carry elevated penalties; whatever the system would
allow as the upper limits of a judge's discretion in his sentencing au1 92
thority was to be a frontier carefully marked out by a jury's verdict.
Apprendi held that the "historic link" between the jury verdict
and the sentence was something that had truly never been removed
from the system even when it evolved to allow greater discretion for a
sentencing court in fixing the final term. The verdict was not, after
all, an act of sentencing. It was a manifestation of a larger effort to
check the unwarranted expansion of the powers of government by
having direct representatives of the people legitimize the process by
187. See Jones v. United States, 526 U.S. 227 (1999).
188. Jones, 526 U.S. at 240-46.
189. Id. at 246.
190. Apprendi, 530 U.S. at 478-79.
191. Id. at 479.
192. Id. at 481.
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giving the courts the authority to punish on a case by case basis.1 9 3
That authority was defined by the maximum possible penalty that the
Legislature would otherwise fix for the crime; that authority did not,
however, dictate a specific outcome within the parameters otherwise
available.194
Apprendi begat several cases, all of which affirmed and, indeed,
extended, its central precepts. In Harris v. United States,19 5 the Supreme Court affirmed prior rulings that a legislature could, consistent
with Apprendi, legitimately prescribe mandatory minimum sentences
as factors to be found by courts since they did not operate to set the
maximum term allowable. In Ring v. Arizona, 196 the Court struck
down numerous death penalty provisions that allowed a judge to determine the death penalty without specific findings by the jury as to
aggravating circumstances since, after all, those circumstances would
increase the maximum penalty allowed. Most recently, the Court took
the Apprendi line into the realm of guideline sentencing in Blakely v.
Washington,19 7 declaring that where a state sentencing scheme
prescribes a guideline term for specific offenses, judicial fact-finding
8
alone cannot extend that term without violating the jury trial right.19
Blakely has spawned a level of consternation particularly within the
Federal criminal system that is either remarkable or frightening to
behold, depending upon one's perspective, since the Federal Sentencing Guidelines have been stripped of their mandatory quality by its
implications.
But Blakely also does something entirely relevant to our present
purposes. Writing for the majority, Justice Scalia engages in a thorough analysis of the place of the jury in the sentencing system. He
defines that place in a way that at once demonstrates the importance
of the space the jury occupies but also, directly and by implication, reaffirms the place of the court as an entity not rendered irrelevant by
the jury's new prominence.
Blakely v. Washington' 9 9 is an excursion into fundamental political theory. Justice Scalia writes that Apprendi recognizes two "long
standing tenets of common law criminal jurisprudence." 20 0 Those ten193. Id. at 481-83.
194. Id. Of course, where the factor that increased the maximum penalty was a defendant's prior convictions, there was no need to submit that to a jury. In that case,
either a prior jury had already decided the matter or the defendant had waived the jury
determination by a guilty plea. Id. at 490.
195. 536 U.S. 545 (2002).
196. 536 U.S. 584 (2002).
197. 124 S.Ct. 2531 (2004).
198. Blakely, 124 S.Ct. at 2536.
199. 124 S.Ct. 2531 (2004).
200. Blakely, 124 S.Ct. at 2536
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ets are, first, that any accusation against a citizen will be judged true
if, and only if, a jury of his fellow citizens makes that determination
and, second, that any accusation that lacks "any particular fact which
the law makes essential to punishment" is incapable of authorizing
20 1
the imposition of such punishment.
Certainly, the truth determining function of the first tenet is one
that has a primary flavor of the protection of the individual defendant
who may rightfully insist that a body uninfluenced by the desire to
convict him be the one that determines whether his guilt is the truth
that arises from the evidence. 20 2 By contrast, the second tenet, that
an allegation lacking the finding of a jury is not one upon which any
further action is possible, is one that more nearly draws our attention
to the fundamental structural place of the jury on the political landscape. Justice Scalia makes this point quite explicitly:
[0]ur commitment to Apprendi in this context reflects not
just respect for longstanding precedent, but the need to give
intelligible content to the right of jury trial. That right is no
mere procedural formality, but a fundamental reservation of
power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to insure their control in
2
the judiciary. 03
Justice Scalia finds in the writings of the day compelling evidence
that the Framers believed that the right of the jury trial was one
which gave the body of the people the right to directly control and influence that judicial branch which its consent created. 20 4 This authority led Justice Scalia to determine that Apprendi simply "carries out
this design by insuring that the judge's authority to sentence derives
201. Id.
202. One could also say that such a process legitimizes the system by submitting the
question of what is true to the highest body in the political society, the people. However,
there is no real evidence that our society ever embraced the idea that the majority,
while the wellspring of political authority in the name of individual liberty, was the
repository of the truth in all contexts.
203. Blakely, 124 S. Ct. at 2538-39.
204. See Letter XV by the FederalFarmer (Jan. 18, 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 315, 320 (H. Storing ed., 1981) (describing the jury as "securing
to the people at large, their just and rightful controul in the judicial department"); John
Adams, Diary Entry (Feb. 12, 1771), reprintedin 2 WORKS OF JOHN ADAMS 252, 253 (C.
Adams ed., 1850) ("[t]he common people, should have as complete a control ... in every
judgment of a court of judicature" as in the legislature); Letter From Thomas Jefferson
to the Abbe Arnoux (July 19, 1789), reprinted in 15 PAPERS OF THOMAS JEFFERSON 282,
283 (J. Boyd ed., 1958) ("[wlere I called upon to decide whether the people had best be
omitted in the Legislature or Judiciary department, I would say it is better to leave
them out of the Legislature"). See Blakely, 124 S. Ct. at 2539.
2005]
JUDICIAL NULLIFICATION
wholly from the jury's verdict. Without that restriction, the jury
would not exercise the control that the Framers intended."20 5
He finds the Framers rejected the notion that the jury should be
construed as an entity necessary only to find those facts that the legislature chose to label elements of the crime, allowing the legislature to
segregate out other factors deemed solely in the province of a Court's
determination at sentencing. 20 6 This would not allow the jury to function as a "circuit breaker in the State's machinery of justice" since it
would effectively allow a legislature, by mere statute, to change the
structural nature of government by shifting more of the decision making power over the question of guilt and7 punishment to a "judicial in20
quisition into the facts of the crime."
The Framers also rejected the notion that legislatures may establish sentencing factors within certain limits, leaving it up to the judicial branch to determine when its role in fact finding has gone too far
into the realm properly reserved for the jury. A limited government
can hardly operate on faith in the government to stay within its own
territory:
[W]hether the Sixth Amendment incorporates this manipulable standard rather than Apprendi's bright line rule depends
on the plausibility of the claim that the Framers would have
left definition of the scope ofjury power up to judges' intuitive
sense of how far is too far. We think that claim not plausible
at all, because the very reason the Framers put a jury-trial
to
guarantee in the Constitution is that they were unwilling
20 8
trust government to mark out the role of the jury.
A limited form of government was also not necessarily the most
efficient kind we could imagine; efficiency was not, however, the key
consideration:
[U]ltimately, our decision cannot turn on whether or to what
degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values
would be better served by leaving justice entirely in the
hands of professionals; many nations of the world, particularly those following civil law traditions, take just that
course. There is not one shred of doubt, however, about the
Framers paradigm for criminal justice: not the civil law idea
of administrative perfection, but the common law ideal of limited state power accomplished by strict division of authority
between judge and jury. As Apprendi held, every defendant
has the right to insist that prosecutor prove to a jury all facts
205.
206.
207.
208.
Blakely, 124 S. Ct. at 2539.
Id.
Id.
Id. at 2540.
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legally essential to the punishment. Under the dissenter's alternative,9he has no such right. That should be the end of the
20
matter.
209. Id. at 2543. That will certainly not, however, be the end of the discussion about
the meaning of Blakely. Indeed, in the short period since its pronouncement, the Circuits struggled mightily with it in the context of its effect on the United States Sentencing Guidelines.
The Eighth Circuit originally decided to await clarification by the Supreme Court
before making any bold proclamations in the area. The Court issued an administrative
order dated September 27, 2004, directing that while, in most respects, appeals will go
on, substantive decisions on Blakely matters would be withheld pending further word
from the Supreme Court. This mandate has been expressly followed in United States v.
Pierce, 2004 U.S. App. LEXIS 23387 (8th Cir. 2004); United States v. Rosales, 2004 U.S.
App. LEXIS 22680 (8th Cir. 2004), and others.
While awaiting further review, the Circuit decided a few cases where the ultimate
outcome of Blakely would seemingly have no effect on the outcome of the particular
case. The Court found that no Blakely issue arose where: the sentence was a statutory
minimum, dictated by the plea or verdict, United States v. Lopez-Tapia, 2004 U.S. App.
LEXIS 23761 (8th Cir. 2004); the sentence was wholly driven by the defendant's prior
convictions, United States v. Watkins, 2004 U.S. App. LEXIS 22421 (8th Cir. Oct. 28,
2004); the sentence resulted from facts to which the defendant stipulated by his plea,
United States v. Martinez-Salinas, 2004 U.S. App. LEXIS 21153 (8th Cir. 2004) and
United States v. Mendoza-Mesa, 384 F.3d 951 (8th Cir. 2004).
Not all Courts of Appeals were as deferential as the Eighth Circuit in awaiting the
fate of the Guidelines by the Supreme Court. Several circuits found that the Guidelines
are not affected by Blakely, at least until the Supreme Court held otherwise. United
States v. Hammoud, 2004 U.S. App. LEXIS 15898 (4th Cir. 2004) (lower Courts should,
however, impose an alternative sentence unaffected by Guidelines in the event the
Guidelines are overturned); United States v. Pineiro, 2004 U.S. App. LEXIS 14259 (5th
Cir. 2004); United States v. Koch, 2004 U.S. App. LEXIS (6th Cir. 2004); United States
v. Duncan, 2004 U.S. App. LEXIS 17250 (11th Cir. 2004) (Blakely, at a minimum, does
not support plain error reversal).
Other Circuits declared the Guidelines unconstitutional. United States v. Ameline, 376 F.3d 967 (9th Cir. 2004). The Second Circuit withheld the issuance of mandates on cases possibly affected by Blakely but assumed the Guidelines were proper
until a definitive ruling. United States v. Cimino 2004 U.S. App. LEXIS 16629 (2d Cir.
2004). The Court had previously certified questions to the Supreme Court regarding the
continued vitality of the Guidelines. United States v. Penaranda, 375 F.3d 238 (2d Cir.
2004). No definitive word has been issued by the Third or Tenth Circuits.
The Circuits did not have to wait long for guidance. In United States v. Booker,125
S.Ct. 738 (2005), the Supreme Court surprised no one by applying Blakely to the United
States Sentencing Guidelines and finding the aspect of that scheme that made them
mandatory and binding on judges unconstitutional. The Court "never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory
range," Id. at 750, but did find that requiring courts to find facts that increased a defendant's statutory term one that could not stand. Id. Apprendi is not jury trial formalism,
the Court held, it is the means to protect the substance of the core Sixth Amendment
right. Id. at 752. The specific remedy the Court adopted was to strike down that portion of the statute that made the Guidelines more than advisory (18 U.S.C. § 3553(b)(1))
and that portion that called for de novo review of departures (§ 3742(e)), substituting
"unreasonableness" instead as the standard of review. Id. at 756 -765. The Guidelines
are still with us, much to the delight of behavioral scientists everywhere, and judges
must still acknowledge their presence and the fact that they represent the "basic goal"
of Congress in increasing uniformity in the sentencing system. Id. at 760. Booker does,
however, make the system more human by officially removing the regime of mathematical calculation as the ultimate device for doing the job of judging.
20051
JUDICIAL NULLIFICATION
The role for the jury this inefficient system defines emphatically
does not deprive judges of the essence of the judicial function. Justice
Scalia was clear that Blakely did not bring an end to indeterminate
sentencing or judicial fact finding in the context of a sentencing
scheme. He noted that the Sixth Amendment was not, in itself, a limitation on judicial power except to the extent that there was an assertion that judicial power could override the necessary place of the jury
within the criminal justice system. 2 10 The jury verdict sets the upper
boundary for judicial discretion; within that boundary, the judge retains the authority to make such fact-findings that he "deems important to the exercise of his sentencing discretion." 2 11 Only where such
fact-finding exposes a defendant to a longer term than is statutorily
permitted by the jury verdict will it be deemed an improper exercise of
into a realm that the people
judicial discretion and transcendence
212
have reserved for themselves.
Blakely did not eliminate judicial discretion in sentencing, nor did
it change a long tradition in which that discretion has been deemed a
critical part of a fair and just criminal justice system. What Blakely
did was simple yet powerful: it reminded courts that the people's authorization was both necessary and specific to the parameters of the
court's role in sentencing. The nature of the court's role within those
parameters remains the same complex effort to achieve the rule of law
in the service of the common good, a role that can only be conducted
through reasoned judgment and a breadth of discretion commensurate
with the moral and philosophical mandates it serves.
The Eighth Circuit has relied upon Booker variously in this early stage of its precedential life. Within about one month since Booker's pronouncement, the Circuit a) reversed two cases wherein drug quantities were set by the Court with the effect of
increasing the sentencing range: United States v. Fellers, 2005 U.S. App. LEXIS 2511
(8th Cir. 2005); United States v. Coffey, 2005 U.S. App. LEXIS 1090 (8th Cir. 2005); b)
applied the new standard of "unreasonableness:" United States v. Yahnke, 2005 U.S.
App. LEXIS 1541 (8th Cir. 2005) (finding an upward departure on criminal history reasonable); United States v. Killgo, 2005 U.S. App. LEXIS 2016 (8th Cir. 2005); United
States v. Cramer, 2005 U.S. App. LEXIS 1707 (8th Cir. 2005); and, c) found that Booker
would not apply for reasons well recognized in the Apprendi line. United States v. Fellers, 2005 U.S. App. LEXIS 2511 (8th Cir. 2005)(sentence enhanced by prior conviction
only); United States v. Vieth, 2005 U.S. APP. LEXIS 1971 (8th Cir. 2005) (sentence
determined by prior record and mandatory minimum required by statute and jury's
verdict).
210. Blakely, 124 S. Ct. at 2541.
211. Id. at 2540.
212. Id.
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What Apprendi Left Undisturbed: Discretion as the Essence of
the Judicial Function
The sentencing discretion Apprendi IBlakely left undisturbed has
a history almost as deep as the jury trial right those cases highlighted
and a purpose of equal nobility. In the time of Blackstone, judges
were constrained in their ability to fix a sentence. For Blackstone,
"the nature, extent and degree of every crime, and [those aspects that]
adjust to it its adequate and necessary penalty" was a matter almost
exclusively committed to the judgment of a legislature. 2 13 Blackstone
cautioned that the criminal law was of vital importance and that a
great deal of "care and attention" should be paid to it by the legislature "in properly forming and enforcing it." 2 14 Legislatures were to
find principles that were "permanent, uniform and universal; and always comfortable to the dictates of truth and justice, the feelings of
humanity, and the indelible rights of mankind." He extolled the English system as one "supposed to be more nearly advanced to perfection" particularly insofar as the fact that "penalties [are] less
uncertain and arbitrary." That would not be possible, he believed, if
penalties were "left as a matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support a
bill." It was best when considered by persons with a broader perspective; such power should rightly proceed in that form from the
legislature.215
The use of the legislature in this regard also gave punishment the
certainty which Blackstone hoped would more effectively prevent
crime than the severity of the ultimate punishment imposed. Mitigation of punishment was to be mitigation of the level of offense, with a
"wise legislator" rendering different degrees of the offense at considerably differed penalties to avoid the harshness of an unwarranted of an
inequity in a sentencing scheme.
213. 4 WILLIAM BLACKSTONE, COMMENTARIES, ch. 1.
214. Id.
215. Blackstone expressed an Enlightenment idea when he wrote that the right to
punish is one that is originally vested in each individual who, in the state of society,
transfers that right to a surrogate. Id. at § 8-9 It is the magistrate "who bears the
sword of justice by the consent of the whole community;" the magistrate simply functions as one exercising the will and consent of the whole community, effectively rendering the person punished someone who simply receives the punishment they contracted
for when they also joined the relevant society. In Blackstone's world, the burden fell on
the legislature to make a "public judgment" and, while invariable rules were limited in
their ability to determine with absolute precision the extent of punishment, "it must be
left to the arbitration of the legislature to inflict such penalties as are warranted by the
laws of nature and society, and such as appeared to be the best calculated to answer the
end of precaution against future offenses." Id. at ch. 13, § 3.
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JUDICIAL NULLIFICATION
But Blackstone acknowledged that the efforts of legislatures to
achieve this precision in the name of certainty were hardly successful
in all respects. He bemoaned the multiple crimes for which an individual could face death, noting at least 160 of them in the English law
of his day. He related, however, that other factors in the system operated to mitigate the extreme punishment prescribed for this wide variety of offenses:
[SIo dreadful a list, instead of diminishing, increases the
number of offenders. The injured, through compassion,
would often forbear to prosecute; juries, through compassion,
will sometimes forget their oaths, and either acquit the guilty
or mitigate the nature of the offence; and judges, through
compassion, will respite one2 16half of the convicts, and recommend them to royal mercy.
The system subtly recognized that no legislature, however effective, could anticipate the infinite varieties of life circumstances a sentencing could present. Consistent with a desire to maintain a
conscience that was clear, the system had to introduce a human agent
to particularize sentencing; onerous penalties applied in mathematical measure hardly achieved any sort of fundamental fairness.
The people wanted a limited government but, having limited that
government, they wanted it to do something. The ends that the system was to achieve were complicated and not susceptible of precise
predetermination. A system where a prescribed punishment followed
as did night the day was certain only to work the occasional gross injustice. Sentencing had to be recognized as an act that had moral
dimensions and qualities that would not permit the issuance of an outcome devoid of human judgment, compassion or, perhaps most egregious to those who knew something of the philosophy that founded it
all, the exercise of reason by the sentencing authority.
The modern era recognized this most profoundly. Professor
Greene, in his important work, 217 writes:
[Ilt is important to understand that an American jurisprudence-indeed, in Western jurisprudence generally-a fundamental bifurcation had long been emerging between the
trial and punishment stages of criminal administration. Progressive-Era penology was to further this split, though the
degree to which it did so remains one of the great gaps in our
knowledge of criminal justice administration. The phenomenon of bifurcation is a central feature of the approach we take
to the criminal law, one of those developments that tells us
216. 4 WILLIAM BLACKSTONE, COMMENTARIES, ch. 1, § 18-19.
217. Thomas A. Green, Freedom and CriminalResponsibility in the Age of Pound:
An Essay on Criminal Justice, 93 MICH. L. REv. 1915 (1995).
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great deal about who we are, or what we seek to be. The tento our jurisprudence,
dencies of mind it reflects are general
2 18
not special to the criminal law.
The bifurcation reflects a fundamental compromise. On the one
hand, we insist that our criminal law be based on a notion of free will,
that is, that a defendant be judged guilty only when his is an act of
will constituting a choice to operate outside the prescribed bounds of
the society he helped found, thereby justifying society's act of separating him from itself. On the other hand, our knowledge of social sciences and the humanities compels us to acknowledge the forces that
affect an individual's life and to reject the simplistic determinism that
the whole of the man before the court was, in fact, entirely "free" to
make the choices that he did. Professor Greene puts it this way:
[T]he criminal trial represented a first stage in the criminal
process at which the law, reflecting general social morass, insisted upon the existence of free will; this stage where the
guilty or innocence was assessed, was, as always, a morality
play that confirmed our deepest longing about who we are as
human beings. The trial took this construction despite the
fact that those found guilty were immediately turned over to
a sentencing process wherein they were often viewed largely
(by no means entirely) as victims of biological or social circumstances. At this second, "individualized" stage of the
criminal process (at least according to the ideal) information
about the convicted defendant's background, upbringing, associates and so on-matters rarely formally admissible during the trial-became relevant. Progressive-Era penology
aspired to the creation of a large bureaucracy dedicated to
gathering, sifting, and analyzing such data and to a bench
prepared to pass judgment regarding sentence case-by-case
The law of evidence
on the basis of that information ....
regarding guilt or innocence reflected one concept of human
behavior; the new penology-ideas about the appropriate treatment of offenders who have run the gauntlet of our blaming
instincts and have satisfied our need that they carry the
stigma of criminal guilt-reflected quite another. Perhaps we
should not be surprised: the paradox exists today, though a
relatively small percentage of criminal defendants opt for a
jury trial and though we now retain little of our earlier faith
convicts of the ills with which society
in our capacities to cure
2 19
has endowed them.
Greene ultimately concludes that we can continue in the rituals of
our criminal justice system to try to accommodate the "religion" of free
218.
219.
Id. at 1923.
Id. at 1925-26.
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JUDICIAL NULLIFICATION
will and the "science" of determinism" in accordance with neither as a
"pure legal abstraction nor with supposed scientific precept" but simply as a "common sense" under the guise of an exercise of the "con220
science of the community."
The court, once it has been authorized to proceed to sentencing,
must seek the common sense and conscience of which Professor
Greene speaks. The court must concern itself with both the deterministic and the free will aspects of a criminal jury trial and neither its
common sense nor its own conscience is to be disregarded when the
primary focus of decision-making turns to it at the moment of the
passing sentence.
This process cannot and does not require the court to blind itself
to the reasoned doubts it may have about the guilt of the accused. Its
proper functioning within the broad role it plays juxtaposed to the important but defined role of the jury requires eyes wide open to so criti22 1
cal a matter as that.
C.
CONCLUSION:
A
RESTORATION OF FAITH
A judge considering lingering doubts about guilt is a judge engaging in a process made wholly legitimate by the nature of the roles we
have cast for judge and jury, a process faithful to our judicial traditions and statutes, and a process at one with the philosophical underpinning of the doctrine that animates our political landscape. It is a
process that affirms the necessary moral basis the system has always
claimed in its search for the "common good." And, ultimately, it is a
process that gives depth and measure to the marvel that is the nature
of the human being.
To suppress the capacity of a judge to act upon a sense that the
defendant before the bench for sentencing may not be deserving of the
law's rebuke is to deny that singular capacity of human beings to transcend the limits of our corporeal bounds. The Enlightenment sacrificed much on the altar of reason. Knowledge could be mathematical,
owing its legitimacy to those precepts that seemed immutable and
present in the world regardless of our efforts. Knowledge could be
physical in the way that our senses flooded us with data that we could
not readily resist. And knowledge could be moral, in the sense that it
was based on reports and analyses, legitimized by our reason. But a
220. Id. at 2053.
221. Criticism of this consideration on the basis that it would be difficult for a judge
to quantify in fixing the degree of mitigation properly applied under it, is unfounded. To
what degree should a judge take into account a defendant's sick children, his cooperation with authorities, his chronic arthritis or any other factor that comes into play?
Reasoned judgment, reviewable under an abuse of discretion standard, is all we need
require, and what we presume judges do best.
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reflection on these views of knowledge shows their fundamental
limitation.
Poetry, art and the bold new insight may not be found in a quadratic equation. They do not spring from nature for us to perceive as
external phenomena and, as they are sui generis, they cannot be the
mere product of reports on past events. Such things are the product of
the transcendent form of knowledge we attribute to intuition, the process that Einstein called a "leap of consciousness" when intellect was
found to be of little use on the road to discovery. For judges, the case
may be rare, but the case may come when intuition suggests that
some chance for a transcendent knowledge of justice is available,
needing only the judge's will to achieve it. To deny the expression of
that will by an artificial and fundamentally flawed view of the role of
courts and juries disserves perhaps the highest capacity we mortals
may exercise.
This is, in no way, an invitation to return to the dogmatic world of
the pre-Enlightenment and the assertion that intuition is the voice of
God whispered only to the ears of a selected monarchial class. Instead, it is a faithful call to the egalitarian spirit that has done so
much to liberate so many. It is a recognition of the transcendent capabilities of each person, capabilities we know to be there, capabilities
that drive good judges and good people to be more than just actors on a
political stage or passive entities disconnected to the yearnings of
their fellows for a sense that a given matter has turned out "right."
Each person who dons the robe rightfully seeks a higher dignity
for themselves that can only be achieved by their freedom to give voice
to the transcendent light of intuition that my shine in a given case,
perhaps when they least expect it. To allow that light to illuminate
the weighty task they are called to perform will bring them solace and
our system a profound affirmation of legitimacy that comes from cultivating the best parts of human nature.
It might even bring the people that system serves a most unusual
sense we may have lost. It may give us back our faith: not faith in a
God light years away, but faith in the rational belief that there is more
to life than reason.