For well over a century the United States Supreme Court has debated who has final authority to define what is a "crime" for purposes of applying the procedural protections guaranteed by the Constitution in criminal cases. After numerous shifts back and forth from judicial to legislative supremacy,' the Court has settled upon a multi-factor analysis for policing the criminal-civil divide, an analysis that permits courts to override legislative intent to define an action as civil in the rare case where the action waddles and quacks like a crime. This tug-of-war over the finality of legislative labels in defining crime and punishment is far from over. For just as labeling an action "civil" may allow the government to circumvent criminal procedure entirely, so labeling a fact an "affirmative defense" or a "sentencing factor" instead of an "element" of an offense may allow the government to bypass, for that particular fact, certain procedures that the Constitution requires in the adjudication of offense elements. These procedural guarantees, namely, proof beyond a reasonable doubt, inclusion in the indictment, and trial by jury, need not be provided for non-elements.
In its recent decision in Apprendi v. New Jersey, the Court has put to rest one aspect of this ongoing battle about the significance of labels, by declaring that any fact-other than a prior conviction-that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. But even as Apprendi settles one dispute, it prompts others. The Apprendi Court also recognized the possibility that in order to avoid the adjudication of sentence-enhancing facts in a full-blown trial, legislatures might simply amend some of the many criminal statutes affected by this rule. Suggesting that efforts to avoid the consequences of the rule in Apprendi by redrafting criminal statutes will be subject to "constitutional scrutiny," the Court has invited litigation over the constitutionality of substantive criminal law. Not surprisingly, it has offered few clues about the shape of that constitutional scrutiny. This Article takes up that challenge. Drawing guidance from the rich and varied history and commentary of constitutional regulation of the substantive criminal law under many different constitutional provisions, we develop here a modest multi-factor test to help courts identify those few statutes that contain facts, designated as "non-elements" by a legislature, that nonetheless quack like elements under the Constitution.
Nancy J. King and Susan R. Klein,
54 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss4/1