Supreme Court Dispatches

Clarence Thomas Speaks! 

In a scrappy, sloppy session, the Supreme Court hears oral argument this morning on New Jersey’s hate-crime statute in Apprendi vs. New Jersey. Highlights range from Justice Scalia’s leveling of counsel with questioning that would daunt Torquemada to Clarence Thomas’ first words of the term, at least insofar as I have heard.

Most states have enacted some form of hate-crime legislation. Some created new, free-standing crimes motivated by bias, while others allow for enhanced penalties where an existing crime is motivated by bias. New Jersey has chosen the latter scheme.

The victims in Apprendi are a black family living in an all-white neighborhood. Lest you think we live in a civilized society, their home was shot at by racist morons on four separate occasions in the five months after they moved in. The most recent racist moron—Charles Apprendi—was arrested in December 1994. He told the police he was giving the victims a message that they were not wanted in the neighborhood because they are black.

Apprendi pleaded guilty to two counts of second-degree possession of a firearm and possession of a prohibited weapon (an anti-personnel bomb). Under New Jersey’s hate-crime legislation, judges can extend sentences if they find by a preponderance of the evidence that the crime was committed “with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation, or ethnicity.” The judge determined, following Apprendi’s sentencing hearing, that his actions were motivated by racial hatred and increased the sentence from second- to first-degree crimes, significantly increasing his jail time.

There are two main themes in the appeal: One is the standard of proof (preponderance of the evidence or guilt beyond a reasonable doubt) to be used in determining whether the racist in question is eligible for a sentence enhancement; the other is whether a judge—as opposed to a jury—should be making the determination about racial bias.

Since today’s case is about hate crimes, and since, to quote Mr. Lennon, love is the answer, today’s dispatch is a musical tribute to the chief justice and the Supremes:

Can’t Hurry Love

The Due Process Clause of the 14th Amendment requires that each element of a crime be proved “beyond a reasonable doubt.” This means that jurors must be pretty darn certain before they vote for a conviction. In contrast, the “preponderance of the evidence” standard required under the New Jersey hate-crimes statute is a standard used in civil trials to mean that the facts in question are more likely true than not. This is the standard used by parents when they smell beer on your breath. Apprendi argues that it’s the wrong standard by which to double his sentence. One whiff and you’re screwed.

  Our Sixth Amendment jurisprudence requires that questions of fact be decided by juries, while questions of law are decided by judges. This means that even though it may be more efficient, faster, and cheaper to just hand over to judges the discretion to decide sentences based on the facts, the Constitution may not permit it. Juries need to sift through, weigh, and decide the facts. Or this is Apprendi’s argument.

Justice O’Connor asks Apprendi’s lawyer—Joseph O’Neill—whether the capital sentencing scheme in Arizona is unconstitutional—since the jury decides only whether it was murder and the judge finds whether aggravating and mitigating factors warrant imposing the death penalty. O’Neill argues that Arizona judges do not increase the defendant’s sentence since death is within a murderer’s maximum sentence, whereas doubling the penalty for the underlying weapons offense is impermissible. Justice Rehnquist does not accept this distinction, and Scalia avails himself of the opportunity to observe that “Sixth Amendment jurisprudence [concerning the death penalty] is all a creation of this court and has nothing to do with the Sixth Amendment.”

O’Neill gets caught in a rundown between Justices Breyer and Scalia when Breyer offers a hypothetical suggesting that if it’s unconstitutional to permit judges to increase sentences, why not just draft legislation setting out maximum sentences with judicial discretion to deviate down? Is that constitutional?

“Yes,” replies O’Neill.

Scalia can’t believe it. Are you saying you wouldn’t need a jury to decide the facts underlying a sentence enhancement?

“Um, no,” says O’Neill.

“So now you’re saying Congress can’t enact that statute?” asks Breyer.

“Yes,” says O’Neill. (Waving an arm toward Scalia as if to say, “What he said.”)

Where Did Our Love Go?

  When the justices truly dislike an oral advocate, it’s an ugly, ugly thing. Today, everything’s coming up stinkweeds. First Justice Ginsburg asks O’Neill whether the other six parts of the seven-part statute would pass constitutional muster. “They are all valid except this one,” he replies.

Scalia squeaks, “They’re all valid?”

“I am asking you to tell me why one section should go to a jury and the other shouldn’t,” says Ginsburg.

“Perhaps I didn’t explain my position properly,” O’Neill replies, “whenever there’s a question of fact, it should go to the jury.” (“What he said.”)

Rehnquist asks O’Neill about McMillan—an earlier Supreme Court decision permitting judges to enhance penalties, on a preponderance of the evidence standard, for weapons possession during certain offenses. O’Neill tries to take the position that determining whether the defendant used a gun is somehow less complicated than whether he was a racist. Stevens looks disgusted. Rehnquist asks the logical next question: What if you kept the lower evidentiary standard but let it be determined by a jury.

“That may be constitutional,” offers O’Neill.

“Why would that be OK?” snaps Scalia. “Because we’re illogical?”

When Scalia has truly had it with O’Neil, he interrupts a colloquy with Breyer to say, “I thought we were discussing the meaning of the Sixth Amendment here. Not a philosophical question of what’s worse—mandatory minimum sentences or sentence enhancements.”

“Well put, that’s exactly my point,” sighs O’Neill in gratitude.

“Maybe we can just add Justice Scalia’s question to your time then,” Rehnquist says dryly. O’Neill is so bloodied that when Ginsburg asks him again about the New Jersey statute, he literally looks up at Scalia and asks, “You want me to answer that Justice Scalia?” In a bizarre piece of Judicial Battered Wife Syndrome, O’Neill has fallen in love with his abuser.

Love Child

Lisa Gochman is the deputy attorney general in New Jersey, and she defends the hate-crimes statute by insisting that hate is not a component of the criminal’s mens rea, or intent, but rather of his motive, which is not a jury question.

Justice O’Connor drags Gochman down memory lane to her own day as a sentencing judge, when judges had the discretion to give sentences ranging from “one year to life.” Gochman concedes. Scalia asks her about this “traditional sentencing scheme” with which she now says she is not familiar. Scalia sneers that she seemed “very familiar with it when Justice O’Connor was asking about it,” and then asks whether defendants have an absolute entitlement to a lesser sentence. She tries to answer, and he cuts her off. Rehnquist tells him to “let her answer.” (Talk about the Doberman telling the pit bull not to bite.)

“She’s answering the wrong question, chief judge,” Scalia retorts, then starts in on her again. I wouldn’t be surprised to hear that Gochman had to be carried out of court today. Had she been Scalia’s daughter, brought home in a squad car with a hickey at 3 a.m., she would not have had a tougher 20 minutes.

Baby Love

Edward DuMont from the solicitor general’s office offers up his own defense of the New Jersey statute as though his mouth is stuffed full of foam packing peanuts. I catch perhaps 12 percent of what he’s saying. Which is OK, because he’s upstaged when his first question comes from Justice Thomas, who asks him to define a distinction between an element of the crime—a jury question—and a sentencing enhancement—a question for the judge. Since this is the central issue in the case, he is either asking the obvious threshold question or subtly reframing the entire issue. I am too shocked to tell. When Thomas finishes speaking, he leans back in his chair and looks somewhat shocked himself.

All around me, the sketch artists are clamoring to amend their drawings to show Thomas’ mouth open. It will be their biggest sketch of the year.  

Illustration on the Slate Table of Contents by William L. Brown.