Howard M. Radzely*
The Supreme Courts 1997 Term is shaping up to be another
excellent year for the states and the federal government in criminal
cases. While last term the Supreme Court proceeded cautiously in
its criminal procedure rulings, this term began with a bang. The
Court made a bold revision to its double jeopardy jurisprudence,
overruling what had been seen as a watershed opinion interpreting
the Double Jeopardy Clause. This installment of the Appellate Corner
focuses on two of the first criminal procedure rulings of the current
Term, as well as a rare en banc decision of the Second Circuit.
The Double Jeopardy Clause has proven exceptionally difficult for
the Supreme Court to interpret consistently. Indeed, then-Justice
Rehnquist was prompted to remark that "the decisional law in
the [double jeopardy] area is a veritable Sargasso Sea which could
not fail to challenge the most intrepid judicial navigator."
Albernaz v. United States, 450 U.S. 333 (1981). And, in the early
1990s, the Supreme Court twice altered the test for what constitutes
the "same offense" for double jeopardy purposes in a successive
prosecution. United States v. Dixon, 509 U.S. 688 (1993) (overruling
Grady v. Corbin, 495 U.S. 508 (1990) (modifying Blockburger v. United
States, 284 U.S. 299 (1932))). In its first major criminal procedure
ruling of the 1997 Term, the Supreme Court brought some much needed
clarity to its double jeopardy jurisprudence.
Hudson v. United States, 118 S. Ct. 488 (1997), presented the question
whether the Fifth Amendment prevents the government from criminally
prosecuting three individuals for essentially the same conduct which
had previously served as the basis for administratively imposed
penalties and occupational disbarment. In Hudson, the Office of
the Comptroller of the Currency ("OCC") had issued a "Notice
of Assessment of Civil Money Penalty" alleging that the petitioners
had violated various federal banking statutes and regulations. Although
the notice did not allege that the government had suffered any damage
as a result of the petitioners actions, the OCC assessed penalties
of up to $100,000 against each of the petitioners and also sought
to bar the petitioners from further participation in the conduct
of any insured depository institution. Eventually, each of the petitioners
agreed to pay fines of less than $20,000 and to refrain from participating
in the affairs of banking institutions without prior written approval
of federal officials.
Some three years later, the petitioners were indicted by the federal
government based on the same transactions which formed the basis
of the OCCs administrative action. Petitioners moved to dismiss
the indictment on Double Jeopardy grounds. The District Court granted
the motion to dismiss. The Court of Appeals for the Tenth Circuit
reversed, holding, on the basis of United States v. Halper, 490
U.S. 435 (1989), that the fines imposed by the OCC were not so grossly
disproportional to the damage to the government to render the sanction
"punishment" for purposes of the Double Jeopardy Clause.
In Halper, the Court held that whether a sanction constituted "punishment"
for double jeopardy purposes depended essentially on whether the
sanction "cannot fairly be said solely to serve a remedial
purpose, but rather can only be explained as serving either retributive
or deterrent purposes." Any sanction "overwhelmingly disproportionate"
to the injury to the government was thought to be explainable only
as "serving either retributive or deterrent purposes"
and thus "punishment" for double jeopardy purposes.
In Hudson the Supreme Court, in an opinion by the Chief Justice,
joined by Justices OConnor, Scalia, Kennedy and Thomas, affirmed,
but for entirely different reasons. The majority reasoned that Halper
had deviated from the Courts traditional and long-standing
double jeopardy jurisprudence in two critical respects: First, it
overlooked the antecedent question of whether the successive punishment
was "criminal." Second, the decision required an examination
of the "actual" sanction imposed, rather than evaluating
the "statute on its face." The Court observed that such
an approach required a civil case which followed a criminal prosecution
to proceed through trial to judgment in order to evaluate a double
jeopardy claim, which "flies in the face" of the Fifth
Amendments express prohibition against even attempting to
impose a successive criminal punishment. The Chief Justice concluded
that Halpers test was "ill considered" and "proved
unworkable."
The Court reiterated that whether a punishment is criminal or civil
is generally a matter of statutory construction, and that "only
the clearest proof" will suffice to override legislative intent
and transform a civil penalty into a criminal punishment. In making
this latter determination, the Court returned to the seven factor
test first enunciated in Kennedy v. Mendoza-Martinez, 372 U.S. 144
(1963), and refined in United States v. Ward, 448 U.S. 242 (1980),
and stressed that the statute must be considered only "on its
face." Applying this test, the Court determined that the OCC
monetary penalties and debarment were not criminal.
Justice Scalia, joined by Justice Thomas, concurred. Echoing his
vigorous and well-thought dissent in Department of Revenue of Mont.
v. Kurth Ranch, 511 U.S. 767 (1994), Justice Scalia contended that
the Double Jeopardy Clause did not protect against successive punishment,
but only prohibits successive prosecution. Justice Scalia joined
the majority opinion because, in his view, although the pre-Halper
law to which the Court returned "acknowledged a constitutional
prohibition of multiple punishments," it "required successive
criminal prosecutions."
In a sharply worded opinion concurring in the judgment, Justice
Stevens chided the majority for using this case "as a vehicle
for the substitution of a rather open-ended attempt to define the
concept of punishment for the portions of the opinion in Halper
that trouble the Court." Concluding that it would be difficult
to think of a double jeopardy case "easier to decide than this
one," Justice Stevens would have affirmed the judgment without
reaching the Halper issue on the grounds that, under Blockburgers
"same elements" test, the two proceedings at issue in
this case were not even arguably for the "same offense."
Thus, the subsequent criminal prosecution could not constitute a
double jeopardy violation.
In a separate opinion concurring in the judgment, Justice Souter
seemingly agreed with the Courts return to the pre-Halper
standards for identifying criminal punishment (although he disagreed
with the standard of proof), but nevertheless sided with Justice
Stevens that the Court should first apply the "same elements"
test. Justice Breyer, joined by Justice Ginsburg, likewise agreed
that Halper was (at least in part) ill-considered and that Ward
sets forth the proper approach for distinguishing criminal punishments
from civil sanctions. However, Justice Breyer concurred only in
the judgment because he disagreed with the majoritys holding
that "only the clearest proof" could convert a civil remedy
into a criminal punishment and that a court should only examine
a statute "on its face."
In Buchanan v. Angelone, 118 S. Ct. ___ (Jan. 21, 1998), the Supreme
Court considered whether the Eighth Amendment requires that a capital
jury be given an instruction on particular statutory mitigating
factors or on mitigation in general. In deciding the case, the Court
properly avoided the temptation to add to the prolix set of rules
which has developed into the Courts Eighth Amendment capital
punishment jurisprudence and did not legislate the specific text
of constitutionally permissible capital sentencing jury instructions.
Buchanan was convicted of murdering four members of his family.
After two days of testimony concerning the statutory aggravating
factor of vileness and mitigating evidence, the trial judge instructed
the sentencing jury that it could only sentence the defendant to
death if the prosecutor proved beyond a reasonable doubt that the
murder was wantonly vile. The court also explained that: "If
you find from the evidence that the Commonwealth has proved beyond
a reasonable doubt the requirements of the preceding paragraph,
then you may fix the punishment of the Defendant at death or if
you believe from all the evidence that the death penalty is not
justified, then you shall fix the punishment of the Defendant at
life imprisonment. If the Commonwealth has failed to prove beyond
a reasonable doubt the requirements of the second paragraph in this
instruction, then you shall fix the punishment of the Defendant
at life imprisonment." The trial judge refused the defendants
request for additional instructions pertaining to mitigation in
general and to specific statutory mitigators.
In another opinion written by the Chief Justice, the Court upheld
the defendants death sentence, thereby rejecting his claim
that the Eighth and Fourteenth Amendments require the court specifically
to instruct the jury on particular statutory mitigators and on mitigation
in general. The Court explained that the defendant had failed to
distinguish between the "eligibility phase" of capital
sentencingwhere the Court has stressed the need for limiting
the jurys discretionand the "selection phase"where
the Court has stressed the need for a wide-ranging investigation
into all relevant mitigating evidence. While in the "selection
phase" a sentencer must be permitted to consider all "constitutionally
relevant mitigating evidence," the Court observed that the
Eighth Amendment does not require the state to instruct the jury
on any particular means of considering that evidence, and even permits
"complete jury discretion." The Chief Justice had little
difficulty concluding that the instructions given to Buchanans
jury permitted them to give full effect to the evidence in mitigation.
Justice Scalia concurred, restating his view that the Eighth Amendment
does not require juries to consider mitigating evidence at all and
that the line between the "eligibility and selection phases"
is "incoherent and ultimately doomed to failure." Justice
Breyer, joined by Justices Stevens and Ginsburg, dissented, reasoning
primarily that there was a "reasonable likelihood" that
the jury misunderstood the above-quoted jury instruction. According
to Justice Breyer, a jury might well have believed that the sole
determinant of their sentence was whether the State proved the aggravator
and that "the extensive evidence that the defendant presented
in mitigation" could not be considered in rendering their sentence,
despite the fact that, among other things, the verdict form stated
that the jurors "considered the evidence in mitigation of the
offense." The majority briefly responded to the dissent in
a footnote, explaining that the dissents strained reading
was simply inconsistent with the ordinary meaning and structure
of the jury instruction.
One brief note about the recent Second Circuit en banc decision
in Ayala v. Speckard, 131 F.3d 62 (1997), and two other consolidated
cases. The court, in an opinion written by Judge Newman and joined
by the Chief Judge and six other judges, reversed three panel opinions
granting writs of habeas corpus. The en banc court held that the
Sixth Amendments public trial guarantee does not require a
trial judge sua sponte to consider alternatives to closure of the
courtroom during the testimony of one witness (in each case an undercover
police officer posing as a drug user) and that the prosecution in
each case had established sufficient justification to overcome the
defendants right to a public trial. The majority concluded
that Supreme Court precedent at most (if at all) requires a trial
judge sua sponte to consider alternatives to complete closure of
a hearing or criminal trial. The majority also observed that no
court prior to the three panel opinions had ever reversed a conviction
because a trial judge had failed to consider an alternative to closure
which had not been advanced by the defendant, noting that "reversal
of a criminal conviction for a trial judges failure to consider
an alternative not requested by a defendant is arguably too high
a price to pay to protect that right." Judge Parker, joined
by two judges, dissented, contending that the Sixth Amendment required
the trial court sua sponte to consider alternatives to closure of
the courtroom for even one witness.
This decision is noteworthy for at least three reasons. First,
the en banc decision resolved a split between the Second Circuit
and the New York Court of Appeals, which had earlier ruled that
the Sixth Amendment does not require a trial judge sua sponte to
consider alternatives before closing the courtroom for a limited
portion of a trial. Second, the Second Circuit now properly places
the onus on the defendant to suggest alternatives to partial closure,
and prevents the defendant from manipulating the system by not suggesting
alternatives at trial, but saving them for use on direct and collateral
appeal. Third, and somewhat disturbingly for advocates of federalism,
the Second Circuit, in reaching the merits of defendants arguments,
manipulated the "new rule" doctrine, which generally prohibits
federal courts from considering the merits of a defendants
constitutional claims in a habeas proceeding if the rule requested
by the defendant was not "dictated by precedent existing at
the time the defendants conviction became final." Teague
v. Lane, 489 U.S. 288 (1989). As the majority recognized, a federal
habeas court normally must consider and reject the States
argument that the requested rule is "new" before proceeding
to address the merits of a defendants claim. However, in Ayala,
the Second Circuit reached the merits by carving out a novel exception
to the new rule doctrine, because of what the majority termed "special
circumstances": the "considerable uncertainty" resulting
from the panel decisions if the merits were not addressed; and the
tension between the panel opinions and the recent New York Court
of Appeals decision on the identical issue. As Judge Walker explained
in an opinion concurring in the judgment, this analysis seems highly
dubious. (Judge Walker did not reach the merits of defendants
Sixth Amendment claims, but would have vacated the panel opinions
and upheld the convictions because the proposed rule was "new.")
In Caspari v. Bohlen, 510 U.S. 383 (1994), the Supreme Court clearly
held that "if the State does argue that the defendant seeks
the benefit of a new rule of constitutional law, the court must
apply Teague before considering the merits of the claim."
*Howard M. Radzely clerked for Justice Antonin Scalia and Judge
J. Michael Luttig of the Fourth Circuit. The views expressed are
solely those of Mr. Radzely.
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