On certification to the Superior Court, Appellate Division, whose opinion is reported at 325 N.J. Super. 78 (1999).
The opinion of the court was delivered by: Stein, J.
Chief Justice Poritz PRESIDING
The No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA or the Act), provides for mandatory minimum sentences for convictions constituting "violent crime" as defined by that statute. We granted certification to consider whether a jury must decide if a crime is violent for purposes of NERA or if that determination can be made by the sentencing court, and whether the mandatory minimum terms imposed by NERA constitute cruel and unusual punishment under the United States and New Jersey Constitutions.
NERA, enacted in 1997, imposes a mandatory minimum prison term of 85% of the overall sentence, and a mandatory three- to five-year period of post-release parole supervision, for any first- or second-degree conviction that is found to constitute a violent crime. N.J.S.A. 2C:43-7.2(a),(c). The Act defines "violent crime" as
[a]ny crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent Crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force. [N.J.S.A. 2C:43-7.2(d)].
The Act also provides that the grounds for imposing an enhanced sentence must be "established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed." N.J.S.A. 2C:43-7.2(e).
A grand jury returned an eleven-count indictment against petitioner Martel Johnson, accusing him of robbing two customers of a check-cashing establishment at gunpoint on August 8 and August 9, 1997, respectively, and of unlawfully possessing a firearm when he was later arrested in connection with the alleged robberies. None of the counts of the indictment referred to NERA, and none charged Johnson with committing a violent crime within the meaning of NERA.
The trial court severed the charges relating to the August 9 incident and Johnson's arrest from those relating to the August 8 incident, and held separate jury trials. The facts adduced at the trial respecting the August 8 robbery indicated that Johnson approached his alleged victim on a bicycle as she exited the check-cashing store, then alighted from the bicycle, moved to within inches of the victim, and demanded her money as he aimed what appeared to be a black pistol at her. The victim gave Johnson $255. The facts adduced at the trial respecting the August 9 robbery indicated that Johnson accosted his victim in a similar manner and that he stole $265.
Approximately one week after those incidents, officers who had been alerted to the alleged robberies observed Johnson standing outside the check-cashing store, with an apparent bulge in his waistband area, and arrested him. The officers found in Johnson's possession a black, pistol-shaped BB gun, later identified by the victim of the August 8 robbery as the weapon used by Johnson during the robbery. According to a State weapons expert, Johnson's BB gun was capable of causing serious bodily injury.
The first jury considered the August 9 and arrest-scene charges and found Johnson guilty of third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b), but did not return a verdict on the counts relating to the alleged robbery. The court consequently declared a mistrial on the unresolved counts. The second jury considered the August 8 incident and found Johnson guilty of first-degree robbery, N.J.S.A. 2C:15-1, second- degree possession of a firearm with intent to use it unlawfully against a person, N.J.S.A. 2C:39:4(a), and third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b).
A defendant convicted of first-degree robbery or possession of a firearm with intent to use it against another person is subject to a mandatory imprisonment term of between one-third and one-half of the overall sentence. N.J.S.A. 2C:43-6(c). At Johnson's sentencing hearing, however, the State requested that the court impose enhanced mandatory-minimum sentences pursuant to NERA for Johnson's robbery and second-degree weapon possession convictions, on the ground that Johnson's conduct constituted violent crime within the meaning of NERA, because the facts adduced at trial clearly established that Johnson aimed the BB gun at the victim and thereby "threaten[ed]" her. The court heard no new evidence at the hearing held to determine the applicability of NERA. Accepting the State's analysis of the trial evidence, the court concluded that Johnson did, in fact, threaten the August 8 victim with the BB gun and was therefore eligible for sentencing under NERA. In making that determination, the court did not indicate whether it applied a "preponderance of the evidence" or a "beyond a reasonable doubt" standard of proof.
Applying NERA, the court sentenced Johnson to an eighteen- year term on the robbery conviction with a fifteen-year, three- month and eighteen-day parole disqualifier, and ordered a five- year term of post-release parole supervision. The court imposed concurrent sentences of ten years, with the NERA-mandated eight and one-half year parole disqualifier, on the second-degree weapon possession charge, and five years each, with two and one- half year parole disqualifiers, on the third-degree weapon possession charges.
Johnson appealed, arguing, in part, that the mandatory- minimum sentence mandated by NERA constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The Appellate Division upheld the enhanced sentence. State v. Johnson, 325 N.J. Super. 78, 88-89 (1999). We initially denied certification. 163 N.J. 12 (2000). However, we subsequently vacated that order and granted certification limited to Johnson's constitutional challenges to NERA. 163 N.J. 393 (2000). Following our grant of certification, the Supreme Court of the United States decided Apprendi v. New Jersey, __ U.S. __, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The parties then filed supplemental briefs addressing whether, in view of Apprendi, the "violent crime" factor on which Johnson's NERA sentence was based must be presented in an indictment and found by a jury beyond a reasonable doubt, in accordance with the Due Process Clause and Sixth Amendment of the United States Constitution and Article I of the New Jersey Constitution.
We first address Johnson's contention that the hearing conducted by the sentencing court to determine the applicability of NERA violated his rights to indictment and trial by jury under the U.S. Constitution and Article I of the New Jersey Constitution.
At issue here is, ultimately, the scope of the principle that the Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970). While this foundational requirement universally is regarded as one of "surpassing importance," Apprendi v. New Jersey, __ U.S. at __, 120 S. Ct. at 2355, 147 L. Ed. 2d at 447 (2000), its specific application in the context of modern, highly-structured sentencing statutes raises difficult issues for reviewing courts. The Supreme Court of the United States "has made clear beyond peradventure that Winship's due process and associated jury protections extend, to some degree, 'to determinations that [go] not to a defendant's guilt or innocence, but simply to the length of his sentence,'" id. at __, 120 S. Ct. at 2359, 147 L. Ed. 2d at 451 (quoting Almendarez-Torres v. United States, 523 U.S. 224, 251, 118 S. Ct. 1219, 1234, 140 L. Ed. 2d 350, 373 (1998) (Scalia, J., dissenting)). However, the Court has "never attempted to define precisely the constitutional limits" of the Winship doctrine. McMillan v. Pennsylvania, 477 U.S. 79, 86, 106 S. Ct. 2411, 2416, 91 L. Ed. 2d 67, 76 (1986). Mindful of the "analytical tensions" inherent in the cases guiding our analysis, State v. Apprendi, 157 N.J. 7, 51 (Stein., J., dissenting), rev'd, Apprendi v. New Jersey, supra (1999), we relate those precedents to the challenged provisions of NERA.
As will become clear, our analysis properly begins with McMillan v. Pennsylvania, supra. In that case, the United States Supreme Court upheld, by a 5-4 majority, Pennsylvania's Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982). The Pennsylvania statute provides that any person convicted of certain enumerated felonies must be sentenced to a minimum of five years' imprisonment if the sentencing judge determines, based on a preponderance of the evidence, that the person "visibly possessed a firearm" during the commission of the offense. The statute does not, however, increase the maximum sentencing range that the defendant would face. McMillan, supra, 477 U.S. at 81-84, 106 S. Ct. at 2413-15, 91 L. Ed. 2d at 73-75.
The McMillan majority characterized the "visibly possessed a firearm" element of the Pennsylvania statute as a sentencing "factor," as opposed to a conventional element of the underlying crime, id. at 89-90, 106 S. Ct. at 2418, 91 L. Ed. 2d at 78-79, and held that States may attach to crimes non-elemental "factors" that are relevant to determining punishment and that can be found by a sentencing judge by a preponderance of the evidence, so long as (1) those factors do not increase the defendant's maximum sentence, and (2) the statute does not appear to represent a legislative effort to evade the reasonable doubt requirement. Id. at 87-89, 106 S. Ct. at 2417-18, 91 L. Ed. 2d at 77-78. Applying that framework to the Pennsylvania statute, the majority held:
Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of a visible possession of a firearm. Section 9712 "ups the ante" for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan. The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners' claim that visible possession under the Pennsylvania statute is "really" an element of the offenses for which they are being punished -- that Pennsylvania has in effect defined a new set of upgraded felonies -- would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through "use of a dangerous weapon or device"), but it does not. [Id. at 87-88, 106 S. Ct. at 2417, 91 L. Ed. 2d at 77-78 (citations omitted).]
Both of the dissenting opinions in McMillan criticized the majority for, essentially, abdicating to the States the question of whether a specific fact constitutes an "element" of an offense. Id. at 93, 106 S. Ct. at 2420, 91 L. Ed. 2d at 81 (Marshall, J., dissenting); id. at 96, 106 S. Ct. at 2421, 91 L. Ed. 2d at 82 (Stevens, J., dissenting). As Justice Stevens noted,
[t]oday the Court holds that state legislatures may not only define the offense with which a criminal defendant is charged, but may also authoritatively determine that the conduct so described -- i.e., the prohibited activity which subjects the defendant to criminal sanctions -- is not an element of the crime which the Due Process Clause requires to be proved by the prosecution beyond a reasonable doubt. In my view, a state legislature may not dispense with the requirement of proof beyond a reasonable doubt for conduct that it targets for severe criminal penalties. Because the Pennsylvania statute challenged in this case describes conduct that the Pennsylvania Legislature obviously intended to prohibit, and because it mandates lengthy incarceration for the same, I believe that the conduct so described is an element of the criminal offense to which the proof beyond a reasonable doubt requirement applies.
It follows, I submit, that if a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a 'fact necessary to constitute the crime' within the meaning of our holding in In re Winship. [Id. at 96, 103, 106 S. Ct. at 2421, 2425, 91 L. Ed. 2d at 83, 87.]
The Supreme Court relied on the McMillan majority in upholding 8 U.S.C.A. § 1326 in Almendarez-Torres v. United States, supra. That statute authorizes a prison term of up to two years for any previously deported alien who returns to the United States without special permission. Subsection (b)(2) of the statute provides that "any alien described" in subsection (a) whose initial "deportation was subsequent to a conviction for commission of an aggravated felony . . . shall be fined under such title, imprisoned not more than 20 years, or both." 8 U.S.C.A. § 1326(b)(2). The question in Almendarez-Torres was whether subsection (b)(2) defines a separate crime the elements of which -- initial deportation subsequent to a conviction for commission of an aggravated felony -- would have to be proved to a jury beyond a reasonable doubt, or simply authorizes an enhanced penalty. Almendarez-Torres, supra, 523 U.S. at 226, 118 S. Ct. at 1222, 140 L. Ed. 2d at 357. The Court held, by a 5-4 vote, that Congress intended to set forth a sentencing factor in § 1326(b)(2), as opposed to a separate criminal offense, and that as such the factual predicate for finding application of the provision --a prior conviction of an aggravated felony -- need not be found by the convicting jury. Id. at 235, 118 S. Ct. at 1226, 140 L. Ed. 2d at 363. The majority began with an analysis of the statute's text, which did not specifically delegate the task of finding the recidivism element to the sentencing judge or jury. After considering "the statute's language, structure, subject matter, context, and history," id. at 228, 118 S. Ct. at 1223, 140 L. Ed. 2d at 358, the Court found it "reasonably clear" that Congress "intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense." Id. at 230, 235, 118 S. Ct. at 1224, 1226, 140 L. Ed. 2d at 359, 363. The majority then considered the constitutionality of § 1326(b)(2) as interpreted. Relying heavily on McMillan, the majority compared § 1326 with the Pennsylvania statute upheld in McMillan and found that § 1326 was similar in all pertinent respects to the McMillan statute, with the sole exception that "the circumstance that the sentencing factor at issue here (the prior conviction) triggers an increase in the maximum permissive sentence, while the sentencing factor at issue in McMillan triggered a mandatory minimum sentence." Id. at 244, 118 S. Ct. at 1231, 140 L. Ed. 2d at 369. The majority concluded, however, that the penalty increase did not render § 1326 unconstitutional because (1) the sentencing factor at issue -- recidivism -- "is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence," id. at 243-45, 118 S. Ct. at 1230-31, 140 L. Ed. 2d at 368-69; (2) the difference between a permissive maximum and a mandatory minimum sentence "does not systematically, or normally, work to the disadvantage of a criminal defendant," id. at 245, 118 S. Ct. at 1231, 140 L. Ed. 2d at 369; (3) the broad permissive sentencing range created by the statute "does not itself create significantly greater unfairness," id. at 246, 118 S. Ct. at 1232, 140 L. Ed. 2d at 369; and (4) "the remaining McMillan factors support the conclusion that Congress has the constitutional power to treat the feature before us -- prior conviction of an aggravated felony -- as a sentencing factor for this particular offense . . . ." Id. at 246, 118 S. Ct. at 1232, 140 L. Ed. 2d at 369-70.
Justice Scalia's dissent criticized the majority for over- reading the McMillan holding and for ignoring the textual ambiguity in the statute. The dissent began by recognizing that "[i]n all our prior cases bearing upon the issue . . . we confronted a criminal statute or state-court criminal ruling that unambiguously relieved the prosecution of the burden of proving a critical fact to a jury beyond a reasonable doubt." Id. at 248- 49, 118 S. Ct. at 1233, 140 L. Ed. 2d at 371 (Scalia, J., dissenting). The distinction between those statutes and § 1326, in the dissent's view, required application of the doctrine of "constitutional doubt" -- "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.'" Id. at 250, 118 S. Ct. at 1234, 140 L. Ed. 2d at 372 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S. Ct. 527, 536, 53 L. Ed. 2d 836, 849 (1909)). The "constitutional doubt" inherent in the majority's interpretation of § 1326 arose, in the dissent's view, primarily from the fact - - rejected as inconsequential by the majority -- that § 1326, unlike the statute in McMillan, increased the available sentence rather than simply limiting the sentencing court's discretion within the sentencing range. Id. at 256, 118 S. Ct. at 1236-37, 140 L. Ed. 2d at 377. The dissent concluded that
there was, until today's unnecessary resolution of the point, serious doubt whether the Constitution permits a defendant's sentencing exposure to be increased tenfold on the basis of a fact that is not charged, tried to a jury, and found beyond a reasonable doubt. If the Court wishes to abandon the doctrine of constitutional doubt, it should do so forthrightly, rather than by declaring certainty on a point that is clouded in doubt. [Id. at 260, 118 S. Ct. at 1239, 140 L. Ed. 2d at 379 (quotations omitted).]
The breadth of the Court's holding in McMillan reached its zenith in Almendarez-Torres. One year after that decision, in Jones v. United States, 526 U. S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), the Court considered the federal carjacking statute, which then read as follows:
Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and ...