Just in time for exam-writing law professors comes the Seventh Circuit’s opinion in United States v. Krieger (No. 09-1333) — a case that has just that sort of counter-intuitive, “it can’t be right” flavor that makes great testing fodder.  Among other things, the case illustrates the odd place we have ended up in our jurisprudence on procedural rights at sentencing under Apprendi v. New Jersey and Harris v. United States.

Here’s what happened.  Jennifer Krieger was prescribed fentanyl, a powerful opioid, to help her with severe back pain.  She gave some of the drug to her friend Jennifer Curry for recreational use.  Curry misused the fentanyl, as well as a variety of other substances, and died the next day.  Krieger was then indicted for distributing fentanyl with death resulting.  That’s when things got really weird. 

It turns out that the government’s main witness, the medical examiner who concluded that Curry died of fentanyl toxicity, had some serious legal problems of his own and fled the country. 

Eventually, the government returned a superseding indictment removing the “death resulting” language and charging only distribution.  Krieger pled guilty.  The pre-sentencing report recommended a sentencing range of ten to sixteen months.

At sentencing, however, the government once again pushed the “death resulting” provision (21 U.S.C. § 841(b)(1)(C)) that it had removed from the indictment.  The provision requires a minimum sentence of twenty years.  The government managed to produce the errant medical examiner for the sentencing hearing, and the judge found by a preponderance of the evidence that death had resulted from Krieger’s distribution of fentanyl.  With the 841(b)(1)(C) mandatory minimum, the judge felt compelled to sentence Krieger to twenty years, even though he believed the sentence was “too harsh.”  Indeed, the judge went so far as to indicate that he would not have found that death had resulted from fentanyl beyond a reasonable doubt; it was only because death was a “sentencing factor” (hence found using the preponderance standard) and not an element (which would be subject to the higher BRD standard) that Krieger received the concededly too harsh sentence.  Rarely is the significance of burden of persuasion made so clear.

The sentencing judge also nicely captured the “this just can’t be right” flavor of the case: “Krieger, while convicted of distribution of divers amounts of narcotics, is being sentenced for homicide.”  (7)

The Seventh Circuit nonetheless affirmed.  Although Apprendi indicates that a defendant has a right to jury fact-finding using the BRD standard when facts increase the range of punishment, Harris later specified that Apprendi only applies when a fact increases the maximum sentence, not the minimum.  As a result, the BRD standard governs when a fact increases the maximum by only a small amount (as might happen in a system of mandatory sentencing guidelines), but not necessarily when a fact increases the minimum by an enormous amount — as in Krieger, where causing death increased the minimum from zero to twenty years.  In practice, Harris means that Apprendi does not apply precisely where it could be of greatest benefit to defendants.

Interestingly, the Krieger court went out of its way to criticize the current state of the jurisprudence, echoing Justice Stevens’ concurring opinion last May in United States v. O’Brien, 130 S. Ct. 2169 (2010).  Although O’Brien was decided on statutory grounds, Stevens took advantage of the opportunity to reiterate his opposition to Harris and to highlight a provocative comment by Justice Breyer at oral argument (“Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time.”).  The comment is important because Breyer was the crucial fifth vote in the Harris majority, and his vote was premised on his continued disagreement with Apprendi.  If he now accepts Apprendi, then it would seem likely that he would reverse his position on mandatory minimums.

In any event, by pointing the finger of blame at the Supreme Court for the current state of the constitutional law, the Seventh Circuit distracts attention from the statutory analysis that was equally important to the outcome in Krieger – analysis that may actually be more troubling to me than the constitutional analysis.

Given the absence of constitutional constraint, the key question in the case was whether § 841(b)(1)(C) ought to be interpreted such that it created an element of a new offense or merely a sentencing factor.  Harris itself involved a parallel question of statutory interpretation, and the Seventh Circuit relied on the analysis in Harris, as well as in the Supreme Court’s more recent O’Brien decision, in determining that “death resulting” was merely a sentencing factor.  The court treated Harris and O’Brien as interchangeable in this regard, characterizing O’Brien as simply a “reiterat[ion]” of Harris (13).

From Harris and O’Brien, the court derived a five-factor test.  Although the court found that two factors (fairness and severity of the sentence) cut “sharply” in Krieger’s favor, the court ultimately concluded that it was

hard pressed to ignore the most important considerations: first, the clear command of the language listing “death resulting” in the “penalties” section of the statute, and second, our precedent (at least when considering drug quantity) of defining the considerations in § 841(b) as sentencing factors . . . . (18-19)

I find the analysis here troubling in at least three respects.

First, it is not clear to me why we should have a special five-factor test for deciding whether a statute creates an element or a sentencing factor.  This is a question of statutory interpretation that ought to be decided using all of the normal tools of statutory interpretation, including traditional canons of construction.  Here, in particular, the “rule of lenity” might appropriately come into play to resolve a question that Congress did not speak to in a clear manner in the statute.  (The avoidance canon might also come into play, given that the increase in Krieger’s minimum sentence was so much greater than the increases found constitutional in Harris and McMillan.)  Although O’Brien did enumerate and consider the five factors, it did not hold that these were intended to supplant conventional interpretive approaches or that they should be regarded as an exhaustive list of considerations in all “sentencing factor” determinations.  Indeed, Harris treated the factors in an even less formal, nonenumerated fashion, and expressly considered the relevance of at least one canon (the avoidance canon).  In Krieger, it seems that a loose listing of considerations from prior cases is hardening into a formal test.   

Second, even if we regard the five O’Brien factors as constituting a controlling test, I see no basis in O’Brien for treating the first two factors as “the most important considerations.”  Indeed, if anything, I think O’Brien meant to lay special emphasis on the fourth factor, the severity of the sentencing increase.  O’Brien dealt with an increase in a mininum sentence from five years to thirty years, which seems hard to distinguish from the zero to twenty in Krieger.  Here’s what the Court said about the five-to-thirty increase:

But the severity of the increase in this case counsels in favor of finding that the prohibition is an element, at least absent some clear congressional indication to the contrary.  (2178)

This important language went undiscussed in Krieger, but I would read it as creating a presumption that “death resulting” is an element, at least in cases with such enormous increases in the minimum. 

Finally, I find it merely question-begging that the “death resulting” language appears under the heading “penalties.”  (I should also note that O’Brien downplayed the significance of formal aspects of statutory structure in deciding whether something is a sentencing factor.  In this regard, O’Brien arguably marks an important departure from Harris, which ultimately laid controlling significance on formal structure.)  No one seems to think that Congress actually contemplates these procedural issues when enacting mandatory minimum statutes.  So why should “penalty” be equated with “sentencing factor” — a technical term of art invented by the Supreme Court, whose procedural significance would not be guessed at even by most lawyers, let alone laypeople and politicians?  There is certainly no “plain meaning” warrant for reading into the term “penalties” an intent for judicial fact-finding using the civil evidence standard.  Indeed, if anything, the term “penalties” might conjure for most people the image of the full panoply of procedural protections that have traditionally attended the imposition of punishment.