Petty Offense Doctrine and Maximum Sentences Over Six Months

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Under its earlier, multi-factor approach to defining petty offenses, the Supreme Court had given close and arguably preeminent consideration to the maximum statutory penalty.1 In Baldwin v. New York, however, the Court fashioned from this criterion a bright line rule, stating: “we have concluded that no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.” 2 Robert Baldwin was charged in New York City with a pick-pocketing offense called “jostling,” punishable by a maximum of one year in prison.3 Under a New York City statute, he was not eligible for a jury trial and, over his Sixth Amendment objection, was tried and convicted before a judge instead.4 The Supreme Court, in pronouncing its bright line rule and holding that the denial of Baldwin’s request for a jury trial violated his Sixth Amendment right, relied primarily upon legislative consensus.5 Apart from New York City, the Court observed, no jurisdiction within the United States denied criminal defendants the right to jury trial for crimes with a maximum penalty exceeding six months’ imprisonment.6 The Court reasoned that this “near-uniform” legislative judgment about when the jury trial right should apply constituted “the only objective criterion by which a line could ever be drawn—on the basis of the possible penalty alone—between offenses that are and that are not regarded as ‘serious’ for purposes of trial by jury.” 7 In the messy business of line-drawing, in other words, legislative consensus provided the best and only mark.8 The Court also concluded that the six-month rule struck the appropriate balance between the accused’s interest in “interpos[ing] between himself and a possible prison term . . . the commonsense judgment of a jury of his peers,” 9 on the one hand, and the government’s interest in efficient and inexpensive adjudications, on the other hand.10

Although Baldwin established that the right to jury trial applies whenever the maximum sentence for an offense exceeds six months, the case did not address the counter-proposition: whether the right necessarily does not apply when the maximum sentence for the charged offense does not exceed six months’ imprisonment.11

The Court took up this question in Blanton v. City of North Las Vegas, where it established a “presumption” —but not a rule—that an offense with a maximum sentence of six months or less is petty for Sixth Amendment purposes and thus outside the reach of the jury trial right.12 A defendant might rebut this presumption in a “rare situation” by demonstrating “that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one.” 13 In Blanton, the defendants faced charges for driving under the influence of alcohol (DUI), punishable under Nevada law by a term of imprisonment ranging from two days to six months, a fine ranging from $200 to $1,000, a ninety-day driver’s license suspension, and a mandatory course on alcohol abuse.14 As an alternative to the prison term, the statute authorized the trial court to order offenders to perform forty-eight hours of community service in garb identifying them as DUI offenders.15 The Court held that these statutory penalties, as a package, were not sufficiently severe to rebut the petty offense presumption arising from the absence of a potential prison term exceeding six months.16 In particular, the Court concluded that the $1,000 maximum fine fell well within the range of fines typically associated with petty offenses, and that the alternate punishment of two days of community service in DUI-offender clothing did not impose a burden or level of embarrassment commensurate with a prison sentence exceeding six months.17

In the wake of Blanton, it remained unclear what kind of alternate penalties might suffice to render an offense punishable by a maximum prison sentence of six months or less (and, accordingly, subject to the presumption of pettiness) “serious” so as to trigger a right to a trial by jury under the Sixth Amendment.18 The Court reiterated after Blanton, in a case holding the jury trial right inapplicable to a federal DUI offense, that alternate, non-incarceration penalties would trigger the right only in “rare case[s].” 19 On the other side of the ledger, a more recent case acknowledged, without having to decide the issue, that a federal environmental statute providing for a fine of $50,000 for each day of an ongoing violation—and therefore capable of triggering aggregate fines into the tens of millions of dollars—imposed a punishment sufficiently serious to fall within the jury trial right.20

The other cases that bear most directly on the issue of when non-incarceration penalties trigger the jury trial right concern the imposition of large fines in criminal contempt prosecutions. Even before Baldwin, the Court had overruled its early doctrine treating contempt as a thing apart when it held that a case of “serious” contempt, like all other serious crimes, was subject to the jury trial right.21 The test the Court ultimately adopted to distinguish petty and serious cases of contempt, however, turns on the “penalty actually imposed” rather than the maximum statutory penalty.22 This distinction was necessary because varying degrees of contempt often do not have maximum penalties fixed in statute.23 In Muniz v. Hoffman, the Court held that imposing, against a labor union defendant, a $10,000 fine with no prison sentence did not render a criminal contempt prosecution serious for Sixth Amendment purposes.24 “Imprisonment and fines are intrinsically different” in terms of the deprivation they impose on a contemnor, the Court reasoned.25 While the Court refused to rule out the possibility that a fine by itself could trigger the jury trial right in some cases, it held that the $10,000 fine imposed on a union with 13,000 members was not “of such magnitude” as to make the contempt prosecution “serious.” 26 In contrast, in International Union, United Mine Workers of America v. Bagwell, also involving labor union defendants, the Court held that the much larger criminal contempt fine of $52 million did trigger the jury trial right.27 Bagwell and Muniz, although decided under the modified petty offense test that applies to criminal contempt prosecutions, together cast some light on the issue of when non-incarceration penalties cross the threshold of a “serious” offense: enormous fines like the one in Bagwell clearly do cross the threshold,28 but even substantial fines like the $10,000 sum at issue in Muniz fall beneath the line and constitutionally may be prescribed for offenses tried without a jury.29

A defendant charged with multiple counts does not have a right to a jury trial based on the aggregated maximum potential sentence on all counts combined; rather, the maximum statutory penalty for each individual offense controls the analysis.30 In Lewis v. United States, the defendant faced two counts of obstructing the mail, each punishable by a maximum prison term of six months.31 The Supreme Court rejected the defendant’s argument that the total potential prison term of one year triggered the jury trial right.32 The Court reasoned that the legislative determination of the seriousness of an offense, as reflected in the maximum authorized sentence, governs the applicability of the jury trial right.33 The maximum potential penalty faced by particular defendants based on the circumstances of their individual prosecutions is not relevant to that legislative judgment and thus not relevant to the Sixth Amendment question, the Court determined.34 In other words, the constitutional issue of whether the jury trial right applies turns on the statutorily-defined offense, not on the case against the defendant.35 In reaching this holding, the Lewis Court distinguished its earlier opinion in Codispoti v. Pennsylvania—which had held that the jury trial right applied where the total sentence imposed for multiple criminal contempt violations exceeded six months (even though none of the individual violations triggered a sentence over six months)36 —on the ground that the contempts at issue there did not have a statutory maximum penalty and therefore did not reveal a legislative judgment as to their seriousness.37

1: See Duncan v. Louisiana, 391 U.S. 145, 159–60 (1968) ( “[T]he penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment.” ); District of Columbia v. Clawans, 300 U.S. 617, 624–25 (1937) (construing the question before it as “whether the penalty, which may be imposed for the present offense, of ninety days in a common jail, is sufficient to bring it within the class of major offenses, for the trial of which a jury may be demanded” ).
2: 399 U.S. 66, 69 (1970) (plurality opinion). A plurality of only three Justices supported the bright-line rule, but because two additional Justices concurred in the judgment on a much broader ground (that the Sixth Amendment requires a jury trial for all crimes, petty or not), the plurality opinion set the petty offense doctrine. See Blanton v. City of North Las Vegas, 489 U.S. 538, 542 (1989) ( “[O]ur decision in Baldwin established that a defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months.” ).
3: Baldwin, 399 U.S. at 67.
4: Id. at 67–68.
5: Id. at 70–71.
6: Id. at 71–72 ( “In the entire Nation, New York City alone denies an accused the right to interpose between himself and a possible prison term of over six months, the commonsense judgment of a jury of his peers.” ).
7: Id. at 72–73.
8: Id.
9: Id. at 72.
10: Id. at 73–74 ( “Where the accused cannot possibly face more than six months’ imprisonment, we have held that the[ ] disadvantages [of criminal conviction without jury trial], onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications.” ).
11: Id. at 69 n.6 ( “In this case, we decide only that a potential sentence in excess of six months’ imprisonment is sufficiently severe by itself to take the offense out of the category of ‘petty.’” ).
12: 489 U.S. 538, 543 (1989) ( “Although we did not hold in Baldwin that an offense carrying a maximum prison term of six months or less automatically qualifies as a ‘petty’ offense, and decline to do so today, we do find it appropriate to presume for purposes of the Sixth Amendment that society views such an offense as ‘petty.’” ).
13: Id.
14: Id. at 539–40.
15: Id. at 539.
16: Id. at 544–45.
17: Id. at 544.
18: See id. at 543 (calling the standard for rebutting the petty offense presumption “somewhat imprecise” but indicating that it “should ensure the availability of a jury trial in the rare situation where a legislature” makes a serious offense punishable by “onerous penalties” other than a prison term exceeding six months).
19: United States v. Nachtigal, 507 U.S. 1, 5 (1993).
20: Southern Union Co. v. United States, 567 U.S. 343, 352 (2012) ( “The [statute] subjects Southern Union to a maximum fine of $50,000 for each day of violation. The Government does not deny that, in light of the seriousness of that punishment, the company was properly accorded a jury trial.” ) (citation omitted). The corporate defendant faced a maximum potential fine of $38.1 million for a 762-day violation and was sentenced to pay a total of $18 million, id. at 347, but the Supreme Court held the sentence unconstitutional because a judge rather than a jury determined the duration of the violation. Id. at 352; Amdt6.4.3.7 Other Applications of Apprendi.
21: Bloom v. Illinois, 391 U.S. 194, 208 (1968) ( “If the right to jury trial is a fundamental matter in other criminal cases, which we think it is, it must also be extended to criminal contempt cases.” ); id. at 209 ( “[M]any contempts are not serious crimes but petty offenses not within the jury trial provisions of the Constitution. When a serious contempt is at issue, considerations of efficiency must give way . . . .” ).
22: Muniz v. Hoffman, 422 U.S. 454, 476 (1975) ( “[C]riminal contempt, in and of itself and without regard to the punishment imposed, is not a serious offense absent legislative declaration to the contrary . . . but imprisonment for longer than six months is constitutionally impermissible unless the contemnor has been given the opportunity for a jury trial.” ); Taylor v. Hayes, 418 U.S. 488, 495 (1974) ( “[O]ur cases hold that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute.” ).
23: Frank v. United States, 395 U.S. 147, 149 (1969) ( “[I]n prosecutions for criminal contempt where no maximum penalty is authorized, the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense.” ); Bloom, 391 U.S. at 211.
24: 422 U.S. 454, 476–77 (1975).
25: Id. at 477.
26: Id.
27: 512 U.S. 821, 837 n.5 ( “We need not answer today the difficult question where the line between petty and serious contempt fines should be drawn, since a $52 million fine unquestionably is a serious contempt sanction.” ). The Bagwell Court also addressed the antecedent question of whether a contempt penalty is civil or criminal in nature. Id. at 836–38 (determining the criminal or civil nature of a contempt order in light of “the character of the entire decree” and holding that the $52 million contempt fine was criminal because the defendants had no opportunity to purge the fine once imposed, the underlying misconduct occurred outside of the court’s presence and consisted of “widespread” violations of a “complex injunction” resembling an “entire code of conduct,” and because the fine itself was so severe). The Court has most often taken up the question of whether a proceeding is civil or criminal in the due process context. See, e.g., Hicks v. Feiock, 485 U.S. 624, 637 (1988) (considering whether a contempt proceeding was criminal in nature so as to trigger the due process requirement that the government carry the burden of proof beyond a reasonable doubt).
28: See Bagwell, 512 U.S. at 837 n.5; see also Southern Union Co. v. United States, 567 U.S. 343, 351 (2012) (stating that “not all fines are insubstantial, and not all offenses punishable by fines are petty” and citing as authority federal court judgments imposing criminal fines of $400 million, $448.5 million, and $1.195 billion).
29: Muniz, 422 U.S. at 476–77; United States v. Nachtigal, 507 U.S. 1, 5 (1993) (holding that a maximum $5,000 fine and the possibility of certain “discretionary [sentencing] conditions,” such as the payment of restitution or obligatory participation in a program at a community correctional facility, did not render a DUI offense with a maximum prison term of six months “serious” ).
30: Lewis v. United States, 518 U.S. 322, 330 (1996) ( “Where the offenses charged are petty, and the deprivation of liberty exceeds six months only as a result of the aggregation of charges, the jury trial right does not apply.” ).
31: Id. at 324.
32: Id. at 327.
33: Id. ( “[W]e determine whether an offense is serious by looking to the judgment of the legislature, primarily as expressed in the maximum authorized term of imprisonment.” ).
34: Id. ( “The fact that the petitioner was charged with two counts of a petty offense does not revise the legislative judgment as to the gravity of that particular offense . . . .” ); id. at 328 ( “Where we have a judgment by the legislature that an offense is “petty,” we do not look to the potential prison term faced by a particular defendant who is charged with more than one such petty offense.” ) (emphasis in original).
35: Id. at 328.
36: 418 U.S. 506, 509, 517 (1974) ( “We find unavailing respondent’s . . . argument that petitioners’ contempts were separate offenses and that, because no more than a six months’ sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury.” ).
37: Lewis, 518 U.S. at 328 ( “In such a situation, where the legislature has not specified a maximum penalty, courts use the severity of the penalty actually imposed as the measure of the character of the particular offense.” ).