Searching for the 'Tail of the Dog': Finding 'Elements' of Crimes in the Wake of McMillan v. Pennsylvania

I. Introduction An axiom of Anglo-American jurisprudence held that whenever the statutorily permissible punishment varied according to the presence or absence of an identifiable fact (or "element") found within a statute, that fact was required to be plead in the indictment and proved by the required standard of proof, which was usually beyond a reasonable doubt. 1 This long-held notion, given constitutional protection by the United States Supreme Court in In re Winship, 2 was dealt what now appears to have been a near-fatal blow in the watershed case of McMillan v. Pennsylvania. 3 In McMillan, 4 the United States Supreme Court upheld a Pennsylvania statute that imposed a mandatory minimum sentence of five years for defendants who visibly possessed a firearm during the commission of a predicate offense. 5 The statute specifically provided that such possession "shall not be an element of the crime," that notice to the defendant of the State's intention to pursue the mandatory minimum penalty under the statute "shall not be required prior to conviction" (but was required before sentencing), and that the facts which would be necessary to sentence the defendant to the mandatory minimum could be established by a preponderance of the evidence. 6 Proving another axiom of American jurisprudence - that "not every epochal case has come in epochal trappings" 7 - McMillan prompted an abstruse, yet revolutionary, change in the way that facts bearing directly on statutorily available punishment are found in criminal cases. McMillan marked the birth of ...