The commerce power and criminal punishment: Presumption of constitutionality or presumption of innocence?

The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather than providing for case-by-case proof to a jury. As the Court's decision last Term in Gonzales v. Raich illustrates, such findings-based statutes are subject to a presumption of constitutionality and will be sustained so long as the underlying legislative judgment was rational. The conflict between legislative findings and the constitutional requirements for criminal prosecutions is ignored in the vast literature on the commerce power, which focuses overwhelmingly on whether Congress can reach certain activities (and whether courts can or should impose meaningful limits on Congress's legislative authority) but pays scant attention to how Congress legislates. Commentators assume that since Congress's power to act on the basis of its own findings regarding the connection between the regulated conduct and interstate commerce is well established in the civil sphere, it must be equally clear in the criminal context. As this Article demonstrates, however, findings-based statutes generate unique costs in criminal prosecutions by depriving defendants of procedural protections designed to make it harder for the government to send an individual to jail than to regulate her conduct by civil means. The common justifications for leaving questions of commerce largely to Congress's discretion, moreover, ring hollow when considered in the context of criminal law. Given the considerable costs of findings-based criminal prohibitions and the absence of any countervailing benefits, I argue that legislative findings should not serve as the basis for criminal punishment. Instead, courts should require case-by-case proof of the facts that demonstrate the necessary connection between the defendant's conduct and interstate commerce.