01-1623 U.S. v. Brown

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“This case does not involve erosion of the principle that all elements of the offense must be proved beyond a reasonable doubt or of the principle that wholesale conversion of offense elements to affirmative defenses would be an impermissible infringement of the presumption of innocence. The federal ‘three strikes’ law does not alter the existing statutory definition of bank robbery. It just allows the defendant to show that the particular robbery he committed was not very violent. There is an analogy to such partial defenses as provocation and limited mental capacity, Patterson v. New York, supra, 432 U.S at 205-06, which also enable a defendant to show that his particular conduct was less culpable than that of the average perpetrator of the offense with which he is charged. The novelty of the particular defense at issue here is not an objection of constitutional magnitude. See id. at 207; Apprendi v. New Jersey, supra, 530 U.S. at 483-84. It would be absurd to discourage states from recognizing new defenses by saying that prosecutors must negate any new defense beyond a reasonable doubt while the burden of proving old defenses may be placed on defendants.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J., Posner, J.