Apprendi’s Domain: Challenging the Court’s Link Between the Right of Jury Trial and the Reasonable-Doubt Rule
The Supreme Court’s decisions in Apprendi v. New Jersey and subsequent cases have extended the Sixth Amendment right of jury trial to some (but not all) disputed factual questions at sentencing. They require juries to resolve any non-recidivist sentencing fact that increases the ceiling on a defendant’s punishment, but do not extend this requirement to facts that decrease a defendant’s punishment or that establish mandatory minimums without raising the maximum allowable sentence.
Yet the Supreme Court has simultaneously decided that all facts subject to the Sixth Amendment jury requirement must also be proved beyond a reasonable doubt, as if they were “elements” of substantive criminal offenses. In the Court’s words, a non-recidivist fact that increases a defendant’s maximum allowable sentence must be treated as “the functional equivalent of an element of a greater offense.” This has produced a regime in which prosecutors must prove certain sentencing enhancements beyond a reasonable doubt, and allege such facts in indictments in federal prosecutions, as if they were “elements” of a substantive crime. The pro-Apprendi Justices defend this outcome by claiming that sentencing enhancements had always been regarded as “elements” of substantive crimes whenever they increased a defendant’s maximum allowable punishment. To support this historical claim, they rely on Joel Prentiss Bishop’s Criminal Procedure treatise, which said that nineteenth-century indictments were required to include “every fact which is legally essential to the punishment.”
In an upcoming paper (available here), I maintain that this statement in Bishop’s treatise is demonstrably false. Numerous nineteenth-century cases held that first-degree murder findings were not required to be charged in indictments as “elements” of a greater crime, even though they increased the maximum allowable sentence from life imprisonment to death, and even though they were to be determined by juries. These court decisions instead regarded first and second-degree murder as mere grades of punishment within the unitary offense of murder, and enforced a jury right that extended well beyond the facts that prosecutors were required to charge and prove as components of a substantive crime.
This evidence suggests that the Supreme Court’s tie-in arrangement between the jury right and the concept of “elements” subject to the reasonable-doubt rule is mistaken. And the Court’s decision to treat these rights as co-extensive has caused two serious problems with the Court’s Apprendi jurisprudence. First, it has produced a formalistic jury right that is easily evaded by legislatures and that hinges on an untenable distinction between “aggravating” and “mitigating” sentencing facts. The criminal jury’s role was traditionally understood as extending to all “questions of fact,” as opposed to “questions of law,” but the Supreme Court cannot adopt this approach because it is unwilling to countenance a corresponding expansion in the proof-beyond-a-reasonable-doubt requirement and the concept of “elements.” Second, Apprendi’s all-too-limited efforts to expand the jury right have propagated an overbroad concept of “elements” that lacks historical support and brings needless doctrinal complications to judicial efforts to broaden the right of jury trial. This article urges a different approach that uncouples the Court’s link between these two constitutional protections. Juries should decide all disputed questions of fact that aggravate or mitigate a defendant’s guilt or punishment. But courts should not require these facts to be charged by prosecutors or proved beyond a reasonable doubt whenever they increase a defendant’s maximum allowable punishment. This will give meaningful content to the right of jury trial while avoiding the historical and pragmatic problems caused by the Court’s expansive theory of “elements.”