Constitutional Law
Aug. 16, 2000
'Apprendi' Appraisal
By Erwin Chemerinsky. Simply put, the court held that it violates due process and the Sixth Amendment to convict a person of one crime but punish him or her for another.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
In a U.S. Supreme Court term filled with blockbuster decisions, perhaps the single most important case was one that received very little publicity. In Apprendi v. New Jersey, 120 S.Ct. 2348 (June 26, 2000), the Supreme Court held that the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.
This ruling likely will require a change in trial and sentencing procedures in federal and state courts throughout the country. Moreover, there is a strong argument that the case should be applied retroactively, meaning that federal and state courts will be flooded with petitions for reconsideration of sentences. In practical effect, no decision of the term is likely to affect more cases or so dramatically change what happens in courts.
In December 1991, Charles Apprendi fired several shots into the home of an African-American family that had recently moved into a previously all-white neighborhood. Apprendi was quickly arrested and told police that he had done this "because they are black in color" and he did not want them in the neighborhood. Apprendi ultimately plead guilty to second-degree possession of a firearm for an unlawful purpose. Under New Jersey law, the penalty for this offense is a sentence of five to 10 years in prison.
Additionally, under the terms of the plea agreement, the state reserved the right to ask the judge to impose a greater sentence under the New Jersey hate-crime law. New Jersey, like many states, including California, has a statute that provides for greater penalties when it is proven that a crime is hate motivated.
New Jersey law provides for an "extended term" of imprisonment if the judge finds, by a preponderance of the evidence, that "the defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." N.J. Stat. Ann. Section 2C-44-3(e). Under the terms of the plea agreement, Apprendi reserved the right to challenge the hate-crime enhancement of his sentence as violating the U.S. Constitution.
The trial judge sentenced Apprendi to the maximum sentence of 10 years in prison for possession of a firearm for unlawful purposes. Although Apprendi recanted his statement to the police about his reasons for the shooting and said that it was not accurately described, the judge found that the evidence supported a finding "that the crime was motivated by racial bias." The judge imposed an additional two years of imprisonment based on the New Jersey hate-crime law.
The issue before the Supreme Court was whether the penalty enhancement requires proof, to a jury, beyond a reasonable doubt. More precisely, the question for the court was whether such a penalty enhancement should be regarded as a sentencing factor, which can be proved by a preponderance of the evidence to the judge, or as an element of the offense, which must be proved to a jury beyond a reasonable doubt.
In a 5-4 decision, the Supreme Court took the latter view. In an unusual division among the justices, Justice John Paul Stevens wrote the opinion for the court, which was joined by Justices Antonin Scalia, David Souter, Clarence Thomas and Ruth Bader Ginsburg.
The court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt." The court stated, quoting Jones v. United States, 526 U.S. 227 (1998) (Stevens, J., concurring): "It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."
The court explained that the constitutional guarantee of due process of law, together with the Sixth Amendment's right to trial by jury, entitle a criminal defendant to a jury determination that he or she is guilty, beyond a reasonable doubt, of every element of the crime for which he or she is convicted and sentenced.
Simply put, the court held that it violates due process and the Sixth Amendment to convict a person of one crime but punish him or her for another. Apprendi was convicted of possession of a firearm for an unlawful purpose, but he was sentenced both for this crime and for the separate offense of having acted with an impermissible hate-based motive. The court ruled that this latter factor essentially was a separate crime and it, too, must be proved to a jury beyond a reasonable doubt.
There were two dissenting opinions, by Justices Sandra Day O'Connor and Stephen Breyer. O'Connor's dissent, joined by Chief Justice William H. Rehnquist and Justices Anthony Kennedy and Breyer, said that the court's decision would be "remembered as a watershed change in constitutional law."
O'Connor argued that legislatures should have discretion in deciding what are elements of the offense and what are factors in sentencing. She lamented that "[in] one bold stroke the Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of Congress and state legislatures to define criminal offenses and the sentences that follow from convictions thereunder."
Breyer's dissenting opinion, joined by Rehnquist, argued that "compromises" are essential in allocating functions between judges and juries. Breyer argued that the majority's holding was "impractical" and unsupported by the Constitution. Breyer expressed great concern over what the court's holding would mean for the federal sentencing guidelines.
Apprendi promises to have enormous implications for trials and sentencing in federal and state courts. Any factor that provides for punishment greater than the statutory maximum for an offense, other than the fact of a prior conviction, must be proven to the jury beyond a reasonable doubt. In Apprendi, it was clear that the New Jersey hate-crime statute was used to add two more years to the sentence beyond that allowed for the crime for which Apprendi was convicted.
In other instances, such as often under the federal sentencing guidelines, it may be more difficult to determine whether the factor is used for choosing a sentence within a prescribed range for the offense or whether it is increasing the penalty beyond this. Apprendi's fundamental premise - it is wrong to convict a person of one crime and sentence him or her for another - would seem to require proof beyond a reasonable doubt to a jury for many factors used on a routine basis under the federal sentencing guidelines.
Already federal courts of appeals have begun to apply Apprendi to the federal sentencing guidelines. For example, in United States v. Sheppard, 2000 WL 988127 (8th Cir. July 18, 2000), the court held that the quantity of drugs, which is a crucial factor under the sentencing guidelines, is an element of the offense that must be beyond a reasonable doubt.
Moreover, there is the question of whether Apprendi will be applied retroactively. Under Mackey v. Illinois, 401 U.S. 667 (1971), Supreme Court decisions concerning criminal procedure have retroactive effect if they place "certain kinds of primary, private individual conduct beyond the power of the criminal law" or if they are "implicit in the concept of ordered liberty [and a] watershed rule of criminal procedure."
The court's holding in Apprendi concerns when the criminal law may punish a person for a crime; it thus goes to the question of guilt. There is a strong argument that it is a "watershed" rule; indeed, O'Connor used that very term to describe the decision. The result is that courts will be flooded with thousands of petitions from federal and state prisoners who claim to be sentenced in violation of Apprendi's holding.
By any measure, Apprendi was one of the most important decisions in a term filled with blockbusters. State and federal courts will struggle to apply it on a daily basis and further clarification from the Supreme Court is imperative.
Erwin Chemerinsky is Sydney M. Irmas professor of public interest law, legal ethics and political science at the University of Southern California Law School.
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