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A Looming 'Apprendi' Tsunami? 
David E. Rovella
The National Law Journal 

January 3, 2001 


A U.S. Supreme Court decision that shifted sentencing power from judges to juries in some criminal cases has triggered a cascade of appeals that have now led to pro-defendant interpretations in several federal circuits. 

Since the court's June 26 ruling in Apprendi v. New Jersey, hundreds of appeals have been filed and scores of decisions handed down interpreting the ruling. It gives juries the responsibility of deciding whether reasons exist to sentence a defendant beyond the maximum penalty allowed by the statute under which he was convicted. 

The 8th and 9th U.S. Circuit Courts of Appeal opened the door this fall to Apprendi-based appeals of sentences in drug cases. The actions widely expanded the number of prisoners who could challenge their sentences. The courts held that when the amount of an illegal drug can increase a sentence beyond a statutory maximum, Apprendi is triggered, requiring that a jury determine the weight beyond a reasonable doubt. 

But this expansion on Apprendi may be the thin end of the wedge. Legal experts warn that, now that the controversy is headed back to the high court, other precedents governing federal and state sentencing could fall. 

Two older Supreme Court rulings, one allowing judges to use a defendant's prior convictions as grounds for an increased sentence, the other allowing mandatory minimum laws, could be at risk, endangering federal and state sentencing guidelines. 

"The central premise of Apprendi is that it is wrong to convict someone of one crime, and sentence them for another," says Erwin Chemerinsky, a professor at the University of Southern California Law School. "The distinction is whether it is a sentencing factor or a separate crime the person is being punished for. Anytime someone is being punished for an additional crime, it would have to be proven beyond a reasonable doubt." 

The 5-4 holding in Apprendi derives from the Sixth Amendment's guarantee of a jury trial in criminal prosecutions. When a factor in a crime -- such as use of a firearm, the amount of drugs, or the motivation -- triggers a provision or separate law that allows a greater sentence than the maximum provided for under the original statute, a jury must now decide the matter instead of judges, who judge sentencing factors under the lower, preponderance-of-the-evidence standard. 

There have been more than 40 state rulings and 200 federal decisions involving Apprendi issues in the six months since the ruling was handed down. Judicial determinations of drug weight at sentencing have been the basis of most appeals launched since the ruling. 

"Everyone is hoping lightning will strike in their case," says 8th U.S. Circuit Judge Diana E. Murphy, chairwoman of the U.S. Sentencing Commission. She adds that a few Supreme Court justices in Apprendi predicted that the Court's reasoning in that case could apply to the guidelines that her commission promulgates. Experts say it is those 13-year old guidelines and similar schemes in the states that will be the eventual issue before the high court, and that if they are thrown out, the criminal justice system will experience a tectonic shift of power from the judge to the jury. 

"Ultimately the more important question is what the court says in the next case -- what constitutes a sentencing factor?" says Buffone, who founded the Practitioners' Advisory Group to the U.S. Sentencing Commission. "Once you have decided there is going to be rigorous enforcement of the requirement that juries find each and every element, you are going to run straight into sentencing factors," he says. 

And while defense lawyers hail these developments, a few academics warn there may be a backlash to Apprendi in the states, where legislatures may seek to avoid the ruling's constraints by rewriting their criminal statutes to include Draconian maximum sentences as cover for sentencing enhancements. 

"We think they will move in that direction," says Nancy King, a Vanderbilt University law professor who has been studying Apprendi's fallout with University of Texas School of Law Professor Susan Klein. "The next wave ... will be challenges under the constitution to redrafting of statutes to raise the maximums." 

On the morning of Dec. 22, 1994, Charles C. Apprendi, angry that a black family had moved into his neighborhood, fired several shots into their Vineland, N.J., home. The state moved to have his sentence enhanced under New Jersey's hate crime law. The judge agreed, and handed down a sentence greater than the maximum allowed for the underlying weapons charges. 

When the U.S. Supreme Court eventually ruled on the case, Justice John Paul Stevens, writing for an eclectic majority that included Justices Antonin Scalia, David Souter, Clarence Thomas and Ruth Bader Ginsburg, held that the jury should have ruled on whether Apprendi's actions were a hate crime. 

In her Apprendi dissent, U.S. Supreme Court Justice Sandra Day O'Connor wrote that the majority opinion "strongly suggests" that determinate sentencing schemes like the federal guidelines and those of many states are unconstitutional because they, too, rely on factors other than prior convictions. Despite this warning, federal prosecutors note that lower court rulings interpreting Apprendi have refused to extend its reach into the realm of sentencing guidelines. 

At first glance, prosecutors say, Apprendi has not really been a big deal for three reasons: 

Jurors only play the role of judge if the factors at issue can lead to a sentence greater than the maximum allowed under law. All other factors, notes one internal Justice Department memorandum, remain the jurisdiction of the judge at sentencing and subject to the lower preponderance-of-the-evidence standard. 

The "flood," says one New York prosecutor, is limited, since policies have been implemented requiring federal prosecutors to present evidence to the jury that buttresses every sentencing factor the jury may have to consider. "All Apprendi shows is that there are some things we are going to have to put on the jury's plate," says one New York federal prosecutor who requested anonymity. 

The vast majority of appeals being brought under Apprendi have been quickly dismissed because they don't involve sentences that extend beyond the statutory maximum. 

Samuel Buffone of the Washington, D.C., office of Boston's Ropes & Gray says the "flood" of failed appeals reflects an expectation among defense lawyers that future Apprendi-related rulings from the U.S. Supreme Court will be coming. 

"Certainly those people who have raised the issues in pending appeals will be in a much better position than those who don't," observes Buffone. "It's important for defense attorneys to be rigorous in raising Apprendi-like issues." Meanwhile, federal prosecutors have undertaken a strategy of their own, say defense lawyers, by insisting on consecutive sentences in cases where they would have otherwise run concurrent, thus skirting Apprendi altogether. 

Chemerinsky says the onslaught of appeals may continue if the U.S. Supreme Court follows U.S. District Courts in Minnesota and North Carolina and rules that Apprendi is retroactive. "There are two situations where a criminal procedure ruling has a retroactive effect: if it's basic to due process, or if it's a watershed ruling," he says, noting that Apprendi qualifies on both counts. "On the other hand, there are a lot of people in state and federal prison who have Apprendi claims. There are tons of these, and I don't think the Court will open that door." 

EXTENDING 'APPRENDI'

Sentencing law expert Nancy King says that if the U.S. Supreme Court wanted to extend Apprendi to affect sentencing guidelines, it would have to overrule two key high court precedents. One is McMillan v. Pennsylvania, a 1986 decision affirming the legality of mandatory minimums and power of judges to consider sentencing factors under the preponderance standard (a fact, Buffone notes, that allows judges to use at sentencing those counts that a defendant was acquitted of under the higher, reasonable doubt standard). The second case is Almendarez-Torres v. U.S., a 1998 case allowing judges to impose tougher sentences based on prior convictions not alleged in the original indictment. 

King says a reversal of McMillan would call into question mandatory minimum statutes, saying such a ruling is "more likely because now you have Justice Thomas for the first time declaring that he believes that McMillan should be overruled." 

If the court were to overrule McMillan, King explains, the effect would be enormous. "The guidelines are a super-complex set of mandatory minimums. Any mandatory sentence, any fact that carries a mandatory consequence for an offender's sentence, would reasonably be subject to jury determination beyond a reasonable doubt." 

But she warns that "it is dangerous to make the leap ... that automatically the guidelines would be unconstitutional," adding that the use of downward departures under the guidelines protects them from being treated as mandatory minimums. 

What is more likely, King says, is that the court would overrule Almendarez-Torres, although such a decision would have a "destructive effect since almost every state has statutes that trigger higher sentences based on the presence of ... another conviction." Such a decision would throw habitual offender and "three strikes" laws to the jury. 

A STATE END-RUN?

In a recently completed study, King and Klein identified more than 50 state and federal statutes that may be adversely affected by Apprendi, but they say the more long-lasting effects of the high court ruling would come not from the federal courts, but from the states. 

Although legislators in Mr. Apprendi's home state of New Jersey Dec. 14 approved a new hate crimes law in line with the Apprendi decision, King warns that other legislatures may seek to circumvent the high court by increasing the maximum sentences possible under their criminal laws, thus allowing for enhanced sentences delivered by judges that do not run afoul of Apprendi.

This possibility is the subject of their forthcoming law review article "Essential Elements." In the article, they propose a test for courts to determine whether a criminal statute redrawn by a legislature to skirt Apprendi contains elements necessitating jury review. 

The Apprendi court "recognized the possibility that legislatures might simply amend some of the many criminal statutes affected by this rule, in order to avoid full-blown trial-adjudication of sentence enhancing facts," they write. The test, turning on how proposed legislation would affect basic constitutional safeguards, would protect against "the very worst excesses" where legislatures "avoid due process requirements simply by manipulating the substantive criminal law," says King. 

"If you allow the legislature free range to determine its offenses and punishments," King warns, "conceivably it could avoid entirely the right to a jury trial and burden of proof by classifying most facts as a sentencing feature." 




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