Unanticipated Consquences of Turning Sentencing Factors into Offense Elements: The Apprendi Debate

Abstract

The Supreme Court's recent opinion in Apprendi v. New Jersey requires the government to prove sentencing factors to a jury beyond a reasonable doubt if such factors increase the maximum potential penalty. In effect, such sentencing factors will be treated as elements of the offense. This article questions a central assumption implicit in Apprendi's own argument and in the Supreme Court's decision: that proving sentencing factors to a jury at trial will benefit defendants. The article highlights a number of unintended consequences of treating sentencing factors as offense elements. Defendants will find themselves in the unenviable position of having to choose between maintaining their innocence and mitigating guilt at trial. Bifurcating fact-finding is not a workable or principled solution to this dilemma. Plea bargaining will become more complicated as "fact bargaining" joins "charge bargaining," undermining the fundamental goal of proportionality. Legislatures may be tempted to draft around the new constitutional rule by transforming the flexibility in sentencing from a process of ratcheting up to ratcheting down. Instead of allowing aggravating circumstances to increase punishment, the legislature might set the initial penalty for an offense at a higher level and allow only downward adjustments through opportunities to mitigate. But insofar as this strategy systematically shifts burdens of proof onto defendants, it will invite further constitutional challenges and hence more uncertainty.

Keywords: criminal law, sentencing, apprendi