The Puzzling Return of Jury Sentencing: Misgivings About Apprendi

Abstract

The Supreme Court's decision in Apprendi v. New Jersey reinserted the jury into the sentencing process by requiring juries to find any facts that increase the defendant's sentence above the statutory maximum. The case is puzzling because the trend for over 200 years has to been to limit, not increase, the jury's involvement in sentencing. Many commentators have nonetheless praised Apprendi because it promises to undermine the existing sentencing system and reduce the sentences of hundreds, if not thousands, of defendants. This Article suggests that Apprendi has a hidden cost: it will result in more convictions, even as it reduces the average sentence. This is because Apprendi, like jury sentencing more generally, presents the jury with multiple "guilty" options from which to choose. Modern behavioral economics shows that when decisionmakers are given such additional choices, the tendency is to increase the overall selection of that category of choice. The result is that after Apprendi, more defendants will be convicted at trial. This Article then considers whether the trade-off created by Apprendi - more convictions for lower sentences - might make sense. The general rejection of jury sentencing, which promises the exact same trade-off, suggests that the answer is no. Jury sentencing, however, has expanded in one area - capital punishment. Thus, this Article examines whether Apprendi might be analogized to the capital sentencing decisions, but concludes that it is difficult, although not impossible, to justify Apprendi's trade-off.

Keywords: Apprendi, jury sentencing, behavioral law and economics, lesser included offenses, death penalty

JEL Classification: K14, K41, K42, D80