Surviving Apprendi: a Procedural Ideal Meets the Real World of Determinate Sentencing
| Citation | Vol. 72 No. 1 Pg. 44-57 |
| Pages | 44-57 |
| Publication year | 2003 |
72 J. Kan. Bar Assn. 1, 44-57 (2003). Surviving Apprendi: A Procedural Ideal Meets the Real World of Determinate Sentencing
72 J. Kan. Bar Assn. 1, 44-57 (2003)
I. Introduction
The United States Supreme Court decided Apprendi v. New Jersey[1] on June 26, 2000. Simply put, it required that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt.2 Hearing this, constitutional law professors gasped. Prosecutors moaned. Criminal defense attorneys held their breath, then pinched themselves - hard - to see if it was real, or only a very pleasant if unrealistic dream. And that was just the reaction in Topeka.
The nationwide cacophony that followed whipped criminal law into what can only be described as an Apprendi frenzy. Federal courts scrambled to apply Apprendi's edicts to the federal sentencing guidelines. Scholars wrote articles, which in the beginning were little more than speculation about the effects of the Apprendi decision, and tagged them with clever if unsettling titles such as "A Looming 'Apprendi' tsunami?"[3] and "Comprendez Apprendi?"[4] State courts, too, found themselves swept up in the tide as litigants in criminal cases began to argue Apprendi.
Within three months of the Apprendi decision, a Kansas appellate court issued its first published opinion applying the case to the Kansas Sentencing Guidelines Act (KSGA). In the two years that followed, the Kansas appellate courts developed a comprehensive body of law, which responded to and interpreted Apprendi. In 2002, the Kansas legislature jumped into the act, amending the KSGA to incorporate changes to sentencing procedure required by Apprendi as interpreted by the Kansas courts.
This article serves as a road map to Kansas appellate decisions involving Apprendi. The effect of Apprendi on the federal sentencing guidelines and other states' sentencing schemes, while equally fascinating, is a task for another day.
II. Apprendi and its Predecessors
A. Before Apprendi: McMillan, Almendarez-Torres, and Jones
The U.S. Supreme Court's decision in Apprendi was built upon a broad base of its earlier Sixth and 14th Amendment cases. In the interest of keeping things (relatively) simple, only three of the more recent decisions receive brief mention here.
In McMillan v. Pennsylvania[5] the Court considered a statute which fixed a mandatory minimum prison term for a defendant who was found to have visibly possessed a firearm during the commission of certain crimes.[6] McMillan argued that the fact that he possessed a firearm must be proven beyond a reasonable doubt before it could be used to alter his sentence.[7] The Court disagreed, reasoning that the mandatory minimum neither altered the maximum penalty for the underlying crime nor created a separate offense, but merely limited the court's discretion in choosing a penalty within the statutory range. Because the mandatory minimum did not increase the penalty allowed by law, the fact supporting imposition of the mandatory minimum did not need to be proven beyond a reasonable doubt.[8] McMillan was the first case in which the Court used the term "sentencing factor" to refer to a fact not found by the jury but one which could impact the sentence imposed by the judge.[9]
In Almendarez-Torres v. United States[10] the United States Supreme Court confronted a statute, which criminalized a deported alien's return to the United States without permission. A subsection of the same statute authorized a longer prison term if the alien was deported for an aggravated felony.[11] The Court held that the existence of a prior aggravated felony was a sentencing factor - not an element of the crime - and need not be charged in the indictment in order to be used to support an increased sentence.[12] Key to the decision in Almendarez-Torres was the Court's observation that the fact of a prior conviction, or recidivism, "is a traditional, if not the most traditional, basis for a sentencing court's increase in an offender's sentence."[13]
Finally, in Jones v. United States[14] at issue was a federal carjacking statute which provided three different penalties depending on whether death, serious bodily injury, or some lesser injury resulted from the carjacking.[15] The United States Supreme Court held that the statute established three separate offenses, and the level of injury was an element of each crime which must be charged in the indictment and proven to a jury beyond a reasonable doubt.[16]
B. Apprendi v. New Jersey
Against this backdrop the Court was introduced to Charles Apprendi. Apprendi fired shots into the home of an African American family. After his arrest he admitted that he was the shooter and stated that though he did not know the family personally, he shot at their house because he did not want them in the neighborhood based on their race. He later retracted his statement about the motivation for the shooting.[17]
Apprendi pled guilty to two counts of second-degree possession of a firearm and unlawful possession of an antipersonnel bomb. The State reserved the right to request an enhanced sentence on one of the firearm counts based on a state hate crime statute. Apprendi reserved the right to challenge the enhancement.[18]
The trial court accepted the pleas and held an evidentiary hearing on Apprendi's purpose in committing the shooting. Apprendi presented extensive evidence of his lack of reputation for racial bias. The State presented evidence of Apprendi's statement to police the night he was arrested. The trial court found by a preponderance of the evidence that the crime was motivated by racial bias and was committed with a purpose to intimidate. The trial court applied the New Jersey hate crime statute and imposed an enhanced sentence of 12 years' imprisonment on one of the firearm counts and shorter concurrent terms on the other two charges.[19]
Apprendi appealed, arguing that federal due process guarantees required the finding of bias underlying the hate crime enhancement to be proven to a jury beyond a reasonable doubt. The New Jersey Supreme Court affirmed.[20] The U.S. Supreme Court granted certiorari.[21]
The majority opinion, written by Justice Stevens, raised the curtain on his analysis with a flourish:
"At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without 'due process of law,' Amdt. 14, and the guarantee that '[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,' Amdt. 6. Taken together, these rights indisputably entitle a criminal defendant to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'"[22]
The majority traced the roots of these rights beyond the American colonial period to common law England, noting along the way a marked absence of anything resembling a "sentence enhancement." Historical criminal law, observed the Court, made little room for the trial court's discretion at sentencing: "The substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense. The judge was meant to simply impose the sentence."[23] In an important caveat, however, the Court made clear that "nothing in this history suggests that it is impermissible for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute."[24]
Considering the enhancement statute at hand within the broader historical context, the Court remarked:
"The historic link between verdict and judgment and the consistent limitation on judges' discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone."[25]
That said, Justice Stevens penned a conclusion fit for a cross-stitch pillow: "Other 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 proved beyond a reasonable doubt."[26]
The Court applied this standard and found New Jersey's hate crime statute lacking because it allowed for the imposition of a sentence greater than that authorized by law triggered by certain fact findings made by the trial court by a preponderance of the evidence. Apprendi's sentence was vacated and remanded for resentencing.[27]
The concurring and dissenting opinions were lively and varied. Justice Scalia separately concurred for the purpose of criticizing Justice Breyer's dissent.[28] Justice Thomas, joined in part by Justice Scalia, concurred but espoused the more sweeping view that any fact which may be used to impose or increase punishment is an element of the crime and must be proven to a jury beyond a reasonable doubt, including the fact of a prior conviction, and including any fact which triggers a mandatory minimum.[29]
Justice O'Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer, dissented.[30] Justice O'Connor suggested that the majority's holding had no basis in history or case law and would wreak havoc upon state and federal determinate sentencing schemes.[31] Justice Breyer, joined by Chief Justice Rehnquist, filed a separate dissent in which he decried the majority's holding as promoting "a procedural ideal"...
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