Apprendi in the states: the virtues of federalism as a structural limit on errors.

• Author: Bibas, Stephanos

In Apprendi v. New Jersey, the U.S. Supreme Court held that any fact (except recidivism) that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. (1) This federal constitutional ruling disrupted not only the federal courts, but also the far larger number of criminal cases handled in state courts. In addition, state courts are free not only to interpret Apprendi, but to find broader Apprendi-type rights under their own state constitutions. Thus, one might have expected Apprendi to unleash a variety of creative interpretations in state court, many of which could have gone beyond the federal constitutional minimum.

The big surprise of the last three years is that there is no surprise. State courts have by and large interpreted Apprendi very cautiously and narrowly. Only in select areas have a few courts interpreted their own constitutions more broadly than the Federal Constitution. Evidently, the Apprendi firecracker has fizzled out at the state level just as it has at the federal level. (2) As I will argue, this welcome development shows the virtues of federalism as a structural limit on errors. As state judges saw Apprendi's novelty, disruption, and errors, they wisely braked and confined its scope.

While remaining faithful to the Supreme Court's supremacy, they brought their own wisdom to bear in limiting Apprendi. They thus avoided compounding its errors, showing how federalism uses the practical wisdom of many actors in a decentralized system. The state courts are far from lock-step implementers of Supreme Court decisions or mindless bastions of conservatism; they are truly valuable partners in our federalist system of criminal procedure.

1. INDICTMENTS

   The first area that Apprendi could have affected is the right to indictment. Apprendi's logic (though not its holding) required federal indictments to charge all facts that raise maximum sentences. (3) This rule, however, did not bind state courts because the Grand Jury Clause of the Fifth Amendment has not been incorporated against the states. (4) Based on Apprendi, a few state courts have required state indictments to allege the facts and statutory subsections supporting penalty enhancements. For example, the Supreme Court of North Carolina has required prosecutors to plead firearm enhancements in their indictments. (5) Likewise, the Supreme Court of Alaska has required a state indictment to allege that a burglary took place at night in an occupied dwelling. (6)

   More courts, however, have held that state indictments need not charge the facts and statutory subsections that support enhancements. The Alabama Court of Criminal Appeals has held that state indictments need not charge enhancements for selling drugs near schools or housing projects. (7) The New Mexico Court of Appeals has held that Apprendi does not require state indictments to charge firearm enhancements. That court declined to apply complex federal pleading practices to New Mexico's simpler pleading system, and it expressed a preference for construing Apprendi narrowly. (8) The Rhode Island Supreme Court has held that a state indictment need not give notice of a sentence enhancement for aggravated battery in the course of a murder. (9) Because the Grand Jury Clause does not bind the states, the court reasoned, state prosecutors are free to notify defendants of enhancements in other ways. (10) For instance, prosecutors can give notice of enhancements in bills of particulars. (11) Finally, courts in Georgia, Oregon, and Tennessee have held that indictments need not charge aggravating factors that trigger death sentences. (12)

2. GUILTY PLEAS

   Apprendi issues can also arise at guilty-plea hearings. Many defendants who pleaded guilty before Apprendi have later tried to raise Apprendi claims. Unfortunately for them, state courts have routinely rejected these claims. They regularly hold that entry of a plea agreement and guilty plea waives Apprendi claims. Their reasoning makes sense: in bargaining away their rights to trial and confessing guilt, defendants who plead guilty waive their rights to jury determinations beyond a reasonable doubt. (13) The only exception to this rule is in Kansas. Kansas courts have held the entire system of judicially administered presumptive sentencing guidelines invalid on its face. Even a defendant's agreement to a judicial upward departure as part of a plea bargain cannot waive this objection. (14)

   HI. TRIALS

   Apprendi also portended important changes in trial procedure. One danger of allowing juries to find aggravating facts is possible prejudice to their determinations of guilt. In response, some Justices in the Apprendi majority suggested that trial courts bifurcate trials to keep juries from learning of aggravators until after they convict of the base crime. (15) Some state courts have followed this suggestion and approved bifurcated trials. (16) Furthermore, Apprendi also requires specific findings of aggravating facts, and courts have grappled with how to ensure these findings. State courts are split on whether Apprendi requires judges to submit special verdict forms listing aggravating facts to juries. (17) Where Apprendi requires juries to find an aggravating fact (such as that a park was run by the government), judges may not instruct juries to take judicial notice of that fact. (18)

4. SENTENCING

   Apprendi's main impact, of course, has been on sentencing. State courts have held that judges can continue to make many of the determinations that they have traditionally made at sentencing. For example, the courts have agreed that judges may find facts that trigger consecutive rather than concurrent sentences. They reason that because the ultimate sentence does not exceed the combined statutory maxima, there is no Apprendi problem. (19) The Illinois courts briefly took a contrary stance and held that Apprendi required juries to make the consecutive-sentence determination, but they have since overruled that approach. (20)

   Another area in which judges can find facts involves sex-offender registration. So-called Megan's Laws require convicted sex offenders to register with the police. (21) Some of these laws are triggered by a judge's finding that an offender committed an offense with a sexual purpose. (22) Is this a factual finding that triggers a sentence enhancement and thus requires a finding by a jury beyond a reasonable doubt? The courts that have considered the issue have rejected this claim. They uniformly agree that sex-offender registration is a regulatory measure, not a punitive one, and so is not within Apprendi's scope. Registration is a collateral consequence of conviction and not punishment for an additional, aggravated crime. (23) This approach is in keeping with the Supreme Court's treatment of sex-offender civil commitment laws as regulatory civil measures rather than punitive criminal ones. (24) By the same reasoning, involuntary commitment of incompetent defendants is regulatory, not punitive, and so not subject to Apprendi. (25)

   In some states, conviction of a sex offense automatically triggers an extended term of post-release supervision. Judges may impose these extended terms, notwithstanding Apprendi, because the extensions are automatic and do not depend on any additional findings of fact. (26)

   Juvenile-court judges often find by a preponderance of the evidence facts that trigger transfer to adult court, where the possible penalties are much higher. Defendants have raised Apprendi challenges, claiming that juries should find these facts beyond a reasonable doubt. State courts routinely reject these challenges. They reason that determining whether a child is amenable to juvenile-court processes requires a complex assessment of the child's age, maturity, environment, past behavior, and likely future behavior. (27) This forward-looking assessment of the prospects for rehabilitation is complex and laden with discretion, unlike the finding of historical facts about a particular crime. (28) In addition, the transfer finding is a purely jurisdictional threshold issue, and a jury will ultimately have to find each element beyond a reasonable doubt before sentencing. (29)

   Apprendi carved out an exception to its rule for enhancements based on prior convictions. (30) It preserved the holding of Almendarez-Torres, which allowed judges to find prior convictions that trigger recidivism enhancements. (31)...