Abstract

http://ssrn.com/abstract=1462168
 
 

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A Cold Day in Apprendi-Land: Oregon v. Ice Brings Unknown Forecast for Apprendi’s Continued Vitality in the Capital Sentencing Context


G. Ben Cohen


The Justice Center's Capital Appeals Project

Bidish Sarma


University of Califonia, Berkeley School of Law; The Justice Center's Capital Appeals Project

Robert J. Smith


University of North Carolina School of Law

April 24, 2009

Harvard Law & Policy Review, Vol. 3, April 24, 2009

Abstract:     
While it is unclear whether or how far Oregon v. Ice will strike at Apprendi’s roots, there is no doubt that the decision destabilizes Ring v. Arizona. Though the jury’s historic role included protection against political and prosecutorial overreaching, Ice leaves open the possibility that the Court will permit a defendant to be sentenced to death by a judge, based upon something less than proof beyond a reasonable doubt. If the Court intends to retreat from Apprendi in the capital context, it should overtly acknowledge that the Eighth Amendment protections created by the Court correspondingly diminish the protections guaranteed by the Sixth Amendment. If, however, the Court intends to hold firm to Apprendi in capital cases, the Court must declare that a person cannot be sentenced to death unless the jury decides - beyond a reasonable doubt - that that person is culpable enough to receive a possible death sentence.

Number of Pages in PDF File: 9

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Date posted: August 26, 2009 ; Last revised: September 30, 2009

Suggested Citation

Cohen, G. Ben and Sarma, Bidish and Smith, Robert J., A Cold Day in Apprendi-Land: Oregon v. Ice Brings Unknown Forecast for Apprendi’s Continued Vitality in the Capital Sentencing Context (April 24, 2009). Harvard Law & Policy Review, Vol. 3, April 24, 2009. Available at SSRN: http://ssrn.com/abstract=1462168

Contact Information

G. Ben Cohen
The Justice Center's Capital Appeals Project ( email )
636 Baronne St.
New Orleans, LA 70113
United States
Bidish Sarma
University of Califonia, Berkeley School of Law ( email )
391 Simon Hall
UC Berkeley
Berkeley, CA 94720
United States
The Justice Center's Capital Appeals Project ( email )
636 Baronne St.
New Orleans, LA 70113
United States
Robert J. Smith (Contact Author)
University of North Carolina School of Law ( email )
Chapel Hill, NC 27599
United States
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