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

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.