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

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

9 Pages Posted: 26 Aug 2009 Last revised: 30 Sep 2009

See all articles by G. Ben Cohen

G. Ben Cohen

The Promise of Justice Initiative

Bidish Sarma

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

Robert J. Smith

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute)

Date Written: 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.

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: https://ssrn.com/abstract=1462168

G. Ben Cohen

The Promise of Justice Initiative ( email )

1024 Elysian Fields Ave
New Orleans, LA 70117
United States

Bidish Sarma

University of California, 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)

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) ( email )

Cambridge, MA
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
52
rank
375,078
Abstract Views
2,810
PlumX Metrics
!

Under construction: SSRN citations will be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information