Apres Apprendi

35 Pages Posted: 14 Nov 2000

See all articles by Nancy J. King

Nancy J. King

Vanderbilt University - Law School

Susan R. Klein

University of Texas School of Law


The Court in Apprendi v. New Jersey, ___ U.S. ___ (2000), held as a matter of due process that any fact, other than a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. In a longer forthcoming article, we attempt to answer some of the profound questions raised by the case concerning constitutional oversight of legislative authority to define what is a "crime," questions that will ripen over the years as legislatures look for ways around the rule and litigants test these legislative reactions. In this shorter essay, we turn our focus to a more immediate problem facing those laboring in the criminal justice trenches: the correction of flawed judgments after Apprendi.

Apprendi threatens thousands of completed criminal prosecutions under dozens of existing state and federal statutes, of both the "add-on" and "nested" varieties. These statutes are collected in various Appendices. Whether relief is available to those sentenced under these statutes depends in part upon whether the Apprendi claim was raised on direct appeal or in a petition for collateral relief; whether the failure to treat a sentencing fact as an element was raised as a challenge to the indictment, to jury instructions at trial, to the validity of a guilty plea, or even as a claim of ineffective assistance; and whether the claim was properly preserved by the defense. These different contexts are considered separately. Also considered is the appropriate remedy for those who successfully navigate the procedural hurdles.

Note: The following is an updated version of the paper that appeared in the Federal Sentencing Reporter.

Suggested Citation

King, Nancy J. and Klein, Susan R., Apres Apprendi. Federal Sentencing Reporter, Vol. 12, July-Aug. 2000. Available at SSRN: https://ssrn.com/abstract=244748 or http://dx.doi.org/10.2139/ssrn.244748

Nancy J. King (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
(615) 343-9836 (Phone)
(615) 322-6631 (Fax)

Susan R. Klein

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1324 (Phone)
512-471-6988 (Fax)

HOME PAGE: http://www.utexas.edu/law/faculty/sklein/

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