Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas

89 Pages Posted: 17 Jan 2002

See all articles by Stephanos Bibas

Stephanos Bibas

University of Pennsylvania Law School


Last June, in Apprendi v. New Jersey, the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This rule, like most of criminal procedure law and scholarship, rests on the assumption that jury trials are the norm. In the real world, however, fewer than four percent of defendants go to trial before a jury; the vast majority plead guilty. This Article analyzes Apprendi as a case study in the shortcomings of trial-centered law and scholarship. This benign-seeming trial right will have unintended and perverse consequences in the real world of guilty pleas and Sentencing Guidelines. Apprendi's rule will deprive many defendants who plead guilty of sentencing hearings, promote prosecutorial arbitrariness, and undercut legislative guidance of unelected sentencing commissions. Instead of creating new trial rights that defendants cannot afford to exercise, the Court and scholars should instead focus on regulating guilty pleas and sentencing hearings. This Article proposes alternative solutions better adapted to the real world of guilty pleas and sentencing, such as preplea notice of sentence enhancements and procedural protections at sentencing. This Article concludes by suggesting more broadly how criminal procedure should move beyond its preoccupation with trials to improve the real world of guilty pleas and sentencing.

Keywords: Apprendi, guilty pleas, plea bargaining, sentencing, Sentencing Guidelines

JEL Classification: K14

Suggested Citation

Bibas, Stephanos, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas. Yale Law Journal, Vol. 110, P. 1097, May 2001, Available at SSRN: https://ssrn.com/abstract=292634

Stephanos Bibas (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/sbibas/

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