How Apprendi Affects Institutional Allocations of Power

Abstract

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 essay addresses how Apprendi may affect the allocation of power among the various actors in the criminal justice system. Part I predicts that legislatures are likely to exploit a number of loopholes to evade Apprendi, either by redrafting sentencing enhancements using different terminology or by delegating even more power to judges and sentencing commissions. Part II forecasts a likely shift of power from judges to prosecutors, exploring how Apprendi undercuts judges' power to check prosecutorial charging decisions. The essay concludes with more general thoughts about the kinds of institutional-power questions judges and academics should ask in evaluating new rules of criminal procedure.

Keywords: Apprendi, guilty plea, plea bargain, sentencing, Sentencing Guidelines, criminal law, criminal procedure

JEL Classification: K14