Apprendi's Perverse Effects on Guilty Pleas Under the Guidelines

Abstract

This essay discusses how the Supreme Court's decision in Apprendi v. New Jersey deprives defendants of sentencing hearings by forcing them to allocute to sentence-enhancement issues when they plead guilty. Apprendi's problem is that it is designed for jury trials, even though the overwhelming proportion of cases today are resolved by guilty plea. The essay goes on to discuss alternative rules better suited to guilty-plea cases. For example, courts could develop a due process of sentencing, which would guarantee defendants opportunities to confront and cross-examine witnesses and to use compulsory process at sentencing. Perhaps the better solution is for judges and prosecutors to exercise the discretion they still have to counteract Apprendi's perverse effects. Judges, for example, can do so by refusing to penalize defendants who go to trial solely to preserve hearing rights that they had before Apprendi.

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

JEL Classification: K14