Applying Apprendi to the Federal Sentencing Guidelines: You Say You Want a Revolution?

28 Pages Posted: 29 Nov 2003


In Apprendi v. New Jersey, the Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be found by a jury and by proof beyond a reasonable doubt. The Court therefore reversed Apprendi's sentence, which had been enhanced during the sentencing phase when the judge found him guilty of a hate crime. This article explores the Court's formalistic attempt to limit its holding only to situations where the enhanced sentence is "above the statutory maximum," as opposed to Justice Thomas's view that the theory should more generally require jury decisions about aggravating facts. In particular, the article analyzes arguments for applying the rationale of Apprendi to the Federal Sentencing Guidelines, which generally operate within a statutory maximum but share many of the problems Apprendi addresses. The Guidelines commit a wide range of factual decisions that may increase sentences dramatically to the sentencing phase, where these facts are decided by a judge under a less demanding standard of proof than proof beyond reasonable doubt. Using Apprendi as a microcosm of issues that have preoccupied the Court in recent debates over constitutional interpretation, the article comments on the Court's use of history in Apprendi, and then discusses the history of the Federal Sentencing Guidelines. The author, who has previously criticized the Court's positivistic approach to deciding when people convicted of crimes may claim procedural protection attaching to decisions about how long they will be incarcerated, applies that critique here, criticizing the Court's formulation of the right in question, which allows the scope of rights to be determined by legislative drafting decisions. Finally, the article explores what an alternative functional approach to the right to jury trial might look like. Using the Federal Sentencing Guidelines as a focal point, the article discusses the questions Apprendi raises about the extent to which the jury will function as a second locus of democratic input into the criminal justice system. A majority of the Court in Apprendi embraced a potentially revolutionary, idealistic view of the jury, while Justice Breyer in dissent, argued for a pragmatic approach to the criminal justice system, relying on the judgments of professional decision-makers who are not politically or democratically accountable: the professionals of the Sentencing Commission, and career sentencing judges as opposed to lay juries. The future scope of Apprendi will depend on how seriously the Court wishes to champion the role of the jury. Apprendi has already led to thousands of lower court cases trying to determine its scope, virtually none of which has found the theory of Apprendi to apply to the Guidelines. If the Court does decide to apply the theory of Apprendi to the Guidelines, that decision will be revolutionary; if not, Apprendi's theory can be easily avoided by legislatures in drafting their statutes and the purported revolution will fizzle.

Keywords: Apprendi v. New Jersey, Penalty Increases, Above the Statutory Maximum, Proof Beyond a Reasonable Doubt, Hate Crime, Federal Sentencing Guidelines, Democratic Input

JEL Classification: K14

Suggested Citation

Herman, Susan N., Applying Apprendi to the Federal Sentencing Guidelines: You Say You Want a Revolution?. Available at SSRN:

Susan N. Herman (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
(718) 780-7945 (Phone)

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