Solving the Apprendi Puzzle

74 Pages Posted: 31 Aug 2018

See all articles by Kyron Huigens

Kyron Huigens

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: August 30, 2018


Two conflicting lines of Supreme Court cases generate “the Apprendi puzzle.” If the Constitution protects the traditional architecture of the criminal law, then a legislature cannot simply declare elements of offenses “sentencing factors” and thereby relieve the prosecution of the obligation to prove those elements beyond a reasonable doubt to a jury. On the other hand, traditional discretionary sentencing by judges is unconstrained by law. Criminal offenders and society can only gain by making sentencing factors explicit in determinate sentencing systems, and under the federal system a legislature should have a free hand to designate sentencing factors within such a system.

This dilemma is the product of the Court’s persistent refusal to rely on theories of punishment in its criminal law jurisprudence. This article reframes the issues in a more sophisticated theoretical vocabulary, replacing the Court’s conceptual vocabulary with refined versions of “mitigation,” “culpability,” “elements,” and “affirmative defenses.” Use of these refined terms within a virtue-ethics theory of punishment clearly delineates the respective roles of a jury at trial and a judge in sentencing. This delineation separates offense elements and sentencing factors both conceptually and practically, and thereby dissolves the dilemma at the heart of the Apprendi puzzle.

Suggested Citation

Huigens, Kyron, Solving the Apprendi Puzzle (August 30, 2018). Georgetown Law Journal, Vol. 90, 2002, Cardozo Legal Studies Research Paper, Available at SSRN:

Kyron Huigens (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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