Watching Legislatures for Apprendi’s Effects on Plea Bargaining

Abstract

¶1 In Apprendi v. New Jersey, decided just two years ago, the United States Supreme Court held that any facts that work to increase a criminal defendant’s sentence above the statutory maximum must be treated as elements of the crime, and thus determined by juries, rather than as sentencing factors to be determined by the judge. With this decision, the Court purported to restrict legislatures’ ability to aid law enforcement in circumventing constitutional criminal procedure rules like the criminal burden of proof--thereby aiding criminal defendants. With a recent article in the Yale Law Journal, Stephanos Bibas joined other scholars in observing how easily legislatures can rewrite statutes to avoid Apprendi’s prosecutorial and legislative restrictions, if indeed they are substantive restrictions at all. Uniquely and provocatively, Bibas then argued that Apprendi, as a practical result of its interaction with the other rules and incentives of criminal litigation, will actually hurt criminal defendants, by shifting more power to prosecutors. Bibas argued that Apprendi acts to deprive defendants, who overwhelmingly plead guilty rather than face jury trials, of the only meaningful, real-world hearings they are likely to receive--judicial sentencing hearings.