The Apprendi case: layman's primer

By Gary Callahan, prisoner of the drug war

On June 26, 2000 the United States Supreme Court decided an important case called Apprendi v. New Jersey, 530 U.S. 466. Petitioner Charles Apprendi fired several shots into the home of an African-American family and made a statement - which he later retracted - that he did not want the family in the neighborhood because of their race. He was charged under New Jersey law with second-degree possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years.

The specific count against Apprendi, however, did not refer to New Jersey's hate crime statute. This law provides for an enhanced sentence if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or a group because of race. After Apprendi pleaded guilty, the prosecution filed a motion to enhance the sentence. Key words here are "preponderance of the evidence," a standard of proof below what a jury must use and follow. A jury must find one guilty "beyond a reasonable doubt." A preponderance of the evidence is merely some indication that an individual probably committed the act alleged. "Enhance" is the legal euphemism for added time to a sentence.

The New Jersey judge, not the jury, found by a preponderance of the evidence that the shooting was racially motivated and sentenced Apprendi to a 12-year term on the firearms count. Apprendi appealed, claiming that the Due Process Clause of the Fifth Amendment to the Constitution required that a bias finding be proved to a jury beyond a reasonable doubt. In plain words, Apprendi's constitutional rights were denied when a judge, rather than the jury, found him guilty of the essential hate crime enhancement. The New Jersey appeals court affirmed the lower court's decision and Apprendi appealed to the United States Supreme Court.

The US Supreme Court reversed the New Jersey Court of Appeals, holding that the Constitution requires that any fact increasing the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. To the uninitiated, this might seem like a 'no-brainer,' but the ramifications of the Apprendi case were the functional equivalent of logical shrapnel tearing through the nation's courts, both state and federal level.

While judges historically could punish an offender if he was a recidivist, a repeat violator, only recently were offenses parsed out into many components of the substantive (original, essential) offense. The parsing out of an offense is called "relevant conduct," which are add-ons to the charge.

For instance, if one deals drugs, he could also be a "leader or organizer," which would expose him to an "enhanced" sentence. If one possessed a gun during certain offenses, he could be "enhanced" for the gun possession. If he worked in a bank and embezzled money, the defendant could be exposed not just to the embezzlement charge, but for abuse of a position of trust.

Apprendi was "enhanced" for perpetrating a hate crime. But this question emerged, was it constitutional when he was neither indicted for that - a Fifth Amendment right - nor given notice of the enhancement, a Sixth Amendment right? In Apprendi's particular case, he did not plea to any enhancement of his sentence, either. He was simply handed two years of extra punishment without being formally charged. The Supreme Court voiced its concern over the fact that this is an unconstitutional measure, and a person must not be given any sentence over the statutory maximum if the facts were not submitted to the jury and proved under the "beyond a reasonable doubt" standard.

Although Apprendi was narrowly confined to that issue, the implications were huge. Under many of the sentencing guidelines used by states, and the federal sentencing guidelines imposed in 1987, thousands of people have been imprisoned beyond the statutory maximum by a judge's finding of relevant conduct, not a jury finding. Like so many of these cases, Apprendi was never formally charged with the enhancement, and the jury probably never knew he or she would be given an enhanced sentence.

Enhancements were determined by the prosecutor, the probation office and the judge, which significantly altered the right of a trial by jury, of citizens finding a person either guilty or not of the essential elements of the offense. The Supreme Court's Apprendi ruling is a tacit admission that what was done from 1987 to 2000 was essentially unconstitutional because the government is now including in the indictments it writes the specific sentencing enhancements and providing specific jury instructions for the proposed enhancements.

More than anything, the Apprendi case has spotlighted the glaring deficiencies in the criminal justice process under the Sentencing Reform Act of 1984, the so-called "new law." Prior to the new law, for example, if a person was arrested with a controlled substance, the amount was treated as an essential element of the offense that had to be studied and considered by a jury.

With the inception of the new law, it was considered sufficient in court to simply cite the drug statute and/or "five a ballpark figure" of the amount of drugs the defendant was accused of handling. For example, 'over five kilograms of cocaine,' or 'over five grams of cocaine base,' or 'more than five hundred kilograms of marijuana.' At sentencing, the judge would then tack on the Probation Office's report and add drug quantity by a preponderance of the evidence. That could mean statements made by a witness or informer or an accumulated amount of controlled substance sold over a period of time, or even-quite often-a guess.

Because the primary drug statute ranges over huge amounts of prison time - 10 years to life, 5 to 40 years and 20 years - it was easy for the prosecution to first obtain a conviction or plea bargain. At sentencing, it's not much of a problem to 'run the drug amount up' to whatever level is desired based upon allegations, unsubstantiated statements, hearsay and just plain 'guesstimation.' This is no longer allowed under Apprendi, where every indictment must now include a specific type and amount of controlled substance and which must be given to the jury, or, in the case of a plea bargain, must be agreed to by the defendant. 'Sentencing ambush' was the rule between 1987 and 2000, where post-Apprendi it is not.

What about relevant conduct which results in a sentence below the statutory maximum? Many people are sentenced under the theoretical statutory maximum, of course, and Apprendi has raised important constitutional questions for this group, as well. The way appellate judges have gotten around Apprendi since the decision is by stating-in drug cases especially-that a 19-year sentence is not over any statutory maximum if the statute reads 10 years to life, (Sec.841 (b) (1) A)); 5 to 40 years, (Sec.841 (b)(1)(B)); not more that 20 years, (Sec.841 (b)(1)(C)).

The rationale is that this is not unconstitutional punishment, but Apprendi has raised the point that quite possibly the Constitution requires that any enhancements must be within the indictment and given to the jury for a finding beyond a reasonable doubt. To the average citizen this might seem a logical conclusion because the average citizen has so little understanding how the American criminal justice system has been handed over so completely to the Attorney General and his prosecutors.

There are currently several cases granted review that will hopefully resolve several of the more pressing questions under the Apprendi doctrine, all of which should be settled this Supreme Court term, ending in June, 2002:

• 00-10666 Harris v. United States. The question presented is: Given that a finding of brandishing of a gun results in an increased mandatory minimum sentence, must the fact of 'brandishing' be alleged in an indictment and proved beyond a reasonable doubt?
• 01-687 United States v. Cotton. The question presented is, does omission from a federal indictment of a fact that enhances the statutory maximum sentence require the court of appeals automatically to vacate the enhanced sentence? In this case the defendant did not object to the sentence in district court, and the government introduced overwhelming proof of the fact that supported the enhanced sentence, and defendant had notice that the fact could be used to seek the enhanced sentence.
• 01-488 Ring v. Arizona. The question presented is, is it acceptable for the legislature to remove from jury assessment facts that increase the prescribed range of penalties to which criminal defendants are exposed; does this not violate the defendant's Sixth Amendment rights?

The Apprendi decision will either be pinched down to the point where it will help almost no one - especially if it is not made retroactive by the Supreme Court - or it will greatly change the criminal justice landscape, depending on the outcome of these three cases.