While this line of cases has become known as the “Apprendi” line of cases, after the 2000 decision that took the Court in a new direction, the line actually begins in 1986:

• McMillan v. Pennsylvania,  477 U.S. 79 (1986), held that imposition of a stiffer sentence based on the judge’s finding that the defendant had “visible possession of a firearm” was constitutional because the finding did not increase the maximum sentence permitted under the statute, but merely limited the judge’s discretion within the range already available.
   
• Almendarez-Torres v. United States, 523 U.S. 224 (1998), for the crime of being a deported alien who returned to the U.S. without permission, held that a sentence enhancement of up to eighteen years based on a judge’s finding that the original deportation was a result of an aggravated felony conviction was constitutional because the sentence enhancement did not create a separate crime.
   
• Jones v. United States,  526 U.S. 227 (1999), held that a federal carjacking statute that appeared on its face to create one crime with two sentencing enhancement facts, instead created three separate crimes, and that a defendant charged with either of the two more severely punished crimes had a right to a jury trial on those enhancing elements.
   
• Castillo v. United States, 530 U.S. 120 (2000), held that under a statute providing for an increased sentence if the crime was committed with a “machinegun,” whether the crime was committed with a machinegun was an element of the crime on which the defendant was entitled to a jury trial, not a sentence enhancement that could be decided by the judge.
   
• Apprendi v. New Jersey, 530 U.S. 466 (2000), held that where the defendant was convicted of a unlawful firearm offense with a maximum punishment of ten years, the defendant was entitled to jury determination whether under a separate statute he had committed the firearm offense out of a hate-crime motive, where such a finding could increase the sentence up to an additional ten years. The Court stated, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
   
• Harris v. United States, 536 U.S. 545 (2002), held that it was permissible for the judge to determine whether the defendant “brandished” a weapon during a drug offense, which could increase the mandatory minimum sentence the judge could impose. Thus, under Apprendi a defendant is entitled to a jury trial on a fact that could lead to a sentence in excess of the normal maximum, but under Harris is not entitled to a jury trial on a fact that could lead to a sentence greater than the mandatory minimum.
   
• Ring v. Arizona,  536 U.S. 584(2002), held that a defendant has a constitutional right to a jury determination of aggravating factors that make the defendant eligible for a death sentence.
   
• Schriro v. Summerlin, 542 U.S. 348 (2004), held that the rule established in Ring v. Arizona was not “retroactive.” This meant that defendants who had been sentenced to death in Arizona and several other states where judges had determined whether aggravating circumstances existed, could not get their sentences overturned if their direct appeal process was completed before Ring was decided. By implication, this also meant that Apprendi v. New Jersey was not retroactive for non-death-penalty defendants whose direct appeal processes were completed before Apprendi was decided.
   
• Blakely v. Washington,  542 U.S. 296 (2004) held that where the specified standard sentence range for second-degree kidnapping was 49 to 53 months, but the sentence could be enhanced upward to a maximum of 10 years upon a finding of one or more specified grounds for an upward departure (including acting with “deliberate cruelty”), the defendant was entitled to a jury determination whether he had acted with deliberate cruelty. The Court stated the constitutional principle as follows: “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”
   

• United States v. Booker; United States v. Fanfan, U.S. 543 U.S. 220 (2005).  In this much-anticipated decision in consolidated cases, the Court answered the question whether the earlier cases in this sequence spelled doom for the Federal Sentencing Guidelines.  Examining the history of sentencing in the U.S., the Court found a long-established, constitutionally valid tradition that when judges exercise discretion in sentencing, they may consider a wide range of information, much of which has not been the subject of a jury decision (like information in pre-sentence reports).  But the Guidelines rendered many aspects of sentencing mandatory rather than discretionary.  The Court, in a 5-to-4 decision by Justice Stevens, held that this made a constitutional difference—when sentencing was mandatory based on certain facts, “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”  Since the Guidelines did not provide for such jury fact-finding, they were unconstitutional as written.

  The Court then faced the question of how to respond to this unconstitutionality.  The two primary possible remedies were: 1) hold the mandatory provisions to be severable, leaving the Guidelines in place as factors for sentencing judges to consider in their discretion; or 2) graft some sort of jury fact-finding requirement onto the Guidelines in cases in which such a finding was required (which would have been far less than all the cases covered by the Guidelines).  The Court, in a 5-to-4 decision by Justice Breyer, opted for severability, believing it more likely in tune with the will of Congress.  (The four dissenters to Justice Steven’s opinion, who believed the Guidelines were constitutional, became the majority for purposes of Justice Breyer’s opinion because the “swing vote” in the case was Justice Ginsburg’s: she joined both Justice Stevens’s and Justice Breyer’s opinions.)  The Court also held that sentences should be reviewed by federal appellate courts under a “reasonableness” standard.

  It remains to be seen how federal district judges will respond to the decision.  Will they give great weight to the Guidelines, thus causing little damage to Congress’s original goal of making sentences more uniform?  It also remains to be seen whether Congress will make major changes in sentencing laws in response to the decision. 

  The decision also spells unconstitutionality for state sentencing guidelines with mandatory provisions.  Time will tell how state supreme courts and state legislatures will remedy their constitutionally-defective guidelines.   

   

There is a large and rapidly-increasing body of legal scholarship about this line of cases. Below are citations to some of the more recent ones:

Erik Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N. C. L. Rev. 621 (2004).

Marc R. Shapiro, Note, Re-Evaluating the Role of the Jury in Capital Cases after Ring v. Arizona, 59 N.Y.U. Ann. Sur. Am. L. 633 (2004).

Rachel E. Barkow, Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33 (2003).

Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 Va. L. Rev. 311 (2003).

Morris B. Hoffman, The Case for Jury Sentencing, 52 Duke L. J. 951 (2003).

Robert B. Stock, Case Comment, Criminal Law—Sentencing and Punishment: The United States Supreme Court Defines What Constitutes a “Crime,” 79 N. Dak. L. Rev. 391 (2003).

Julie L. Hendrix, Note, Harris v. United States: The Supreme Court’s Latest Avoidance of Providing Constitutional Protection to Sentencing Factors, 93 J. Crim. L. & Criminology 947 (2003).
 

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