The Supreme Court’s decision in Apprendi v. New Jersey established a relatively clear rule: The Sixth Amendment’s right to a jury trial places a substantive restriction on legislatures by preventing any fact that has been deemed necessary for a particular level of punishment, either by statute or by constitutional decision, from being subject to judicial factfinding. Specifically, the Court held that the Sixth Amendment right to a jury trial requires that any fact (other than a prior conviction) that exposes a defendant to a greater level of punishment be found by the jury beyond a reasonable doubt.
This decision was nominally directed at so-called “sentence enhancements”—facts found by the judge at sentencing that increase punishment beyond the maximum allowed by the underlying statute. Some scholars have expressed concern that legislatures, deprived of the use of the increasingly popular sentence enhancements, would redefine their criminal codes so as to avoid the new Apprendi requirement by simply raising the maximum penalty authorized by the underlying statute. The judge could then use this greater discretion in sentencing to inflict the higher level of punishment desired. In light of this fear, there has been a revitalized effort to understand the boundaries that the Constitution places on the substance of criminal law.
This Note argues that the Sixth Amendment right to a jury trial, as explained in Apprendi, places a substantive restriction on legislatures by requiring that any fact deemed necessary for a particular level of punishment, either by statute or constitutional decision, be treated as an element of the crime.