Other Applications of Apprendi

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Apprendi prompted a major revision of the Court’s Sixth Amendment jurisprudence concerning sentencing procedure in death penalty cases. In Ring v. Arizona, the Court struck down an Arizona statute (which the Court had upheld before Apprendi) that conditioned imposing the death penalty upon a judge’s factual determinations as to the presence or absence of enumerated aggravating factors.1 Although the statute imposed a burden on the prosecution to prove the existence of the aggravating factors beyond a reasonable doubt, the Court ruled that, under Apprendi, those findings must be made by a jury rather than a judge.2 In Hurst v. Florida, the Court extended this holding to invalidate Florida’s death penalty statute (also upheld before Apprendi), which used an advisory jury to make a sentencing recommendation but left the ultimate sentencing determination to “the trial judge’s independent judgment about the existence of aggravating and mitigating factors.” 3 In striking down the statute, the Court reiterated that the jury trial right requires the government “to base [a defendant’s] death sentence on a jury’s verdict, not a judge’s factfinding.” 4

In a different vein, Apprendi applies to the factual predicates for mandatory minimum sentences. The Supreme Court held in Alleyne v. United States that “[a]ny fact that increases the mandatory minimum is an ‘element’ [of the offense] that must be submitted to the jury.” 5 Alleyne overruled one post-Apprendi case6 and one pre-Apprendi case,7 both of which upheld statutory schemes that premised increases in the mandatory minimum sentence upon judicial fact-finding.8 The Alleyne Court rejected attempts to “distinguish facts that raise the maximum from those that increase the minimum” under Apprendi's Sixth Amendment analysis;9 both types of facts, the Court reasoned, constitute offense elements and therefore fall within the scope of the jury trial right.10 Accordingly, “[j]uries must find any facts that increase either the statutory maximum or minimum,” 11 except for the fact of a prior conviction.12

In United States v. Haymond, a splintered majority of five Justices extended Alleyne to the context of supervised release.13 Haymond held unconstitutional a federal statute, 18 U.S.C. § 3583(k), that required imposing a mandatory minimum term of imprisonment of five years for any violation of a condition of supervised release through the commission of certain federal crimes, such as the possession of child pornography, by defendants required to register as sex offenders.14 The statutory scheme required judges to determine violations by a preponderance of the evidence.15 A plurality of four Justices reasoned that punishments for supervised release violations constitute part of the overall punishment for the initial offense of conviction, and that, as such, any violation found by a judge that triggered a new mandatory minimum prison term violated the jury trial right under Alleyne.16 A concurring opinion that supplied the decisive fifth vote, however, offered a narrow rationale. That opinion reasoned that supervised release proceedings generally do not implicate the jury trial right, but that the unique nature of Section 3583(k)—essentially, its requirement of a mandatory minimum prison term for enumerated offenses—rendered it “less like ordinary revocation [of supervised release] and more like punishment for a new offense, to which the jury right would typically attach.” 17

Apprendi also applies to the factual predicate for a criminal fine imposed for a non-petty offense.18 Under the petty offense doctrine, not all criminal fines trigger the jury trial right, but “[w]here a fine is substantial enough to trigger that right, Apprendi applies in full.” 19 As a result, it violates the Sixth Amendment for a judge to make a factual finding that increases the maximum potential fine for a serious (non-petty) offense.20 A judge may not, for example, determine the duration of ongoing criminal conduct in order to calculate the maximum potential fine under a statute prescribing penalties for each day of violation.21

In contrast, beyond the fact of prior conviction, at least one other type of factual determination relevant to sentencing remains unaffected by Apprendi. In Oregon v. Ice, the Supreme Court held that a state legislature may, without running afoul of the jury trial right, assign to a judge factual determinations that govern whether a defendant convicted of multiple offenses should receive consecutive rather than concurrent sentences.22 The Court noted that juries traditionally did not take part in this decision23 and that states take a variety of approaches to regulating how judges make the decision.24 Accordingly, on the basis of “twin considerations—historical practice and respect for state sovereignty,” the Court declined to extend Apprendi to the sentencing decision of whether to impose multiple sentences consecutively.25

1: 536 U.S. 584, 589 (2002) ( “Capital defendants, no less than noncapital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” ). Ring overruled an earlier case that had upheld the same Arizona statute. Walton v. Arizona, 497 U.S. 639, 649 (1990) ( “[W]e cannot conclude that a State is required to denominate aggravating circumstances ‘elements’ of the offense or permit only a jury to determine the existence of such circumstances.” ).
2: Ring, 536 U.S. at 589, 597.
3: 136 S. Ct. 616, 620 (2016) (quoting Blackwelder v. State, 851 So.2d 650, 653 (Fla. 2003) (per curiam)). Hurst overruled two earlier Supreme Court cases that upheld the Florida statute. Hildwin v. Florida, 490 U.S. 638 (1989) (per curiam); Spaziano v. Florida, 468 U.S. 447 (1984); see Hurst, 136 S. Ct. at 624 ( “Time and subsequent cases have washed away the logic of Spaziano and Hildwin. The decisions are overruled to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of the death penalty.” ).
4: Hurst, 136 S. Ct. at 624.
5: 570 U.S. 99, 103 (2013).
6: Harris v. United States, 536 U.S. 545, 567 (2002) ( “[T]he political system may channel judicial discretion—and rely upon judicial expertise—by requiring defendants to serve minimum terms after judges make certain factual findings.” ).
7: McMillan v. Pennsylvania, 477 U.S. 79, 93 (1986) ( “[T]here is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” ).
8: Harris, 536 U.S. at 567; McMillian, 477 U.S. at 93.
9: Alleyne, 570 U.S. at 116.
10: Id. at 114–15 ( “As noted, the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.” ).
11: Id. at 113 n.2.
12: Id. at 111 n.1.
13: No. 17-1672, slip op. at 10–11 (U.S. June 26, 2019) (plurality opinion).
14: Id. at 3.
15: Id.
16: Id. at 10–11.
17: United States v. Haymond, No. 17-1672, slip op. at 2 (U.S. June 26, 2019) (Breyer, J., concurring).
18: Southern Union Co. v. United States, 567 U.S. 343, 360 (2012) ( “We hold that the rule of Apprendi applies to the imposition of criminal fines.” ).
19: Id. at 352.
20: Id.
21: Id. ( “This is exactly what Apprendi guards against: judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admissions allow.” ).
22: 555 U.S. 160, 163–64 (2009).
23: Id. at 163.
24: Id. ( “Most States continue the common-law tradition: They entrust to judges’ unfettered discretion the decision whether sentences for discrete offenses shall be served consecutively or concurrently. In some States, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order concurrent sentences upon finding cause therefor. Other States, including Oregon, constrain judges’ discretion by requiring them to find certain facts before imposing consecutive, rather than concurrent, sentences.” ).
25: Id. at 168.