Apres Apprendi

article published in law reporterThe Court in Apprendi v. New Jersey, ___ U.S. ___ (2000), held as a matter of due process that any fact, other than a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. In a longer forthcoming article, we attempt to answer some of the profound questions raised by the case concerning constitutional oversight of legislative authority to define what is a "crime," questions that will ripen over the years as legislatures look for ways around the rule and litigants test these legislative reactions. In this shorter essay, we turn our focus to a more immediate problem facing those laboring in the criminal justice trenches: the correction of flawed judgments after Apprendi. Apprendi threatens thousands of completed criminal prosecutions under dozens of existing state and federal statutes, of both the "add-on" and "nested" varieties. These statutes are collected in various Appendices. Whether relief is available to those sentenced under these statutes depends in part upon whether the Apprendi claim was raised on direct appeal or in a petition for collateral relief; whether the failure to treat a sentencing fact as an element was raised as a challenge to the indictment, to jury instructions at trial, to the validity of a guilty plea, or even as a claim of ineffective assistance; and whether the claim was properly preserved by the defense. These different contexts are considered separately. Also considered is the appropriate remedy for those who successfully navigate the procedural hurdles. (Note: The following is an updated version of the paper that appeared in the Federal Sentencing Reporter.