In June 2000, the United States Supreme Court decided Apprendi v. New Jersey,' a case that likely will have a significant impact on the administration of criminal justice in federal and state courts. The Court imposed a procedural limitation on prosecutors by restricting the types of facts that may be proven at sentencing rather than at trial. Specifically, the Court adopted a constitutional principle that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum" is an element of the offense of conviction. Under wellestablished constitutional doctrine, the Constitution's full procedural protections, especially the necessity of proof beyond a reasonable doubt to a jury at trial, apply to elements of offenses.4 Unless the Court intends to abrogate the long history of both legislative power to determine the appropriate range of punishment for crimes and judicial discretion to exercise judgment and consider additional facts in imposing a sentence within the range established by statute, however, the Court must have a specific understanding, or more accurately a definition, of what constitutes a "fact that increases the penalty for a crime beyond the prescribed statutory maximum." The Court does have such a definition, albeit one that is highly formalistic and strictly limited. For that reason, the Court's definition, and the principle that depends upon it, is susceptible to a strong attack that it illogically and unnecessarily exalts form over substance in a manner inconsistent with the Constitution and the Court's precedent. In Apprendi, both the dissent and the United States as amicus curiae launched that attack - the dissent going so far as to call the Court's principle a "meaningless formalism." This Article considers the formalism of "any fact that increases the penalty for a crime beyond the prescribed statutory maximum" as it appears in the Apprendi Court's principle and underlying definition. Part I briefly reviews the background to the Apprendi decision and the underlying doctrines of constitutional criminal procedure implicated by the Apprendi principle. Part II frames the issue in Apprendi by discussing the majority's principle and definition and the dissent's attack on them. Part III considers an example of an important statute - 21 U.S.C. § 841, the principal federal drug offense - on which the Apprendi principle has a substantial impact, and concludes that the Apprendi principle, though formalistic, is a necessary addition to the Court's doctrines of constitutional criminal procedure.
Benjamin J. Priester, Constitutional Formalism and the Meaning of Apprendi v. New Jersey, 38 AM. CRIM. L. REV. 281 (2001).