Criminal Procedure
Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas
110 Yale L.J. 1097 (2001) Last June, in Apprendi v. New Jersey, the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This rule, like most of criminal procedure law and scholarship, rests on the assumption that jury trials are the norm. In the real world, however, fewer than four percent of defendants go to trial before a jury; the vast majority plead guilty. This Article analyzes Apprendi as a case study in the shortcomings of trial-centered law and scholarship. This benign-seeming trial right will have unintended and perverse consequences in the real world of guilty pleas and Sentencing Guidelines. Apprendi's rule will deprive many defendants who plead guilty of sentencing hearings, promote prosecutorial arbitrariness, and undercut legislative guidance of unelected sentencing commissions. Instead of creating new trial rights that defendants cannot afford to exercise, the Court and scholars should instead focus on regulating guilty pleas and sentencing hearings. This Article proposes alternative solutions better adapted to the real world of guilty pleas and sentencing, such as preplea notice of sentence enhancements and procedural protections at sentencing. This Article concludes by suggesting more broadly how criminal procedure should move beyond its preoccupation with trials to improve the real world of guilty pleas and sentencing.
Rethinking the Puzzle of Escalating Penalties for Repeat Offenders
110 Yale L.J. 733 (2001) The general principle of escalating penalties based on offense history is so widely accepted that it strikes most people as simple common sense. This principle, however, tests the explanatory limits of economics. Contrary to the assumptions in the existing literature, probabilities of detection increase for repeat offenders. As a result, the standard optimal-deterrence model in economics dictates declining, rather than escalating, penalties for repeat offenders. Mining the insights of the emerging behavioral economics literature only makes matters worse, because the salience and optimism biases both support declining penalties as well. The gap between economic theory and actual practice is thus much wider than has been previously recognized. This Article explores two alternative conceptions of the role of legal penalties that may help to bridge that gap: legal penalties as supplements to extralegal sanctions and as expressive devices that help shape perceptions of moral wrongfulness.
