Apprendi V. New Jersey - Opinion of The Court - Historical Basis

Historical Basis

Oliver Wendell Holmes observed, "The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed." Here, New Jersey threatened punishment for infractions against its firearms laws, and additional punishment for violations of its hate-crimes laws. Due process procedural safeguards should apply equally to both of these punishments.

Under the Constitution, due process gives criminal defendants two interdependent procedural safeguards with respect to the manner in which the sentence is determined. The first of these is the jury trial, a "guard against a spirit of oppression and tyranny on the part of the rulers" and "the great bulwark of our civil and political liberties," whereby "the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of the defendant's equals and neighbors." The second is proof beyond a reasonable doubt, the historical "measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt." There was historically no distinction between an "element" of a crime and a "sentencing factor" because the trial judge had very little discretion at sentencing, because most crimes had a specific sentence attached to them.

Justice Thomas explained how the original understanding of the jury-trial requirement supported the Court's ruling. He also argued that the jury-trial requirement applied to both mandatory minimum sentences and the findings of prior convictions used to enhance sentences. To make this argument, Justice Thomas had to repudiate his prior support for the prior conviction exception crafted in Almendarez-Torres v. United States, 523 U.S. 224 (1998). "What matters is the way by which a fact enters into the sentence." Even though a prior conviction may be valid because it entailed its own jury trial, the fact that that prior conviction was being used to enhance a new sentence meant that that fact must be submitted to a jury again.

Before the death of William Rehnquist and the retirement of Sandra Day O'Connor, this view commanded a majority of the Court. Many are hopeful that if the Roberts Court is directly faced with the question, it might extend Apprendi's jury-trial requirement to the fact of a prior conviction as well.