2020 Symposium

Apprendi at 20

Friday, October 9th, 2020, 3:00 p.m. to 5:00 p.m.

In Apprendi v. New Jersey, the U.S. Supreme Court recognized the right to have aggravating sentencing factors found by a jury. The decision created a new Sixth Amendment sentencing doctrine, disrupting decades of sentencing reform in Congress and in the states. This symposium will discuss the impacts of Apprendi, twenty years later.

The live portion of this event will include a moderated panel and a Q&A. The Honorable Judge Bibas will open the event with his remarks and moderate the panel. During the Q&A, the Law Review will open up the event to questions from attendees. As a supplement to the event, each participant has recorded a summary of the main arguments of his or her article. To get the most out of the event, please watch the videos or read the article summaries below.

REGISTER HERE: https://zoom.us/webinar/register/WN_oXmmN3J-Q5OvEhwXrwZeMg

Panelists and Speakers

Hon. Stephanos Bibas, U.S. Court of Appeals, Third Circuit
Hon. Stephanos Bibas is a judge on the U.S. Court of Appeals for the Third Circuit. Before his appointment to the bench, Judge Bibas was a greatly respected and highly influential law professor at the University of Pennsylvania Law School. Prior to becoming a law professor, Bibas served as a federal prosecutor and clerked on the U.S. Supreme Court for Justice Kennedy. Judge Bibas is an expert on sentencing law, and his scholarship on the topic has appeared in many law journals, including the Michigan Law Review, Northwestern University Law Review, Virginia Law Review, and Yale Law Journal. Those articles have been incredibly influential not only among law professors, but also in the courts. Judge Bibas is the 15th-most-cited law professor by the U.S. Supreme Court, U.S. courts of appeals, and state high courts.

Douglas A. Berman, Ohio State University Moritz College of Law
Douglas A. Berman is the Baker & Hostetler Chair in Law at The Ohio State University Moritz College of Law and creator of the widely-read Sentencing Law and Policy blog (which was cited in the Supreme Court’s Booker opinion). He is co-author of the leading sentencing casebook, and has authored dozens of articles on constitutional criminal procedure including Reconceptualizing Sentencing, 2005 U. Chi. Legal. F. 1 (2005), Beyond Blakely and Booker: Pondering Modern Sentencing Process, 95 J. Crim. L. & Crimonology 653 (2005), and Should Juries be the Guide for Adventures Through Apprendi-Land?, 109 Colum. L. Rev. Sidebar 65 (2009).

Are jury trials and heightened standards of notice and proof just a mere formality in the American criminal justice system or are these procedures of fundamental and foundational importance? Just to ask the question would seem to answer it. His article details how formalism and functionalism, rather than fundamental and foundational concerns, have shaped the work of courts and other actors in the arena of sentencing before and after the Apprendi ruling. Central to this story, and to understanding the tensions persisting in modern sentencing law and practice, is the strong tendency for courts and other actors to be more concerned with “getting it right” than with respecting rights at sentencing. He details some modern problems that can be attributed to prioritizing “getting it right” rather than respecting rights at sentencing. He further seeks to draw on foundational and fundamental ideas to explore what might be achieved, not only by courts but also by other actors, if jury trials and heightened standards of notice and proof were to be embraced as procedures of fundamental and foundational importance in the operation of modern U.S. sentencing systems.

William W. Berry III, University of Mississippi School of Law
William W. Berry III is the Montague Professor of Law at the University of Mississippi School of Law and the author of more than 40 law review articles, primarily in the areas of capital punishment, sentencing, substantive criminal law, and sports & entertainment law. His work has appeared in the Texas Law Review, the UCLA Law Review, the Southern California Law Review, and the Washington University Law Review, among others. An expert on the Eighth Amendment, Professor Berry is the co-editor of The Eighth Amendment and its Future in a New Age of Punishment (Cambridge University Press, 2020).

Professor Berry’s article will be titled, “The Sixth & Eighth Amendment Nexus and the Future of Mandatory Sentences.” The Article tells the parallel stories of the Sixth and Eighth Amendments and the constitutional limits placed on mandatory sentencing. Despite these limits, the Article explores how and why elements of mandatory sentencing still persist. Finally, the Article argues for the minimization of, and in some cases, elimination of mandatory sentencing schemes. Specifically, the Article advocates for the loosening of the vestiges of mandatory sentencing schemes in favor of increased sentencing discretion in individual cases

Frank Bowman, University of Missouri School of Law
Frank Bowman is the Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri School of Law and Dean’s Visiting Scholar at Georgetown University Law Center. He is a former federal prosecutor and Special Counsel to the U.S. Sentencing Commission. He is also co-author of the leading treatise on federal sentencing law, the Federal Sentencing Guidelines Handbook (Thomson Reuters), co-editor of the Federal Sentencing Reporter, and author of some fifty-five articles on sentencing law, including pieces in the Stanford Law Review, Columbia Law Review, the University of Chicago Law Review, Vanderbilt Law Review, Wisconsin Law Review, Iowa Law Review, Wake Forest Law Review, and Washington & Lee Law Review.

Professor Bowman’s article considers how the Apprendi line of cases are nominally about the reach of the 6th Amendment right to trial by jury, but they are really about reclaiming federal judicial power over criminal punishment from Congress and its instrument, the Sentencing Commission. This judicial power play was provoked by a series of institutional failures by Congress, the Commission, and the executive branch. The result, at least in the federal system created by Booker’s transformation of the federal guidelines, is a unique regime that has the trappings, but not the force, of law. This system both wastes judicial resources and, because it is law-like, artificially sustains the unduly severe sentencing levels prescribed by the guidelines. He argues that ideally, the Supreme Court should overturn the Apprendi line to give constitutional space for sensible sentencing reform; failing that, Congress and the Commission should recraft the federal sentencing system along simpler, less punitive, but Booker-compliant lines. But he doesn’t expect either thing to actually happen.  

Hon. Nancy Gertner (ret.), Harvard Law School
Nancy Gertner is a retired federal judge, who served on the federal bench in Massachusetts from 1994 until 2011. While on the bench, she also taught sentencing at Yale Law School for ten years. Since her retirement she has been teaching at Harvard Law School, including courses on mass incarceration and sentencing, law and neuroscience, and other criminal law related topics. She was an Advisor to the ALI project on sentencing, and she serves on the board of both the Sentencing Reporter and the Sentencing Project. She has published widely on sentencing, both in her formal opinions and in law review articles. She is currently working on a judicial memoir, Incomplete Sentences (forthcoming, Beacon 2019) which deals with the men she sentenced, the framework through which she was obliged to see them, and how they should have been dealt with in a humane system.

Carissa Byrne Hessick, UNC School of Law
Carissa Byrne Hessick is the Ransdell Distinguished Professor of Law and the University of North Carolina and the author of more than a dozen articles on sentencing, including Recognizing Constitutional Rights at Sentencing (California Law Review, 2011) and Sixth Amendment Sentencing After Hurst (UCLA Law Review, 2018). She was also recently named as the Reporter for the American Bar Association’s new Taskforce on Sentencing. She is the faculty chair from the UNC School of Law for this symposium.

In Apprendi v. New Jersey, the Supreme Court held that the Sixth Amendment requires any fact that increase a defendant’s punishment to be sent to a jury and found beyond a reasonable doubt. In subsequent cases, the Court expanded that right, but it has also undermined the right by fashioning a strange remedy in the federal system. Professor Hessick’s article considers how that federal remedy preserves an important role for the Federal Sentencing Guidelines, while supposedly solving the Sixth Amendment problem by affording district courts discretion to sentence outside of the Guidelines range.  Recent cases elaborating on that remedy have prioritized the role of the Guidelines above district court discretion and, as a result, have resulted in a system that does little to vindicate a defendant’s right to a jury.

Nancy King, Vanderbilt University Law School
Nancy King is the Speir Professor of Law at Vanderbilt University Law School. She has been a member or reporter on the Advisory Committee on the Federal Rules of Criminal Procedure since 2001, has testified before the United States Sentencing Commission, conducted multiple FJC seminars for the federal judiciary on Apprendi and related issues, served on the Governor’s Blakely Sentencing Task Force for the State of Tennessee, and has authored or coauthored more than two dozen articles and chapters about sentencing and sentencing procedure.

Like the impact of most developments in constitutional criminal procedure, the impact of Apprendi  on criminal justice in state courts has far exceeded its better known impact in federal courts, which account for less than 10% of felony sentences nationwide. Professor King’s article focuses on state sentencing, providing the first detailed quantitative information about the adjudication of aggravating facts triggering sentences above the presumptive range in the five states that kept their presumptive guidelines after Blakely. Drawing upon on years of court and commission data, as well as information gleaned from more than 2000 case documents, the eye-opening findings address issues including notice of the prosecutor’s intent to seek an aggravated sentence, trial rates, bifurcation, the most common types of aggravating factors, the use of aggravated departures in bargaining, and fundamental questions about Alleyne’s scope that continue to generate disagreement among these states.

Susan R. Klein, University of Texas at Austin School of Law
Susan R. Klein is the Alice McKean Regents Chair in Law at the University of Texas at Austin. Her writings on Apprendi and sentencing issues have been cited in numerous Supreme and Appellate Court opinions.  She has been Chief Reporter for the Fifth Circuit Pattern Jury Instructions, Criminal (West 2019) since 1997, and serves on the State Bar of Texas Committee to Draft Model Jury Instructions, Criminal (8- volume set published by State Bar Association). In addition to publishing dozens of law review articles for top- 10 law journals, she is co-author of the nationally-adopted casebook Abrams, Beale, & Klein, Federal Criminal Law and Its Enforcement, 7th ed. (West 2020). 

Professor Klein’s co-author for the piece is Kallie S. Klein, a current third-year law student at Yale Law School. Following graduation, she will be clerking in the Southern District of Texas for the Honorable Diana Saldaña. Kallie has interned with the Public Defender Service for the District of Columbia and the Federal Public Defender’s Office for the Western District of Texas. This year she is interning at the U.S. Attorney’s Office for the District of Connecticut.

Their article is titled, “A Racially-Based Obstacle Course: How Apprendi Transformed the Federal Sentencing Guidelines into a Series of Judicial Obstacles, and Whether Shame Can Fix the Racial Disparities.”

The Apprendi decision correctly protects a defendant’s Sixth and Fourteenth Amendment right to have all essential elements decided beyond a reasonable doubt by a jury. More realistically, except for the 2% of felony cases that go to trial, the decision allows the defendant to use every element as a bargaining chip to leverage the lowest possible sentence. In a puzzling attempt to both retain the mandatory nature of the FSG and comply with the Sixth Amendment, the Booker remedial majority gave the Federal Sentencing Guidelines their now advisory posture, but simultaneously transformed them into a series of judicial obstacles. While constitutionally confusing, the majority’s decision to create these judicial hurdles is understandable when viewed in light of Congress’ laudable goals– eliminating unwarranted disparity and fostering determinate and transparent sentencing.

The Court has made departures or variances difficult by requiring trying and time-consuming guidelines calculations, mandating hearings on dozens of enhancements and mitigators that can then be ignored, and creating a “reasonableness” standard for appellate review that favors Guideline sentences. However, judges have still managed to avoid the Guidelines in half of all sentences by 2018, a major shift from their 70% compliance rate in 2005.

As sentencing continues to depart from Guideline ranges, unwarranted racial disparities continue to rise. In 2005, when the Guidelines were mandatory, black male offenders received sentences 5% higher than similarly situated white male offenders. In 2012, that differential rose to 20%. We suggest that we might decrease unwarranted disparity, while keeping sentences low, if the U.S. Sentencing Commission would maintain and publish racial disparities in sentencing for each district. Perhaps we can use knowledge and shame to accomplish the equality in sentencing that was lost when we turned our mandatory Guidelines into a judicial obstacle course.

Kate Stith, Yale Law School
Kate Stith is the Lafayette S. Foster Professor of Law at Yale Law School, and has authored or co-authored several seminal works on federal sentencing law, including Fear of Judging (U. of Chicago, 1998), Booker Rules (U. of Penn. L. Rev., 2012), and Defining Federal Crimes (Wolters Kluwer, 2nd ed., 2018). She has served on the Advisory Committee on the Federal Rules of Criminal Procedure and is a member of the American Bar Association’s Taskforce on Sentencing.

In a series of dense decisions spanning the last two decades, the Supreme Court has struggled to determine the scope of the rule announced in Apprendi v. New Jersey (2001). In Apprendi’s most recent progeny, United States v. Haymond (2019), Justices Gorsuch and Alito square off over Apprendi’s application (or not) to revocations of supervised release. Expansive dicta in Gorsuch’s plurality opinion suggest that Apprendi applies well beyond the original sentencing, while Alito’s spirited dissent reveals misgivings about Apprendi’s Sixth Amendment foundations. The Justices’ dueling opinions prompt us to return to the constitutional foundations of Apprendi itself, and to ask: Did Apprendi get it right?

REGISTER HERE: https://zoom.us/webinar/register/WN_oXmmN3J-Q5OvEhwXrwZeMg

Attorneys may self-file for CLE credit for attending the symposium. The symposium will be a two-hour online event, which may qualify for CLE credit in North Carolina, if approved. The speaker biographies and summaries of their overall arguments, which will be relevant to their discussion at the Symposium, is posted above. This information may be helpful for purposes of self-filing with the North Carolina State Bar.