Apprendi v. New Jersey

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The recent decision by the U.S. Supreme Court created a new rule of law which makes obvious the old problem with Nebraska's second degree murder statute. In 2000, the Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). Based upon the precedents in In re Winship and Mullaney v. Wilbur, and others, the Court ruled that, any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt. Apprendi's new rule then led to the decision in Ring v. Arizona, the case that challenged the death penalty sentencing phase in Nebraska law. Nebraska's death penalty sentencing procedure was determined to be unconstitutional (and was quickly amended by a special session of the Legislature) because the sentencing judge and not the jury determined the facts used to impose the increased statutory maximum sentence of death.

Applying Apprendi

Applying the Apprendi rule to Nebraska's second degree murder statute shows that it too violates the U.S. Constitution. The fact of the lack of a sudden quarrel was the only difference between the crimes of manslaughter upon a sudden quarrel and second degree murder. This one fact increased the prescribed statutory maximum sentence from 20 years for manslaughter to a sentence of life for second degree murder. Therefore, the Apprendi rule requires the fact of a lack of a sudden quarrel to be proved by the State and found by the jury beyond a reasonable doubt. The Nebraska criminal statutes do not require this and have not required this proof since these two criminal statutes were adopted in 1979.

What Apprendi did

Mr. Apprendi fired a number of shots into the house of an African-American family that had recently moved into his all white neighborhood. The Police believed this had happened on four different occasions. Mr. Apprendi was promptly arrested.

The New Jersey Criminal Procedure

The sequence of events that Mr. Apprendi was subjected to in the New Jersey courts is significant to the Supreme Court's analysis. Mr. Apprendi was indicted on 23 separate charges, from first degree to fourth degree offenses. His lawyer negotiated a plea bargain in which Mr. Apprendi was allowed to plead guilty to only three charges: two counts of possession of a firearm for an unlawful purpose (a second degree offense) and unlawful possession of an antipersonnel bomb (a third degree offense). The second degree offenses carried a potential maximum sentence of ten years. The Court accepted Mr. Apprendi's plea of guilty to the reduced charges.

However, that is where it begins to get interesting. At sentencing the prosecutor sought New Jersey's hate crime enhancement to Apprendi's sentence. Under the New Jersey hate crime statutes, if the prosecution can prove by a preponderance of the evidence that the motive of the crime was racial bias, a sentence can be enhanced by adding another 2 to 10 years. If enhanced, Apprendi's sentence on the second degree offense could be increased from a maximum of 10 years to a maximum of 20 years.

Procedural Law vs. Substantive Law

The U.S. Supreme Court did not find fault with the substance of New Jersey's statutes. It is perfectly permissible for a Legislature to allow criminal sentences to be enhanced upon a finding that the motivation for the crime was racial bias. The Court found fault only with the procedure that New Jersey used to impose that enhancement. The New Jersey procedure violated the Fifth and Fourteenth Amendment's Due Process Clauses, as well as the Sixth Amendment's notice and jury trial guarantees

Fixing New Jersey's Procedure

New Jersey's problem can be fixed by changing only a couple of steps in their process. They would only have to follow a process that was different from what was followed in Apprendi's case. Apprendi was originally charged with 23 offenses, none of which were the hate crimes enhancement. At his sentencing hearing it was the judge that found, by the preponderance of the evidence, that Apprendi's motivation for the crime was racial bias. This process could have been easily fixed. For example, had Apprendi been charged with 23 offenses and, at the same time, notified that the State would seek the hate crimes enhancement on these offenses, that would have satisfied the "notice" requirement of the Sixth Amendment. To satisfy the jury trial guarantee, the fact of racial bias as motivation for the crime would have to be proven beyond a reasonable doubt, by the State, and found by a jury not the judge. In Apprendi's case had he been initially charged with the hate crimes enhancement, his guilty plea (assuming the plea bargain required it) would waive his right to a jury trial and to proof beyond a reasonable doubt of the racial bias motivation.

Nebraska Substantive Law

Nebraska's second degree murder problem is different from New Jersey's procedural problem. It is not Nebraska's procedure that is defective, it is the substance of the second degree murder statute that is defective. In New Jersey the fact of the racial bias motivation was a part of their statutory definition. In Nebraska, the fact that allows the increase in the maximum sentence is not contained in the statute that defines the crime of second degree murder. The State has not been required to prove to a jury beyond a reasonable doubt the lack of a sudden quarrel since the second degree murder statute was changed in 1979. With that change in 1979, an intentional killing without premeditation was either second degree murder or manslaughter upon a sudden quarrel if the intent to kill was formed as a result of the sudden quarrel. Therefore, under the Apprendi rule, in order to increase the maximum potential sentence from 20 years for manslaughter to a maximum potential sentence of life for second degree murder the State would have to prove to a jury beyond a reasonable doubt, not only the intentional killing without premeditation, but also that the intent to kill was not formed as a result of a sudden quarrel. This is a problem of substantive law because this element of the crime is not a part of the definition of the crime of second degree murder.

Retroactive Application

Since the decision in Apprendi v. New Jersey, many Courts have used this distinction of procedural law versus substantive law to refuse to apply the Apprendi rule retroactively. However, Nebraska's substantive law problem requires the Apprendi rule be applied retroactively to the second degree murder statute. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), the U.S. Supreme Court stated the general rule of law that new constitutional rules of criminal procedure will not be applied retroactively to cases that have become final before the new rule is announced.

However, the Supreme Court also stated the two exceptions to that general rule. First, a new rule should be applied retroactively "if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Id. For example, a constitutional decision that States may not outlaw being a member of an unpopular political party, such as a communist party, would place that individual conduct outside the power of States to criminalize and, therefore, would be applied retroactively. The second exception is for watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding. At least one Federal District Court has decided that Apprendi falls into this second exception. See, Parise v. U.S., 135 F.Supp.2d 345, 349 (D.Conn. 2001). This Court recites that Supreme Court Justice O'Conner called Apprendi a "watershed" rule in her dissenting opinion to Apprendi.

Nebraska's problem falls into this second exception. Defining the crime of second degree murder in a manner that allows the arbitrary and discriminatory imposition of a life sentence where the crime actually committed is only manslaughter (with a maximum 20 year sentence) is fundamentally unfair. So fundamentally unfair that this method of defining crimes has already been constitutionally banned in Mullaney v. Wilbur, In re Winship, and Kolender v. Lawson; even without the "new" Apprendi rule.

Drawing a Line

The real impact of the Apprendi rule will be to stop arguments over what a Legislature can define as an element of a crime versus just a sentencing factor for that crime. The Apprendi rule plainly states that if a fact can increase the maximum sentence then it is an element, not a sentencing factor; no matter what the Legislature wants to call it. It remains to be seen whether Apprendi will cause the Supreme Court to relook at its definition of affirmative defenses in Patterson v. New York. It also leaves open the question what the Supreme Court will say about States (like Nebraska) who try and shift the definitions of their crimes into "sentencing guidelines," whether or not those sentencing guidelines are created by the Legislature or the state courts themselves. Even if that were to happen it would not affect the analysis of Nebraska's second degree murder statute because the fact of the sudden quarrel has always been an element of manslaughter and never an affirmative defense or sentencing factor for second degree murder.


In summary, the new rule from Apprendi plainly shows Nebraska's second degree murder statute is unconstitutional. Even without applying this new rule the second degree murder statute violates fundamental constitutional standards that were already in place. Whether Apprendi is applied retroactively or not, Nebraska's statute does not prevent arbitrary or discriminatory enforcement; a violation of substantive law. That alone renders the statute unconstitutional and void from its enactment. It remains to be seen whether the Nebraska courts will uphold the U.S. Constitution.

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