Perhaps some of you fellow legal dopers can help me with this quandry that the Apprendi line of cases seemingly fail to address:
Scenario #1: A state outlaws mopery and sets the punishment to a maximum of 5 years in prison. The same statute also says that if the judge finds that if you use a gun while committing mopery, then you may be subject to a maximum sentence of 7 years imprisonment.
Apprendi holds this to be unconstitutional. Why? Because you have a Sixth Amendment right to be tried by a jury as to all facts relevant to subject you to your term of imprisonment. As the finding of guilty of mopery only subjects you to 5 years, a judge cannot substitute himself for a jury and increase your penalty. Seems fair, and I agree. But…
Scenario #2: A state outlaws mopery and sets the punishment to a maximum of 7 years imprisonment. The same statute also says that if a judge finds that you did not use a gun while committing mopery, then you will only be subject to a maximum penalty of 5 years imprisonment.
Apprendi would say that this is permitted. Indeed the dissent argued as much. In response, Justice Stevens relegated his rebuttal to this argument in a footnote:
His argument seems to be a non-sequitur. Nobody is suggesting that a state would decree that all laws have a 50 year penalty to them so as to remove certain matters from the jury’s hands. The suggestion is that in laws like the one specified above or the one at issue in Apprendi where the Legislature wants a small, but meaningful enhancement based on certain factors.
Is Apprendi just a drafting guide in these cases? A criminal gets the benefit solely by luck of the draw on how a legislature drafted the statute?