# Any practical effect from Apprendi line of cases? **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [December 5, 2018, 7:21pm UTC](https://boards.straightdope.com/t/any-practical-effect-from-apprendi-line-of-cases/825627 "2018-12-05T19:21:37Z")\ **Posts on this page:** 5\ **Page:** 1
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 5, 2018, 7:21pm UTC](https://boards.straightdope.com/t/any-practical-effect-from-apprendi-line-of-cases/825627/1 "2018-12-05T19:21:37Z")
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: > [@Justice Stevens](#): > > The principal dissent would reject the Court’s rule as a “meaningless formalism,” because it can conceive of hypothetical statutes that would comply with the rule and achieve the same result as the New Jersey statute. Post, at 539-542. While a State could, hypothetically, undertake to revise its entire criminal code in the manner the dissent suggests, post, at 540-extending all statutory maximum sentences to, for example, 50 years and giving judges guided discretion as to a few specially selected factors within that range-this possibility seems remote. Among other reasons, structural democratic constraints exist to discourage legislatures from enacting penal statutes that expose every defendant convicted of, for example, weapons possession, to a maximum sentence exceeding that which is, in the legislature’s judgment, generally proportional to the crime. This is as it should be. Our rule ensures that a State is obliged “to make its choices concerning the substantive content of its criminal laws with full awareness of the consequences, unable to mask substantive policy choices” 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? ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [December 6, 2018, 10:13pm UTC](https://boards.straightdope.com/t/any-practical-effect-from-apprendi-line-of-cases/825627/2 "2018-12-06T22:13:10Z")
Oh hey, welcome back! ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 7, 2018, 1:28am UTC](https://boards.straightdope.com/t/any-practical-effect-from-apprendi-line-of-cases/825627/3 "2018-12-07T01:28:53Z")
> [@Guinastasia](#): > > Oh hey, welcome back! I realize I gave the impression that I was leaving based upon my prior last post, but I did not mean to give that impression. Several things came up during the last week. I’m staying. 🙂 ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [December 7, 2018, 11:06am UTC](https://boards.straightdope.com/t/any-practical-effect-from-apprendi-line-of-cases/825627/4 "2018-12-07T11:06:12Z")
> [@Guinastasia](#): > > Oh hey, welcome back! . . . she shoots and scores! Buy Sam a drink, and get his dog one, too! ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [December 7, 2018, 8:32pm UTC](https://boards.straightdope.com/t/any-practical-effect-from-apprendi-line-of-cases/825627/5 "2018-12-07T20:32:37Z")
> [@kayaker](#): > > . . . she shoots and scores! > > Buy Sam a drink, and get his dog one, too! You’d have to be here to believe it!