3
The Apprendi decision provides an excellent opportunity to study how intermediate court
judges deal with legal ambiguity. In a five-to-four decision, the Apprendi Court held that the
criminal sentences could not be increased in severity based on factual findings made by the trial
judge where that increase caused the sentence to exceed the maximum sentence supported by the
jury verdict or guilty plea. This new rule of constitutional law raised a great number of questions
regarding state and federal sentencing schemes and statutes. Under the procedures in place prior
to Apprendi, sentencing judges rather than juries had been responsible for making many factual
findings that could, potentially, trigger the Apprendi rule. These procedures would have to be
revised to comply with Apprendi. As two defense attorneys stated in an Apprendi “primer”:
“The implication of [Apprendi] is to call into question every sentencing enhancement” (Kalar
and Sands n.d., 7-8). In addition, Apprendi called into question the constitutionality of a great
number of state and federal criminal statutes. One practitioner estimated that the Apprendi rule
potentially affected literally dozens of federal criminal offenses—from illegal commodities
trading to theft from Indian tribes, from child pornography to the federal three-strikes law
(Broderick n.d.).
In terms of policy impact, Apprendi threatened “a potential revolution in criminal
sentencing” in a number of areas (Greenhouse 2002, A1). But it was in federal drug sentencing
that Apprendi introduced the most uncertainty. From the perspective of the workload and
business of the lower federal courts, the most important statute affected by Apprendi was 21
U.S.C. § 841, the principal federal drug offenses. The lower federal courts process thousands of
drug cases every year, and thousands of drug offenders are incarcerated in federal prisons. A
recent report issued by the Bureau of Justice Statistics concluded that drug offenders “constituted
the largest group of Federal inmates,” fully 55% of all federal prisoners (78,501 out of 142,766
Convention