New paper exploring the terrain of Apprendi-land

Just posted on SSRN is this new paper (which is forthcoming in the 2007 Supreme Court Review) by Jonathan Mitchell entitled "Apprendi's Domain."  Here's the abstract:

Apprendi v. New Jersey and subsequent Supreme Court cases have extended the Sixth Amendment right of jury trial to some, but not all, factual disputes at sentencing. These court decisions require juries to resolve any non-recidivist sentencing fact that increases the ceiling on a defendant's punishment, but do not extend this requirement to facts that decrease a defendant's punishment or that establish mandatory minimums without raising the maximum allowable sentence.  This fails to provide a coherent or sensible constitutional rule for distributing factfinding powers between judge and jury. The reason is that the Supreme Court has inexplicably decided that all facts subject to the Sixth Amendment jury requirement must also be proved beyond a reasonable doubt, as if they were "elements" of substantive criminal offenses. 

This tie-in arrangement between the jury right and the reasonable-doubt rule is mistaken, and has caused two serious problems with the Court's Apprendi jurisprudence.  First, it has produced a formalistic jury right that is easily evaded by legislatures and that hinges on an untenable distinction between "aggravating" and "mitigating" sentencing facts.  The criminal jury's role was traditionally understood as extending to all "questions of fact," as opposed to "questions of law," but the Supreme Court cannot adopt this approach because it is unwilling to countenance a corresponding expansion in the proof-beyond-a-reasonable-doubt requirement and the concept of "elements."  Second, Apprendi's all-too-limited efforts to expand the jury right have propogated an overbroad concept of "elements" that lacks historical support and brings needless doctrinal complications to judicial efforts to broaden the right of jury trial.  This article urges a different approach that uncouples the Court's link between these two constitutional protections.  Juries should decide all disputed questions of fact that aggravate or mitigate a defendant's guilt or punishment.  But courts should not require these facts to be charged by prosecutors or proved beyond a reasonable doubt whenever they increase a defendant's maximum allowable punishment.  This will give meaningful content to the right of jury trial while avoiding the historical and pragmatic problems caused by an expansive theory of "elements."

Looks like I already have a must-read for this weekend.