"Apprendi" and Plea Bargaining

Abstract

Before "Apprendi", prosecutors using recidivism as a club could, and did, regularly insist that defendants admit aggravating facts as part of the plea or face additional time. When the prosecutor's threats of added time were not persuasive and the proof of aggravating facts weak, the defendant prior to "Apprendi" could refuse to admit to the aggravating fact, and plead guilty only to the offense without the aggravating fact. Nothing about "Apprendi" gives additional leverage to the prosecutor in this situation. A defendant who, prior to "Apprendi", decided to risk trial rather than face the aggravated sentence will make the same decision after "Apprendi". In fact, only one new bargaining chip is created in "Apprendi", and the Court gives it unequivocally to the defendant. By raising the burden of proof, "Apprendi" makes it much more difficult for the prosecutor to prove aggravating facts that trigger longer sentences.