Apprendi and the Dynamics of Guilty Pleas
Professors Nancy King and Susan Klein devote most of their Commentary to a single subsection of my recent article.1 My entire article argued that Apprendi v. New Jersey2 exemplified criminal procedure's misguided focus on jury trials at the expense of the real world of guilty pleas. Professors King and Klein focus on my narrower point that Apprendi undercuts due process by making it harder for many defendants to secure judicial hearings after they plead guilty. In summary, I argued that defendants used to be able to get the massive benefits of pleading guilty while still enjoying enhancement hearings at sentencing. Now that enhancements are issues for jury trials, defendants cannot gain both benefits. They must either allocute to and concede these enhancement issues to gain guilty-plea benefits or go to trial on enhancement issues and forfeit these plea benefits. Professors King and Klein claim that defendants face no additional pressure to give up hearings under this scheme. But they fail to see how prosecutorial and judicial behavior reinforce the pressures to plead guilty, making hearings harder to secure for many defendants.