Over the past 15 years, the United States Supreme Court has decided a series of cases that
dramatically changed the constitutional landscape of sentencing in the United States. In the first of these cases, Apprendi v. New Jersey, 5 the Supreme Court addressed the constitutionality of a statutory sentencing enhancement. That enhancement provided for an increase in the maximum sentence for the unlawful possession of a firearm if the defendant possessed the firearm to intimidate someone because of their race. That factual finding—whether the defendant committed the crime to intimidate the victim based on race—was decided by the sentencing judge using a preponderance of the evidence standard. 6 The Apprendi Court held that, other than the fact of a prior conviction, any fact that increases the statutory maximum penalty for a crime must be submitted to a jury and proved beyond reasonable doubt. 7
General deterrence is a tricky topic. One ordinarily assumes that members of the general
public do not commit crimes because they are worried about getting caught and being sent to
prison. But there is not a lot of social science evidence that allows us to understand how, exactly deterrence works. We can assume that fewer people are likely to commit a crime if the punishment for that crime is 50 years in prison than if the punishment is only one year in prison. This idea of marginal deterrence—that more punishment is likely to reduce crime—is intuitively appealing. But there are reasons to doubt that it is effective in many cases. 142 Much of the social science literature suggests that making punishment more swift and certain—i.e., catching more people committing the crimes and punishing them quickly and consistently—is more likely to decrease crime than making the punishment associated with a particular crime higher. 143 But most importantly, the social science literature is unable to demonstrate clear effects of marginal deterrence generally, 144 let alone for [] possession.

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