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For well over a century the United States Supreme Court has debated who has final authority to define what is a "crime" for purposes of applying the procedural protections guaranteed by the Constitution in criminal cases. After numerous shifts back and forth from judicial to legislative supremacy,' the Court has settled upon a multi-factor analysis for policing the criminal-civil divide, an analysis that permits courts to override legislative intent to define an action as civil in the rare case where the action waddles and quacks like a crime. This tug-of-war over the finality of legislative labels in defining crime and punishment is far from over. For just as labeling an action "civil" may allow the government to circumvent criminal procedure entirely, so labeling a fact an "affirmative defense" or a "sentencing factor" instead of an "element" of an offense may allow the government to bypass, for that particular fact, certain procedures that the Constitution requires in the adjudication of offense elements. These procedural guarantees, namely, proof beyond a reasonable doubt, inclusion in the indictment, and trial by jury, need not be provided for non-elements. In its recent decision in Apprendi v. New Jersey, the Court has put to rest one aspect of this ongoing battle about the significance of labels, by declaring that any fact-other than a prior conviction-that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. But even as Apprendi settles one dispute, it prompts others. The Apprendi Court also recognized the possibility that in order to avoid the adjudication of sentence-enhancing facts in a full-blown trial, legislatures might simply amend some of the many criminal statutes affected by this rule. Suggesting that efforts to avoid the consequences of the rule in Apprendi by redrafting criminal statutes will be subject to "constitutional scrutiny," the Court has invited litigation over the constitutionality of ...

The Court in Apprendi v. New Jersey, ___ U.S. ___ (2000), held as a matter of due process that any fact, other than a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. In a longer forthcoming article, we attempt to answer some of the profound questions raised by the case concerning constitutional oversight of legislative authority to define what is a "crime," questions that will ripen over the years as legislatures look for ways around the rule and litigants test these legislative reactions. In this shorter essay, we turn our focus to a more immediate problem facing those laboring in the criminal justice trenches: the correction of flawed judgments after Apprendi. Apprendi threatens thousands of completed criminal prosecutions under dozens of existing state and federal statutes, of both the "add-on" and "nested" varieties. These statutes are collected in various Appendices. Whether relief is available to those sentenced under these statutes depends in part upon whether the Apprendi claim was raised on direct appeal or in a petition for collateral relief; whether the failure to treat a sentencing fact as an element was raised as a challenge to the indictment, to jury instructions at trial, to the validity of a guilty plea, or even as a claim of ineffective assistance; and whether the claim was properly preserved by the defense. These different contexts are considered separately. Also considered is the appropriate remedy for those who successfully navigate the procedural hurdles. (Note: The following is an updated version of the paper that appeared in the Federal Sentencing Reporter.)