The Apprendi-Blakely emphasis on the effect on maximum sentences is somewhat puzzling. Suppose that a statute establishes two different maximums (1 year vs. 3 years) between two different levels of larceny, depending on the value of the items stolen. Under a literal reading of Apprendi, the value of the goods must be submitted to the jury, although the increase in potential sentence (2 years) is only a small fraction of the increase in potential sentence under the drug guidelines. On the other hand, if Apprendi reaches the drug statute, many people argue that recent salutary reforms in sentencing processes will be threatened. Some people, however, have suggested that Apprendi would allow the jury to find the facts that potentially affect a sentence while allowing the judge to decide the precise quantity of that effect, much as a jury’s finding that the defendant assaulted the victim “with intent to kill” allows the judge to increase the sentence based upon that finding.
Tarrance receives anonymous calls from the producers detailing their plans to put on an all-night “Techno-Funk” rave concert and also to sell XTC, an illegal designer drug. They tell Tarrance the date and location of the concert and hire him to print up catchy flyers advertising the event and the directions to the secret location. He is also hired to find friends who will pass out flyers to individuals who might be interested in attending the concert.
Tarrance knows that XTC is often sold at rave concerts, but he has never been to a rave concert, does not sell drugs, and has never taken XTC. He is hired only to promote the concert.
A teenager passing out flyers is stopped and questioned by the police. She tells the police that Tarrance hired her to pass out the flyers. The police obtain a warrant and search Tarrance’s home. They find no drugs or drug paraphernalia; they find only a printing press and the printed flyers.
A creative prosecutor charges Tarrance with “advertising an event at which drugs will be sold,” even though there is no statute defining this offense. Can Tarrance be convicted on this charge?