This Article considers whether it would be sound to extend the Apprendi rule to affirmative defenses. Part II of this Article considers the historical foundation of the Due Process Clause and the evolution of the assignment of the burden of proof for affirmative defenses and sentencing factors. Part II also reviews Mullaney and its progeny through the most current case, Apprendi. Part III discusses the Court's model for determining which categories of statutory language constitute elements requiring proof beyond a reasonable doubt and which are "nonessential element[s] of an offense." Part IV evaluates whether it is appropriate to assign the defendant the burden of proving affirmative defenses to the defendant under the post-Apprendi construct and considers the likelihood and wisdom of returning Mullaney to its full constitutional vigor. Ultimately, this Article concludes that while extending the Apprendi rule to affirmative defenses would not be inconsistent with recent Court decisions, it would be inappropriate because the Court's reasoning for curtailing the legislature's ability to shift the burden of proof for sentence enhancements is not applicable to affirmative defenses.
Leslie Yalof Garfield, Back to the Future: Does Apprendi Bar A Legislature's Power to Shift the Burden of Proof Away from the Prosecution by Labeling an Element of A Traditional Crime As an Affirmative Defense?, 35 Conn. L. Rev. 1351 (2003), http://digitalcommons.pace.edu/lawfaculty/516/.