Every year hundreds of thousands of convicted criminal defendants are sentenced for their crimes, often through the implementation of a broad range of laws of relatively recent vintage such as mandatory minimum provisions and regulations of judicial discretion like the Federal Sentencing Guidelines. The policies underlying these sentencing laws are perhaps the most hotly contested issues in all of criminal procedure, with legislative amendments and calls for reform being made every year. Despite their tremendous importance and the constant political activity concerning them, however, the constitutionality of these laws is surprisingly uncertain-the United States Supreme Court has heard an astounding eight cases in six years on that single issue. With the stroke of a pen, a majority of the Court could redefine the constitutional criminal procedure of sentencing, strike down many or all of these sentencing laws, and potentially overturn the sentences imposed on millions of federal and state defendants nationwide. After the decisions in Jones v. United States and Apprendi v. New Jersey, which invalidated criminal sentences on Sixth Amendment grounds because the defendant's maximum penalty had been enhanced by findings of fact made by the sentencing judge rather than the trial jury, many observers predicted that the Court had embarked on a journey that would lead it to do exactly that. The strident dissents in those 5-48 cases lamented as much. They objected to the Court's "watershed change in constitutional law," for "cast[ing] doubt on sentencing practices and assumptions followed not only in the federal system but also in many States," and decried that it would "unleash a flood of petitions by convicted defendants seeking to invalidate their sentences in whole or in part on the authority of' these cases." The prediction about the effect on federal court dockets, at least, certainly came true: within two years, there were thousands of Apprendi claims raised at all levels, and six circuits announced en banc decisions related to Apprendi. Two years later, however, the Court slammed on the brakes, seemingly stopping the impact of Apprendi in its tracks. In Harris v. United States a different five-justice majority ruled that it was constitutional for the imposition of an enhanced mandatory minimum sentence to be based on a determination by the sentencing judge and not on a trial jury finding. This holding apparently preserved the constitutionality of most modem sentencing laws, in particular statutory mandatory minimum sentences and the Federal Sentencing Guidelines. The Court's newly promulgated doctrine distinguished between findings of fact that establish or increase a convicted defendant's maximum sentence on the one hand, and findings of fact that determine or increase the defendant's minimum punishment on the other. Yet while the results of Apprendi and Harris each commanded a narrow majority of the Court, at least five justices also agreed that the distinction between the two results was illogical. Even though his vote was dispositive, Justice Scalia, one of the Court's most prolific opinion-writers, was silent in Harris. And the Harris dissenters condemned the end of the supposed incipient Sixth Amendment revolution with the same vigor that their now-victorious counterparts had feared its arrival. For an issue of such surpassing importance to the legislative design of criminal sentencing laws, the Court's inability to find a stable justification for its constitutional doctrine is deeply troubling. The intellectual quandary found in the Court's opinions in the Apprendi line of cases results from imprecision in analyzing the constitutional issue. In adjudicating the constitutionality of the various sentencing provisions it has considered, the Court has analyzed the constitutional question solely in terms of the Jury Trial guarantee of the Sixth Amendment and has relied almost exclusively upon an originalist method of interpreting that clause. This narrowly drawn analysis is confounded by a factual and historical posture that dooms the inquiry from the start, and has led the Court to its present intractable divisions over the constitutional law of sentencing. The Court's holdings in Apprendi and Harris are eminently defensible as a matter of constitutional law---and entirely logical-when analyzed in the proper way. Rather than focusing only on the Sixth Amendment, the constitutional law of sentencing must be examined through a much broader perspective. In addition to the trial jury and sentencing judge, the powers held by the legislature and prosecutor also must be considered. Similarly, instead of the original understanding of a single clause, the constitutional law of sentencing derives from structural reasoning about the allocations of power to those four institutions found in the criminal procedure provisions of the Constitution. This broader analysis is the constitutional structure of criminal procedure established by the Constitution's text. At the core of the Constitution's institutional balance of power in criminal procedure is the concept of a criminal defendant's offense of conviction: the crime that is enacted, charged, tried to verdict, and punished. Many well-known constitutional protections, including the Sixth Amendment right to trial by jury, apply to one or more of the first three stages of a criminal offense. The constitutional issue raised by the Apprendi line of cases involves the relationship of the concept of the offense of conviction to the sentencing stage of a criminal case. Analyzing the structural framework of constitutional criminal procedure demonstrates two fundamental conclusions about the constitutional law of sentencing. One is that a defendant's sentence is unconstitutional if it exceeds the maximum penalty provided for the offense of conviction established by the guilty verdict--the principle safeguarded by the Apprendi rule. The other is that sentencing laws that regulate the determination of a defendant's sentence within the maximum penalty provided by the offense of conviction are consistent with the constitutional structure of criminal procedure and therefore are constitutional---the doctrine promulgated in Harris. The constitutional structure analysis concludes that some allocation of power among the four institutions-legislature, prosecutor, trial jury, and sentencing judge-is both unavoidable and necessary. More significantly, subject to the narrow constitutional limitation provided by the Apprendi-Harris rule, the legislature is the institution vested with the authority to determine that allocation with respect to the definitions of criminal offenses and the imposition of sentences for their violations. One legislature might enact offenses and a sentencing scheme in which nearly all power to determine a defendant's sentence rests in its hands and those of the prosecutor. By contrast, another legislature might do the opposite and enact a system in which the sentencing judge plays a nearly dispositive role in setting the defendant's punishment. The constitutional structure analysis explains why the Constitution equally permits both of these choices (and others) and justifies the outcomes of Apprendi and Harris far more persuasively than the Court's opinions. Within the wide bounds permitted by the constitutional structure of criminal procedure, the legislature may design and implement a wide variety of sentencing laws without violating the Constitution. Part I of this Article summarizes the historical developments that led to the Apprendi line of cases. After reviewing the constitutional history of sentencing, it describes how recent statutory innovations created the new constitutional question the Court faces. It then analyzes the Apprendi line of cases and describes the Sixth Amendment interpretive impasse that has arisen in the Court's decisions. Part II explains the constitutional structure of criminal procedure and applies that analysis to the problem of the constitutional law of sentencing presented in the Apprendi line of cases. It justifies both the Apprendi rule and the Harris rule and rebuts several counter-arguments. Finally, it describes the consequences of the constitutional structure analysis for the future of the constitutional criminal procedure of sentencing.
Benjamin J. Priester, Structuring Sentencing: Apprendi, the Offense of Conviction, and the Limited Role of Constitutional Law, 79 IND. L.J. 863 (2004).