Over the last seven years, in what is commonly referred to as the Apprendi line of cases, the United States Supreme Court has promulgated an audacious and controversial constitutional law of sentencing characterized by thinly veiled disdain for legislative sentencing reform measures and high regard for judicial discretion in punishing offenders. The Court's opinions have asserted that its newfound constitutional principle is necessary to safeguard defendants' Sixth Amendment right to trial by jury against legislative encroachment. In truth, the only interest being preserved is judges' assessment of their own importance. The doctrinal and practical effects of the new sentencing doctrine have been profound. Although the Court has sustained the validity of some sentencing measures, including a statutory mandatory minimum punishment in Harris,5 the broader course of its decisions has invalidated most forms of common and politically popular sentencing laws that limit judicial sentencing discretion, such as a statutory sentence enhancement in Apprendi and a system of mandatory state sentencing guidelines in Blakely. In 2005 the doctrine culminated in a "coup de grace" against legislative authority: the ruling in Booker that the application of sentence-enhancement provisions in calculating punishment under the Federal Sentencing Guidelines is unconstitutional unless the Guidelines are given only advisory, rather than mandatory, effect on the decisions of sentencing judges. Blakely and Booker in particular have exposed just how hopelessly flawed and analytically bankrupt the proffered Sixth Amendment analysis is. The principle set forth by the Court has become absurdly formalistic to the point that when it is applied to the determination of individual sentences, it now produces divergent outcomes in otherwise identical cases. The Court's expressed justifications for its constitutional analysis cannot explain this troubling development, but examining the true constitutional interests at stake does. Deciding upon an individual offender's particular sentence is not a unitary exercise, but in fact consists of three separate and distinct decisions: the adjudication of offense element facts, the adjudication of additional punishment facts, and the determination of the punishment value of those facts. Different constitutional interests are implicated by each kind of determination, yet too often the necessary analytical precision is lacking in the Court's opinions. The tripartite analytical framework reveals that beneath the superficial camouflage of its Sixth Amendment analysis, the Court in fact has decreed as constitutional law a specific, contestable, and highly controversial normative vision of the nature of criminal sentencing. On one level the Court's vision has pronounced a new balance of power between legislatures and judges concerning the adjudication of offense elements and additional punishment factors. The Court has reduced legislative and power, but it has not shifted that power to the trial jury; instead it has shifted that power to the sentencing judge. Seen in this light, the real function played by the Court's principle is not protection of the jury's province in criminal cases, but instead the protection of the sentencing judge's authority to pass judgment on individual offenders. At this level alone the Court's conclusions are subject to numerous critiques. It is far from clear that anything in the Constitution, much less the Sixth Amendment, mandates the Court's conclusions about this aspect of the nature of sentencing. But the Court's vision of the nature of sentencing is not limited to issues of institutional balance of power in adjudicating facts. It strikes at an even deeper theoretical controversy concerning the most basic objectives of criminal sentencing. Imposing a sentence upon a convicted offender also requires the determination of the punishment values of the facts and circumstances that exist in any given case. That is, it must be decided how much weight each proven fact carries in assessing the severity or leniency of the punishment appropriate to the particular offense and offender. Beneath all discussions of sentencing reform lurk two fundamentally irreconcilable normative positions regarding the objective to be pursued in making determinations of the punishment value of facts. One maintains that justice is served by ensuring that the appropriate degree of individualized punishment is imposed based on the particular facts and circumstances of each case. The other, a prominent legacy of contemporary sentencing reform debates, maintains that justice is served by ensuring systemic equality across all cases so that similarly situated defendants are given similar sentences. Just as it has imposed a certain vision of the institutional balance between judges and legislatures, so too the Court has restricted attempts to reconcile these competing normative positions. For all its silliness, then, the Court's canine metaphor-that the sentencing "tail" must not "wag" the offense "dog"-nonetheless successfully isolates the fundamental issue of constitutional criminal procedure involved in the Apprendi line of cases, the constitutional law of sentencing, and debates about sentencing reform generally. The offense of conviction has paramount status; sentencing is a secondary, derivative enterprise. The tail is important, but ultimately it is the dog that is in control. So too with the constitutional law of sentencing, which must ensure that the offense of conviction wags the sentence, and not the other way around. The metaphor also helps to illustrate the flaws in the constitutional law of sentencing promulgated by the Court. The terms of the debate about the reasoning of the Apprendi line of cases and the future of sentencing reform must be changed. Discussion of Sixth Amendment formalisms must be replaced with deliberation over the proper institutional balance of power in criminal sentencing. Likewise, debate over procedural requirements for adjudicating facts must not be allowed to obscure the deeper controversy over the objectives to be pursued when determining the punishment values of those facts. Otherwise the Supreme Court's unilateral imposition of particular doctrinal and normative choices-about what counts as the dog and the tail, and what counts as unconstitutional wagging-will go unanswered.
Benjamin J. Priester, The Canine Metaphor and the Future of Sentencing Reform: Dogs, Tails, and the Constitutional Law of Wagging, 60 S.M.U. L. REV. 209 (2007).