Document Type


Publication Date



Imagine a final exam essay answer in constitutional law premised upon the following doctrinal principles: (i) identical findings of fact that produce identical effects on the outcome of a decision should sometimes be constitutional and should sometimes be unconstitutional based on formalistic doctrinal lines unrelated to the substantive merits of the issue being decided; (ii) decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings; (iii) appellate review of trial court decision-making is unconstitutional; and (iv) courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law. In fact, it is probably unconstitutional to enact legislation expressly compelling courts to follow the legislature's non-constitutional policy preferences. Naturally, we might expect such an exam answer to receive an F. But if the exam question involved the United States Supreme Court's new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land-which has now become Bizarro World. How did we get to this point? Little more than a decade ago, if you had asked any criminal procedure professor, criminal law practitioner, or judge to describe the doctrines of constitutional law that specifically govern the sentencing of a convicted criminal defendant, the answer would have been simple and reflexive: leaving aside the myriad of special rules for capital cases, there were not any. Of course, the basic, general principles of constitutional law applied to sentencing and ensured, for example, that the sentencing judge was neutral and unbiased as a matter of procedural due process, or that the sentence imposed was not motivated by an impermissible classification of race or sex as a matter of equal protection. But there was no constitutional law of sentencing as such, no set of doctrines specifically directed at either the procedure or the substance of determining each particular defendant's sentence. Beginning with its landmark Apprendi decision in 2000, the United States Supreme Court has dramatically repudiated this traditional answer. In just ten years, the Court has used a series of significant decisions to develop an extensive new constitutional law of sentencing. Most prominently, the decisions in Blakely and Booker declared that mandatory sentencing guidelines which had bound state and federal judges in the determination of sentences were unconstitutional. By invalidating these provisions, the Court has used its new constitutional law of sentencing to restore the power of sentencing judges to exercise their discretion in imposing sentences; in doing so, the Court has privileged the objective of an individualized punishment for each particular offender over the objective of systemic uniformity in maintaining consistent treatment of similar facts in similar cases. In the abstract, there is nothing objectionable about the concept of having a constitutional law of sentencing. Especially with contemporary "sentencing reform" measures becoming more frequent and more pervasive since the mid 1980s, the imposition of some constitutional constraints on sentencing-related laws likely was inevitable. After all, even the justices who dissented from the Court's early Apprendi doctrine decisions conceded the need for at least some minimal constitutional limits on legislative power. In reality, however, the constitutional law of sentencing the Court actually developed is subject to several serious objections. For one, the Court has grounded its analysis in the defendant's Sixth Amendment right to a jury trial, yet the doctrines promulgated in its decisions have nothing to do with protecting jury power. For another, the Court's doctrine produces bizarre outcomes when applied, having the effect of treating functionally identical sentencing findings differently based on formalistic criteria unrelated to the substantive merits of the sentence. And the Court has unjustifiably constitutionalized the primacy of individualized punishment over systemic uniformity in sentencing particular defendants, when in fact the balance between those competing values at sentencing should have remained a nonconstitutional policy choice entrusted to state and federal legislatures, not to the preferences of judges. The Court could have been forgiven for initial missteps in its incipient doctrine if it had corrected course in later decisions. But the Court has not done so. Instead, its most recent decisions have only made the analytical flaws worse, and have only compounded the problems its doctrines create. Today, the Court's new constitutional law of sentencing is all but unrecognizable when compared to its origin in Apprendi. The absurd formalisms embedded in the doctrine have been exacerbated. The doctrine now provides an incentive for sentencing judges to reason more arbitrarily and less transparently when determining punishment. And the doctrine has completely lost touch with any basis in jury trial rights, instead focusing entirely on protecting judicial power In fact, the Court has become almost brazen in its emphasis on judicial power, claiming for sentencing judges the authority to engage in "policy nullification" by declining to follow legislatively-adopted sentencing policies in favor of the judges' own policy preferences. Worse, this authority is not constrained to discarding the implicit spirit of the law so long as the judge follows its literal letter, but seemingly extends to a constitutionally mandated authority to ignore express declarations of sentencing policy enacted in statutes. The time has come for the Court to recognize these serious problems with the new constitutional law of sentencing, and to correct course by bringing the doctrine back to its foundational principles. To do so the Court will have to overturn several of its own recent precedents and roll back the scope of constitutional law in this area. It may be true that legislatures have enacted a wide range of unwise, if not downright stupid, sentencing policies over the last quarter century. But not every poor policy choice is unconstitutional, and the solution to bad legislative judgment should not be bad constitutional law.