For over 15 years, the United States Supreme Court has struggled to define the constitutional constraints upon a ubiquitous practice in contemporary American criminal justice: the exercise of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense. While the Court has permitted much sentencing factfinding to continue unabated, its decisions have identified certain scenarios in which an offender's constitutional rights are violated when a fact found at sentencing creates particular impacts on the punishment. Unfortunately, from the beginning this new constitutional doctrine in criminal procedure has been fraught with instability, unpredictability, and analytical incoherence. The 1999 statutory interpretation decision in Nathaniel Jones v. United States marked the first time a majority opinion overturned a sentence based upon the principles that grew into the constitutional law of sentencing factfinding. The next year, the much more well-known decision in Apprendi v. New Jersey invalidated a sentence as a matter of constitutional law. In the following decade and a half, the Court issued over a dozen decisions applying and interpreting, contracting or expanding, and generally attempting to clarify the scope of the constitutional rule. Although the Court has described the doctrine as originating in the Sixth Amendment right to jury trial, its reasoning on that basis is dubious, and no small effort is required in trying to make sense of the doctrinal analysis. 5 As a consequence of this conceptual weakness, the Court's analysis and results in the Apprendi line of cases have been plagued by inconsistencies and flaws, perverse unintended consequences, and more.6 In 2014, the doctrine's continuing incoherence was illustrated in Joseph Jones v. United States, a case in which an opinion dissenting from the denial of certiorari highlighted the ongoing controversies over the doctrine's proper scope. From Jones to Jones, the Court has been unable to bring stability and consistency to the constitutional law of sentencing factfinding.
Benjamin J. Priester, From Jones to Jones: Fifteen Years of Incoherence in the Constitutional Law of Sentencing Factfinding, 47 U. TOL. L. REV. 413 (2016).