Structuring Sentencing: Apprendi, The Offense of Conviction, and the Limitied Role of Constitutional Law

The paper analyzes the recent line of United States Supreme Court cases that has called into question the constitutionality of highly controversial contemporary sentencing laws such as mandatory minimum sentences and the Federal Sentencing Guidelines. A narrow majority in Apprendi v. New Jersey (2000) and a plurality in Harris v. United States (2002) evaluated these sentencing laws under the Jury Trial guarantee of the Sixth Amendment and, at least for the time being, approved of their constitutionality. The paper demonstrates that the Court's interpretive struggle in these cases results from too narrow a focus on the Sixth Amendment and the allocation of responsibility between the trial jury and the sentencing judge. The paper argues that the constitutionality of these sentencing laws must be evaluated from a broader perspective: the separation of powers in constitutional criminal procedure. Rather than an issue of constitutional interpretation involving solely the Jury Trial guarantee, the validity of sentencing laws implicates the full range of the Constitution's provisions governing criminal procedure and their allocation of power to legislatures and prosecutors in addition to juries and judges. From this structural constitutional argument, the paper defends the constitutionality of most sentencing laws on the grounds that the separation of powers in criminal procedure imposes only a narrow restriction on legislative power to design statutory schemes by which convicted offenders are sentenced: a requirement that provisions that determine or enhance the defendant's maximum punishment be enacted, charged, and proven as part of the defendant's offense of conviction. Other sentencing laws, including mandatory minimums and the Guidelines, do not alter the defendant's maximum punishment when they are used to determine the defendant's particular sentence. Such laws therefore may be applied by the sentencing judge, rather than being found beyond a reasonable doubt by a trial jury, without violating the Constitution.