The new sentencing conundrum: Policy and constitutional law at cross-purposes

For most of American legal history, federal constitutional law has had little to say about the processes or substantive results of criminal punishment decisions. This constitutional abdication has led to a robust era of experimentation in sentencing systems, with no meaningful constitutional brake. The early years of the new century have brought an end to this judicial silence. Blakely v. Washington and related cases represent an end to the Court's longstanding hands-off doctrine and signal the beginning of an ambivalent foray into the development of fixed constitutional rules for the process of punishment determinations. This Essay is pessimistic about the long-term effects of the Court's emerging jurisprudence. There are two major reasons for this pessimism: First, the Supreme Court is not sufficiently committed to its new Sixth Amendment doctrine to create a coherent constitutional schema; and second, legislatures nationwide will be tempted to respond to the Court's mandates in ways that will make their sentencing systems worse, not better. This Essay posits that if new Sixth Amendment doctrine is to align with good sentencing policy, both the Court and local policymakers must be turned in positive directions. The Court must be willing to follow through on the principles it has announced, which will require at a minimum that Williams v. New York, and some other anomalous cases, be overruled. In addition, Congress, state legislatures, sentencing commissions, and other policymakers must fashion responses to Blakely that accept rather than circumvent the Court's new vision of heightened process at sentencing.