University of Chicago Law Review

Start Page



This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v Pennsylvania in 1986, crescendoed in Blakely v Washington and United States v Booker in 2004-2005, and continues in cases such as Oregon v Ice, is a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It has failed to recognize that defining, adjudicating, and punishing crimes implicates both the Sixth Amendment Jury Clause and the Fifth and Fourteenth Amendment Due Process Clauses, and it has twisted the Jury Clause into an insoluble logical knot. Second, the practical effect of the Courts constitutional malpractice has been to paralyze the generally beneficial structured sentencing movement, with the result that promising avenues toward improved substantive and procedural sentencing justice have been blocked. Even the most widely applauded consequence of these cases, the transformation of the federal sentencing guidelines into an advisory system, proves on close inspection to be a decidedly mixed blessing. The Court has made the Constitution not a guide, but an obstacle, to a desirable distribution of authority among the criminal justice systems institutional actors. The Article provides a comprehensive analysis of all the opinions in the McMillan-Apprendi-Blakely-Booker-Ice line, considering both their constitutional reasoning and their practical impact on federal and state sentencing systems. It builds on a careful dissection of the defects in the Courts Sixth Amendment sentencing decisions to develop an alternative constitutional analysis that combines Sixth Amendment and due process principles to suggest a more intellectually coherent and practically desirable constitutional sentencing jurisprudence.