Constitutionally Tailoring Punishment

Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that reflect the perspectives of multiple institutional actors. This new understanding illuminates how both doctrines relate to the Court's earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system. It also underscores the need for other actors to complete the Court's work outside the confines of rights-based judicial doctrines by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired.IntroductionIn the late twentieth century, the Supreme Court largely restricted con- stitutional sentencing law to capital cases, proclaiming that under the Eighth Amendment, "death is different."1 But, since the turn of the century, the Court has revolutionized noncapital sentencing as well. The Apprendi v. New Jersey line of cases interpreted the Sixth Amendment to define facts that raise maximum punishments as substantive elements of crimes that require jury findings.2 More recently, Graham v. Florida banned life without the possibility of parole ("LWOP") sentences for juveniles who have not killed.3 And, just last year, Miller v. Alabama forbade legislatively mandated LWOP sentences for juveniles who have killed, although it permitted sentencers to exercise discretion in imposing such sentences in unusual cases.4These lines of cases appear to have little in common. Apprendi turned on a highly formalistic interpretation of the Sixth Amendment right to "trial[ ] by an impartial jury."5 Graham and Miller were functionalist and rested uneasily on the Eighth Amendment's apparently substantive ban on "cruel and unusual punishments."6 If life imprisonment for juveniles were itself substantively cruel, however, the Court should have banned it outright instead of simply leaving open a chance at parole or allowing sentencers to impose LWOP on certain killers. Moreover, the decisions emphasized retri- bution and rehabilitation at the expense of deterrence and incapacitation, even though the Eighth Amendment supposedly does not mandate any par- ticular penological theory. Despite these oddities, most commentators per- sist in discussing Graham and Miller in terms of the substantive cruelty of LWOP for juveniles, missing the procedural nuances.7Perhaps for that reason, commentators have overlooked important par- allels between the Graham and Apprendi lines. Both lines of cases marked a departure from the Court's usual deference to legislative judgment with re- spect to noncapital sentencing decisions. Both also limited judges' powers in some ways while enhancing them in others. And both read constitutional provisions in unexpected ways to reallocate sentencing power among various actors rather than to limit sentences or sentence enhancements directly and substantively. Both lines of cases thus fit oddly within the Sixth and Eighth Amendments' jurisprudential boxes.We see deep connections between these seemingly unrelated doctrines. The Court is awkwardly squeezing fundamental notions about the structural features of a system of just punishment into disparate individual rights pro- visions. What is emerging is a larger structural and procedural framework for constitutionally tailoring punishment.Not all the decisions underlying this development are new-the Court began regulating capital procedures nearly four decades ago, and cases like the analogous Woodson! …