Four decades after the enactment of the federal Sentencing Reform Act, one might expect a settled consensus to have emerged addressing the constitutional constraints on implementing norms such as predictability, consistency, and uniformity in the imposition of criminal punishment in the United States. In reality, the United States Supreme Court has failed to provide stability or clarity in the doctrinal principles implicated in millions of criminal cases nationwide. Spanning a quarter century, the Apprendi v. New Jersey line of cases has featured narrow or fragmented majorities, significant concurring opinions, and multiple instances of individual justices either overtly admitting to changing their minds or tacitly joining an opinion seemingly inconsistent with their previous views. Only one justice who participated in Apprendi remains on the Court, and four new justices have taken their seats since the last major decision in 2013, which was decided by a splintered 4-1-4 margin. In 2024, the Court once again evaded the enduring ambiguities. The time has come for the Court to do its job and finally bring long-overdue certainty to the constitutional law of sentencing factfinding.

In the Apprendi line of cases, the Court essentially has taken the view that the power to define offenses is exclusively legislative and the power to determine sentences is exclusively judicial. That view is wrong. Legislatures possess the power to determine both the ceiling and the floor of the punishment range associated with each criminal offense, and the constitutional law of sentencing factfinding rightly requires that this statutory sentencing range must be based upon facts found by the jury (or admitted in a guilty plea) and not by the sentencing judge. On the other hand, legislatures do not exceed their constitutional authority when they seek to enact and enforce policy judgments, whether by enacting criminal offenses or instead by adopting or authorizing guidelines, presumptive sentences, and similar provisions that constrain sentencing judges with mandatory effect. Reasonable people can, and do, disagree about the appropriate balance between individualized punishment and systemic uniformity in the imposition of criminal sentences. That is all the more reason to reject a constitutional interpretation that denies legislatures the power to determine that balance.