Apprendi's Limits

This article argues that the recent decision Blakely v. Washington did not decide, explicitly or implicitly, whether the Federal Sentencing Guidelines are constitutional. It also claims that the best theory of jury-trial rights under Apprendi v. New Jersey would uphold the Guidelines because they do not result in a punishment above the crime of conviction's statutory maximum. The idea that the legislative character of statutory maxima is important stems from separation of powers principles. Congress, not the Commission, is responsible for defining crimes, and thereby for prescribing how much punishment is authorized by a jury's guilty verdict. Any sentence below the sentence authorized by the jury is constitutionally permissible, regardless of whether that sentence is determined by rule (per the Guidelines) or by discretion (per indeterminate sentencing). Finally, the article suggests that the chaos arising after Blakely sheds light on the roles of certain repeat-player institutions that participate in constitutional rulemaking.