Document Type


Publication Date

Fall 2004


This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular attention to the functions and interaction of the major institutional actors in the process of defining and punishing crimes. In particular, it proposes that a crime for purposes of the Sixth Amendment jury trial right must be defined by a legislature and consist of the smallest bundle of facts that (a) within a family of offense types must be proven in order to expose a defendant to a particular maximum sentence, or (b) must be proven to require a defendant to suffer a mandatory minimum penalty designated by the legislature. If a legislature (or sentencing commission legislatively authorized to do so) attaches two sentences to a particular bundle of facts - a high statutory maximum sentence and a lower presumptive maximum sentence - the higher maximum is the statutory maximum whose triggering bundle of facts must be proven to a jury. Putting it another way, legislatures are permitted to to establish both maximum possible sentences and lower presumptive sentences as legal incidents of proof of the same bundle of facts. Facts in addition to those that define a crime which create presumptive maximum sentences lower than the statutory maximum or presumptive minimum sentences higher than the statutory minimum are sentencing factors that may be proven to a sentencing judge rather than a jury. The distinction between statutory minimum and maximum sentences and constitutionally acceptable presumptive sentencing ranges within those statutory limits would be the existence of meaningful discretionary judicial authority to sentence outside the presumptive range based on the facts of the case or the circumstances of the defendant. The Article discusses the advantages of this model in comparison to the narrow formalism of Blakely. It emphasizes that such a model accords both legislatures and juries their proper and important place in defining and punishing crime, while according judicial sentencing discretion constitutional stature for the first time. The Article emphasizes that its approach to defining crime must be coupled with a re-examination of the due process rights accorded defendants at sentencing and, ideally, with a reinvigorated Eight Amendment review of the severity of non-capital punishments.


Published as Frank O. Bowman III, Function Over Formalism: A Provisional Theory of the Constitutional Law of Crime and Punishment, 17 Fed. Sent. R. 1 ( 2004). © 2004 by [the Regents of the University of California/Sponsoring Society or Association]. Copying and permissions notice: Authorization to copy this content beyond fair use (as specified in Sections 107 and 108 of the U. S. Copyright Law) for internal or personal use, or the internal or personal use of specific clients, is granted by [the Regents of the University of California/on behalf of the Sponsoring Society] for libraries and other users, provided that they are registered with and pay the specified fee via Rightslink® on [JSTOR (] or directly with the Copyright Clearance Center,



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