For the last two terms, the United States Supreme Court has been rocked by the aftershocks of two independent yet equally significant criminal sentencing revolutions. The first, brought on by the Court in the 1970's, was the constitutionalization of capital sentencing procedures pursuant to the Eighth Amendment. This death-penalty jurisprudence had the laudable goal of attempting to reduce discrimination in the selection of those defendants to receive the ultimate penalty. A concurrent revolution with a similar goal occurred in the non-capital area. In 1984, Congress passed the Federal Sentencing Act to reduce discrimination and other disparities in criminal sentencing for non-capital cases. These efforts to enhance equality in capital and non-capital criminal sentencing have not been discussed together in the academic literature. We trace this parallel development in the capital and non-capital arenas and evaluate their success in ensuring equality. We conclude that for non-capital sentencing this revolution has enjoyed considerable success in ensuring similar treatment for similarly situated defendants. Moreover, a determinate sentencing system fosters democracy and transparency in sentencing decisions. The capital sentencing revolution, on the other hand, has been a dismal failure. State schemes have not significantly reduced sentencer discretion at the penalty phase of capital trials, and the results of such schemes have not been demonstrably more consistent than those obtained in the era preceding federal judicial regulation. The most recent threat to equality in sentencing in the non-capital context was the Court's decision in Apprendi v. New Jersey, that any fact, other than a prior conviction, increasing the prescribed maximum penalty for an offense must be found by a jury beyond a reasonable doubt. The broadest application of this rule would have foreclosed the Federal Sentencing Guidelines and their state guideline counterparts, because it is too cumbersome to have juries make all factfindings necessary to apply the guidelines, and because juries cannot be relied upon to implement such guidelines in a consistent fashion. The Court's rejection of this broad Apprendi theory last term in United States v. Harris insures the continued viability of determinate sentencing in the non-capital context. On the capital side, a guideline-like approach is unlikely to secure meaningful equality across cases. Thus, the Court's extension of the Apprendi rule, in Ring v. Arizona, to aggravating circumstances in capital cases will not undermine reform. Additionally, there are independent reasons in the capital arena to prefer jury to judge sentencing, such as sustaining the connection between the community and those imposing the death penalty. We conclude with comments regarding the tension between equality norms and jury sentencing. The Court's decisions in Apprendi, Harris, and Ring reflect an appropriate accommodation of these competing norms.
Jordan M. Steiker, The Search for Equality in Criminal Sentencing, 2002 Supreme Court Review 223 (2003) (with Susan R. Klein).