Download this Paper Open PDF in Browser

Apprendi Land Becomes Bizarro World: 'Policy Nullification' and Other Surreal Doctrines in the New Constitutional Law of Sentencing

53 Pages Posted: 28 Mar 2010 Last revised: 2 Apr 2010

Benjamin J. Priester

Florida Coastal School of Law

Date Written: March 23, 2010

Abstract

Imagine a final exam essay answer in constitutional law which sets forth doctrinal principles like the following: Decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings. Appellate review of trial court decision-making is unconstitutional. Courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law; in fact, it is probably unconstitutional to enact legislation expressly compelling courts to follow the legislature’s non-constitutional policy preferences. One might expect such an exam answer to receive an F - but if the exam question involved the United States Supreme Court’s new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land - which has now become Bizarro World. This article examines and criticizes these and other surreal doctrines in the Court’s decisions, and argues that the Court must abrogate its expansion of Apprendi doctrine to restore most issues of sentencing policy to non-constitutional status.

Keywords: sentencing, Apprendi, Blakely, Booker, sentencing guidelines

Suggested Citation

Priester, Benjamin J., Apprendi Land Becomes Bizarro World: 'Policy Nullification' and Other Surreal Doctrines in the New Constitutional Law of Sentencing (March 23, 2010). Available at SSRN: https://ssrn.com/abstract=1577243 or http://dx.doi.org/10.2139/ssrn.1577243

Benjamin J. Priester (Contact Author)

Florida Coastal School of Law ( email )

8787 Baypine Rd.
Jacksonville, FL 32256
United States

Paper statistics

Downloads
131
Rank
185,245
Abstract Views
940