The Canine Metaphor and the Future of Sentencing Reform: Dogs, Tails, and the Constitutional Law of Wagging

51 Pages Posted: 10 Oct 2006


Over the last seven years, in cases with now-famous captions like Apprendi, Blakely, and Booker, the United States Supreme Court has promulgated an audacious and controversial constitutional law of sentencing characterized by thinly veiled disdain for legislative sentencing reform measures and high regard for judicial discretion in punishing offenders. After explaining how the principle set forth by Court has become so absurdly formalistic that it now produces divergent outcomes in otherwise identical cases, the paper describes a tripartite analytical framework for sentencing determinations which makes clear that the real purpose of the Court's principle is not protection of the jury's province in criminal cases, but the protection of the sentencing judge's authority to pass judgment on individual offenders. Accordingly, the Court's new constitutional law of sentencing strikes at an even deeper theoretical controversy concerning the most basic objectives of criminal sentencing: the clash between serving justice by ensuring that the appropriate degree of individualized punishment is imposed based on the particular facts and circumstances of each case on the one hand, and serving justice by ensuring systemic equality across all cases so that similarly situated defendants are given similar sentences on the other. Beneath the superficial camouflage of its Sixth Amendment analysis, the Court in fact has decreed as constitutional law a specific, contestable, and highly controversial normative vision of the nature of criminal sentencing.

For all its apparent silliness, the Court's canine metaphor - that the sentencing tail must not wag the offense dog - nonetheless successfully isolates the fundamental issue of constitutional criminal procedure involved in the Apprendi line of cases, the constitutional law of sentencing, and debates about sentencing reform generally. It also helps to illustrate the flaws in the constitutional law of sentencing promulgated by the Court. The Supreme Court's unilateral imposition of particular doctrinal and normative choices - about what counts as the dog and the tail, and what counts as unconstitutional wagging - must not go unanswered.

Keywords: Apprendi, Blakely, Booker, sentencing guidelines

Suggested Citation

Priester, Benjamin J., The Canine Metaphor and the Future of Sentencing Reform: Dogs, Tails, and the Constitutional Law of Wagging. FSU College of Law, Public Law Research Paper No. 220; SMU Law Review, Vol. 61, No. 1, January/February 2007. Available at SSRN:

Benjamin J. Priester (Contact Author)

Florida Coastal School of Law ( email )

8787 Baypine Rd.
Jacksonville, FL 32256
United States

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