Academic journal article Northwestern University Law Review

Fragmentation and Democracy in the Constitutional Law of Punishment

Academic journal article Northwestern University Law Review

Fragmentation and Democracy in the Constitutional Law of Punishment

Article excerpt


What is the relationship of structural constitutional principles like checks and balances to democracy in criminal punishment? The usual answer is straightforward: in punishment, as elsewhere, checks and balances further democracy by avoiding tyranny and abuse. Beyond that, it is not much discussed. Most treatments of the relationship of constitutional law to democracy in punishment focus instead on a particular constitutional provision or institution, and they often lurch between two poles. At one, constitutional law ensures a popular voice in punishment. The eighteenthcentury jury embodies this vision with its public trials in the town square. At the other, constitutional law gives a voice to the "discrete and insular minorities" who are so often punishment's targets.1 The Warren Court embodies this vision with its representation-reinforcing approach to judicial review.

Such neglect of structure is a mistake. Checks and balances and similar issues of what I call fragmentation-meaning the way in which the Constitution divides power between actors and governments-have a richer and more complicated relationship to democracy in punishment than this picture suggests in good and bad ways. While scholars of government often see fragmentation as a bug, when it comes to punishment, it also acts as a feature. Punishment is notorious for the messy mix of competing values, purposes, and trade-offs it implicates, to say nothing of its demand for attention to the details of each case. By affirmatively blending a range of inputs into punishment determinations, fragmentation can enhance different types of influence in an area in which perspective is of special concern. At the same time, however, the potentially positive aspects of fragmentation can backfire, encouraging tunnel vision, replicating existing power differentials, and making it easier for more well-resourced voices to drown out others. In either case, the way in which the Constitution fragments the power to punish is a vital subject of attention for anyone interested in the intersection of democracy, criminal justice, and constitutional law.2

This Essay fleshes out these points in five short Parts. Part I discusses fragmentation in sentencing as a case study from positive law, and Part II shows how fragmentation creates diverse points of influence and perspective in punishment. Part III translates those points to criminal justice writ large. Part IV unpacks some of the downsides of fragmentation, and Part V offers some suggestions for reforms that might do more to capture its benefits.

I. Sentencing

Let me begin with sentencing. Fragmentation occupies a crucial place in the modern constitutional law of sentencing, although scholarship has been slow to appreciate that. Like much criminal procedure scholarship, sentencing scholarship can be "clausebound."3 It treats the individual constitutional rights that govern sentencing as discrete and isolated provisions and minimizes the ways in which rights and structural considerations interact.

Those interactions have become more important as sentencing has become more imbalanced. The dominance of plea bargaining, the disappearance of jury trials, the decline of parole and executive clemency, the growth of mandatory minima, the rise of sentencing guidelines that tie judges' hands-these and other developments have shifted more power to prosecutors and have squeezed diverse views out of the system. As these structural imbalances have worsened, the Supreme Court's constitutional sentencing law has pushed back against them. To the extent the Court has intervened in sentencing over the last four decades, it frequently has done so in ways that have resisted (albeit not prevented) the march toward concentrated sentencing power. Take three illustrations from three distinct areas, each of which involves fragmentation in its own way.

A. The Law of Apprendi

Apprendi v. New Jersey resurrected juries as a check on the sentencing power of legislators, prosecutors, and judges under the Sixth Amendment. …

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