What Makes Sentencing Facts Controversial?: Four Problems Obscured by One Solution

In the wake of the Supreme Court's decision in Apprendi v. New Jersey, commentators and judges have proposed a variety of additional limits on the permitted bounds of fact-finding at sentencing. Jurists and academics have commonly assumed that objections to the fact-finding role of the sentencing judge are essentially unitary. They argue over whether certain sentencing factors are really offense elements. This diagnosis obscures as much as it reveals. My article argues that the impetus to recast more and more sentencing factors as offense elements masks a cluster of different-and distinct-dissatisfactions with the sentencing process. The confluence of four separate concerns about sentencing motivate the current drive for reform: (1) judges impose strict liability for aggravating circumstances; (2) they increase sanctions for mental states of heightened culpability (e.g., specific intent, racial animus); (3) they punish for uncharged conduct; and (4) they take into account acquitted conduct. Since there is not one problem that reformers need to confront, but several, no unitary solution can adequately address these different concerns. Disaggregating the component problems is the first step toward offering a remedy. This article suggests possible responses to each of the four problems. In three of the four instances, the article concludes, the most effective solution does not implicate the distinction between offense elements and sentencing factors.