Initial musings on the Supreme Court’s originalist turn and sentencing issues

The Supreme Court earlier this month kicked off its latest season, October Term 2024, and sentencing fans may be especially interested in two federal cases to be argued in the coming months, Delligatti v. US and Hewitt v. US.  Both matters involve statutory interpretation issues, and advocates for the defendants in these cases invoke the “rule of lenity” in their arguments for their preferred statutory interpretation.

Reviewing the briefs in Delligatti and Hewitt got me to wondering if the rule of lenity should be considered a constitutional doctrine and how it might be linked to originalist views on our Constitution.   Interestingly, some of the Supreme Court’s most prominent originalists have been notable proponents of the rule.  The late Justice Antonin Scalia, in the words of one law professor, “revitalize[d] the rule of lenity,” and Justice Neil Gorsuch has written opinions championing the rule as “a means for upholding the Constitution’s commitments to due process and the separation of powers.”  And yet other avowed originalists now on the Supreme Court, ranging from Justice Samuel Alito to Justice Brett Kavanaugh to Justice Clarence Thomas, tend to give the rule of lenity short shrift.    

It will be interesting to see if the rule of lenity commands any attention in the coming oral arguments and eventual opinions in Delligatti and Hewitt.  And my musings about that doctrine’s relation to the Constitution and originalist philosophies is part of an effort, at the start of a budding scholarly project, to reflect on what constitutional principles in general – and originalist approaches to the Constitution in particular – ought to mean for modern sentencing systems and doctrines.  With many current Justices professing originalist commitments, it is timely and important to consider just what originalism might entail generally for various criminal law issues and doctrines (and this great recent Inquest piece by Cristian Farias engages on this broad front).  In particular, what originalism could and should mean for modern sentencing laws and practices especially intrigues and puzzles me.

Of course, many modern sentencing systems have already been impacted by rulings shaped by originalist approaches to the Sixth Amendment’s jury trial right.  The Supreme Court’s landmark rulings in Apprendi v. New Jersey, Blakely v. Washington and United States v. Booker included many references to Founding era doctrines and sources.  Justices Scalia and Thomas, in particular, stressed in their opinions in these cases that prohibitions on judicial factfinding to increase sentencing ranges vindicated “the Framers’ paradigm for criminal justice.”   Similarly, just this past Term in Erlinger v. United States, Justice Gorsuch stressed the “original meaning of the Fifth and Sixth Amendments” in his opinion for the Court requiring jury factfinding to support certain applications of the Armed Career Criminal Act’s mandatory minimum sentences.

But many modern sentencing doctrines and practices seem still in tension with a robust originalist approach to the Sixth Amendment.  For example, existing constitutional law places no clear limits on judicial discretion to increase sentences based on so-called “acquitted conduct,” but doing so would seem to undermine, in the words of Justice Scalia for the Court in Blakely, the Framers’ expectation that the jury would “function as circuitbreaker in the State’s machinery of justice.”  Similarly, current law precludes juries from being informed about the sentencing consequences of their verdicts; but there are serious arguments (which were pursued unsuccessfully in a recent federal case) that an originalist understanding of the jury trial right should allow jury instructions on sentencing ranges and on jurors’ authority to acquit due to concerns about the law’s severity.  Further, various doctrines related to parole and community supervision processes do not fit comfortably with a robust commitment to jury authority; in a recent article, Professor Jacob Schuman has argued that an original understanding would provide for a jury trial right in revocation of supervised release in the federal system.

Expanding our field of vision, many other constitutional provisions that certainly could impact modern sentencing processes and outcomes have not (yet) been subject to rigorous originalist analyses or application.  Most obviously, the Fifth Amendment’s Due Process Clause has been interpreted to permit all sorts of informal sentencing procedures, including reduced burdens of proof and few evidentiary rules, both at initial sentencing and in parole, probation and resentencing proceedings.  Notably, the key precedent first upholding lax sentencing procedures, the 1949 case of Williams v. New York, repeatedly emphasized “modern” sentencing reforms to justify dispensing with traditional constitutional protections at sentencing.  The court in Williams stressed “modern concepts individualizing punishment” and "modern penological procedural policies" and "modern changes in the treatment of offenders" would be undermined by “rigid adherence to restrictive rules of evidence properly applicable to the trial.”  In other words, embrace of modern sentencing polices and practices, rather than serious consideration of originalist methods, has largely defined and driven constitutional sentencing doctrines for three-quarters of a century and through the entire modrn era of rising prison populations.

Of course, even the lax processes typically used in most in-court sentencing proceedings are more rigorous and transparent than the hidden processes that typically comprise modern plea bargaining.  Plea bargains formalized with plea agreements were seemingly unknown at the time of the drafting of the Constitution; it is not obvious that waivers of a jury trial and a host of other rights, which are common in modern plea agreements, would be in keeping with an originalist philosophy.   And while many have debated, as a matter of policy, whether and how much of a sentence reduction is appropriate in the sentencing process simply for pleading guilty, the Framers likely would be troubled by the significant “trial penalties” that are now a common feature of modern criminal case processing.  

Last but certainly not least, though the Eighth Amendment has been subject to originalist analysis in some cases by Justices Scalia and Thomas, application of the Cruel and Unusual Punishments Clause has long been built around an “evolving standards of decency” test that plainly reflects a “living Constitution” philosophy.  So built, the modern Eighth Amendment functions to restrict greatly the punishment of death while placing very few limits on lengthy prison terms or other forms of harsh punishment.  Arguably, an originalist Eighth Amendment would flip these realities around with fewer capital punishment restrictions and perhaps considerably more limits on other forms of punishment.  (Professor John Stinneford, for example, has argued that the original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of lengthy prison sentences for certain offenses, long-term solitary confinement, and certain prison conditions.)

I have titled this post “initial musings” not only because I know there is so much more to say on these topics, but especially because I am quite humble about my own understanding of on-going debates over originalist approaches to the Constitution.  But, because I sincerely believe there is still much worthwhile to learn about both legal history and modern sentencing systems, I hope these musings might help engender research and discussions that could improve our understanding of historical sentencing practices and improve our development of modern sentencing policies.