Why Sentencing by a Judge Satisfies the Right to Jury Trial: A Comparative Law Look at Blakely and Booker
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Why Sentencing by a Judge Satisfies the Right to Jury
Trial: A Comparative Law Look at Blakely and Booker
Susan F. Mandiberg*
I. INTRODUCTION
In the last quarter of the twentieth century, Congress and many state
legislatures adopted mandatory, determinate sentencing systems. These systems
continued the traditional practice of sentencing by judges, but severely restricted
the ability to customize the sentence to individual circumstances. Removing such
judicial discretion was a major step in advancing punishment goals and achieving
more uniform and predictable sentencing. Nevertheless, in a series of cases
decided between 2004 and 2007, the Supreme Court held that several of these
schemes were unconstitutional. The Court declared that [o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.' Nevertheless, the Court did not mandate jury fact finding for
all sentencing decisions. Legislatures can continue the practice of judicial
sentencing, but only if judges have substantial discretion to find facts, weigh
them, and choose a sentence within the range set by the jury's verdict. Such a
system of judicial sentencing satisfies a defendant's Sixth Amendment right to
jury trial.
This conclusion is puzzling. When the legislature authorizes a range of
punishment for a particular crime, a jury provides protection at the upper end
through its ability to acquit the defendant. However, even when convicted, most
defendants are not in danger of receiving the maximum sentence. On the
contrary, for most people convicted of a crime, the facts that matter are those that
result in some lesser sentence, and those facts may constitutionally be found by a
judge. But why should this be so? If jury fact finding is essential to establishing
the maximum sentence, why is it not also essential to establishing the sentence
that is actually imposed? Why does sentencing by a judge satisfy the Sixth
Amendment right to jury trial?
This article suggests that the answer lies in the nature of the judge's role in
the common law jury trial. The common law afforded the judge broad discretion
to thwart the directives of the legislature and the desires of the prosecution, and
this independence extended to sentencing. It is true that mandatory sentences
existed in England, in the colonies, and in nineteenth-century United States.
However, criminal trial courts had a variety of discretionary mechanisms to avoid
* Professor of Law, Lewis & Clark Law School. J.D., 1975, University of California at Berkeley (Boalt
Hall). I am grateful for the helpful insights of Michael Vitiello, Stefano Maffei, and colleagues who participated
in the Lewis & Clark Law School faculty colloquium, and for the invaluable research assistance of Sarah
Koteen, Jean Kallage Sinnott, and Mark Strandberg. Any errors are, of course, my own.
1. Apprendi v. New Jersey, 530 U.S. 466,490 (2000).](ViewImageLocal?handle=hein.journals/mcglr40&div=8&collection=&method=preview&ext=.png&size=3)
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Why Sentencing by a Judge Satisfies the Right to Jury Trial: A Comparative Law Look at Blakely and Booker
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