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“Why?” Is a philosopher’s question, or maybe a civil trial lawyer’s. I’m neither. But I can take a stab at a few different kinds of an answer: https://twitter.com/rmfifthcircuit/status/1338313995984506880
1. Descriptivist would say: because Congress and the Supreme Court said so. For 6th Amend. purposes, the jury must find any fact (other than the fact of a prior conviction) if that fact is necessary (a) to make the sentence lawful; or (b) to set the statutory range of punishment
But if the jury verdict authorizes a sentence anywhere within the range of no prison up to 20 years in prison, the facts used to select the sentence within that range do t have the same constitutional protection.
2. The “legislative history” answer: remember, we were trying to avoid a situation where Lil Wayne, the famous artist, was treated better than Big Perm, ahem, Big Worm, And if we required verdicts before imposing the enhancements, that gives prosecutors and defense attys control
3. The judicial history answer: because Justice Ginsburg (May she rest in power / peace be upon her) joined the dissenters to make the remedial holding in Booker. Without that, we might have had a system where every one of those facts had to be proven to a jury
4. The realist answer: because if you do the wrong thing long enough, it becomes routine and accepted. Cognitive dissonance is a powerful thing, and members of the judiciary are not immune.
I’m no fan of this practice . But let me try to make a half-hearted defense: requiring the government to prove sentencing facts by a preponderance of the evidence is ostensibly *some* procedural protection. That’s supposed to be the same standard as a civil trial, right?
So if the alternative is: judge gets to just look into the defendant’s eyes and make a gut-reaction number pull, then perhaps this preponderance thing has something going for it
But, reader, would you be surprised to find out that a contested federal sentencing hearing does *not* appear to employ the same standards of proof as a civil bench trial?
In my part of the world, the initial sentencing calculations are made by the US Probation Officer, who consults police reports, talks to investigators on the phone, and maybe chats it up with the federal prosecutor too. The PO usually does interview defendant...
But not to find out the “facts.”
Then, in SOME circuits, the information in the PSR is PRESUMED reliable, and it is up to the defendant to rebut it.
(You won’t believe this one simple trick to turn unproven innuendo into judicially found facts!)
Then, in SOME circuits, the information in the PSR is PRESUMED reliable, and it is up to the defendant to rebut it.
(You won’t believe this one simple trick to turn unproven innuendo into judicially found facts!)
That shouldn’t be too hard, you say. If it is false, then that should be easy to prove. Right?
Wrong. The defense might not even KNOW who accused client of all those “extra” drug deals. If the Defendant takes the stand, he could get a longer sentence for obstruction of justice
Wrong. The defense might not even KNOW who accused client of all those “extra” drug deals. If the Defendant takes the stand, he could get a longer sentence for obstruction of justice
If he just says “that ain’t so,” he might lose his credit for acceptance of responsibility because he “frivolously contested relevant conduct”
You want to object to the “evidence” because it was illegally seized, inadmissible, rank speculation, or biased? Good luck with that, the rules of evidence don’t apply. Nor does the exclusionary rule.
This leads me to answer 5, the Booker Remedial Answer: it’s ok because the Guidelines are ONLY “advisory.” This is also the Beckles answer for why void-for-vagueness doesn’t apply to guidelines
