Is a defendant entitled to a jury trial on factual determinations that could increase the sentence?

Since at least the middle of the twentieth century, sentencing in most jurisdictions in most cases has been a task for judges, not for juries (although there are significant exceptions: most death penalty statutes require jury sentencing, and six states have jury sentencing in non-death-penalty cases—Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia). The Supreme Court has never indicated—in general—that sentencing by judges violates the Sixth Amendment right to a jury trial. However, a defendant has a constitutional right to have every element of a crime proven to a jury beyond a reasonable doubt. In a line of cases beginning in 1986, the Court has addressed the following issue: when is a fact that can enhance a defendant’s sentence an element of the crime on which the defendant is entitled to a jury determination, as opposed to a mere sentencing consideration that can be determined by a judge?

The evolution of sentencing laws provides an important backdrop for this line of cases. Prior to the late twentieth century, most jurisdictions had “indeterminate” sentencing laws. Under such a system, the legislature set a wide range of possible sentences for a crime (for example, 5 to 15 years for first-degree burglary), and the judge decided the sentence within those limits after hearing whatever evidence and arguments the parties presented. Indeterminate sentencing resulted in large variations among sentences for similarly-situated defendants because each judge weighed sentencing factors differently. Beginning around 1980, many jurisdictions concluded that their sentencing laws should be made more “determinate” to make sentences more consistent. Generally, the laws were amended to 1) reduce the range of possible sentences for the crime (for example, 6 to 8 years for first-degree burglary, rather than 5 to 15), 2) establish a presumptive sentence within that range, and 3) require the judge to find particular facts justifying sentences higher or lower than the presumptive sentence. These new determinate sentencing laws raised a Sixth Amendment question: whether a defendant is entitled to a jury determination of a particular fact that could result in a harsher than normal sentence.

This issue concerning the right to a jury trial on such “sentence enhancement” facts has proven controversial within the Court. Most of the key decisions have been decided by 5-to-4 votes, and the constitutional line drawn by the Court is subtle and evolving. What is clear, though, is that these cases have had a substantial—although not yet completely predictable—impact on thousands of criminal cases and have called the Federal Sentencing Guidelines and many state sentencing laws into question. To read more about this line of cases, click here.

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