Why Sentencing by a Judge Fulfills the Right to Jury Trial: A Comparative Law Look at Blakely and Booker

Abstract

This article examines the basis for the United States Supreme Court's invalidation of twenty-five years of sentencing reform by state legislatures and Congress. Sentencing by a judge violates the Sixth Amendment to jury when the legislature mandates the nature and weight of the sentencing factors; it does not violate that when the judge has discretion within a range set by the legislature. The Court is using right to jury trial as a shorthand for the type of characteristic of the common-law tradition, in contrast to criminal trials in civil-law countries. The common-law tradition has long provided a in which the judge and jury as a unit act as a safety valve against harsh and overzealous legislative mandates. This model contrasts with the civil-law tradition, in which the court is essentially an administrative arm of the legislature. The article explores the differences along a variety of parameters including court structure; socialization of judges; and mechanisms controlling both fact finding and legal decision making, both generally and at sentencing. It concludes that the Court's sentencing decisions have reestablished a basic characteristic of our common-law tradition eliminated by the determinate sentencing schemes: a in which the legislature does not have the last word.