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


Susan F. Mandiberg


Lewis & Clark Law School

August 17, 2007

Lewis & Clark Law School Legal Studies Research Paper No. 2007-14
McGeorge Law Review, Forthcoming

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 right to jury trial when the legislature mandates the nature and weight of the sentencing factors; it does not violate that right 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 trial characteristic of the common-law tradition, in contrast to criminal trials in civil-law countries. The common-law tradition has long provided a trial 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 trial 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 trial in which the legislature does not have the last word.

Number of Pages in PDF File: 68

Keywords: sentencing, Booker, Blakely, judicial discretion, jury trial, inquisitorial, common law, determinate

JEL Classification: K1, K2, K3, K4

working papers series


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Date posted: August 18, 2007 ; Last revised: September 30, 2008

Suggested Citation

Mandiberg, Susan F., Why Sentencing by a Judge Fulfills the Right to Jury Trial: A Comparative Law Look at Blakely and Booker (August 17, 2007). Lewis & Clark Law School Legal Studies Research Paper No. 2007-14; McGeorge Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1007871 or http://dx.doi.org/10.2139/ssrn.1007871

Contact Information

Susan F. Mandiberg (Contact Author)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
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