Download this Paper Open PDF in Browser

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

68 Pages Posted: 18 Aug 2007 Last revised: 30 Sep 2008

Susan F. Mandiberg

Lewis & Clark Law School

Date Written: August 17, 2007


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.

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

JEL Classification: K1, K2, K3, K4

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: or

Susan F. Mandiberg (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

Paper statistics

Abstract Views