The Sixth Amendment and Criminal Sentencing

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants

The Sixth Amendment and Criminal Sentencing

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants

Debunking Claims of Over-Federalization of Criminal Law

Virtually all criminal law scholars bemoan the over-federalization of criminal law. They are joined by judges, bar review associations, and special interest groups. Conventional wisdom has it that our federal congressmen and senators curry favor with their constituents by making a federal case out of any conceivable bad behavior. On the other hand, a lawmaker who votes to repeal a criminal law may be faced with accusations that she is soft on crime. Thus, politics (rather than reasoned judgment) has led to the passage of upwards of approximately 4,500 federal criminal prohibitions, as many as half of these passed since 1970