“Calling Balls and Three Strikes”

The title of this post is the title of this new article now available via SSRN and authored by Tobie Smith.  Here is its abstract:

The Supreme Court has revitalized the jury’s role in criminal sentencing over the past quarter century, reaffirming that the Sixth Amendment right to trial by jury extends to factfinding that increases the punishment range for a conviction.  But one class of sentencing findings — those related to a defendant’s criminal history — has been excluded. The Court has upheld an exception to the jury right where the fact to be found is whether a defendant has a prior conviction. Relying on that prior-conviction exception, many jurisdictions have continued to allow judges to increase the possible sentence based on their own preponderance-of-the-evidence findings about disputed details of defendants’ criminal histories, even where the evidence is ambiguous, contradictory, or unconvincing.

The prior-conviction exception is a subject of continuing criticism from legal scholars and a substantial segment of the current Court. Yet even as the Court has declined to revisit those precedents, it has in recent years made clear that the exception is narrow — too narrow, in fact, to allow judges to make many of the factual determinations that recidivism enhancements require.

This article argues that today recidivism laws across jurisdictions often require findings beyond the mere fact of a prior conviction, and therefore constitutionally require a jury.  Those laws were enacted, however, with the expectation that judges could apply them in summary sentencing proceedings. Involving juries presents new challenges for prosecutors, defense attorneys, and courts, because jury trials about past offenses — sometimes distant in time and place — raise unfamiliar issues of proof, competency of evidence, and procedural fairness.  Such challenges, and high stakes like mandatory minimum prison terms and increased statutory maximums, provide incentives for defendants to contest enhancements even as criminal trials are vanishingly rare.

Fully realizing the possibility of recidivism jury trials will require procedural accommodations, most notably bifurcated proceedings that ensure evidence of prior crimes does not taint the jury’s consideration of new criminal allegations. And the costs of recidivism trials could prompt pushback by courts, prosecutors, and legislators, raising the possibility that spillover effects from these legal developments could significantly reshape sentencing laws and procedures in the United States.  Procedural justice for criminal defendants will be promoted by restoring the jury’s role in deciding factual disputes under recidivism enhancements, but it is not yet assured that justice in substantive outcomes follows.