Wash, Rinse, Repeat

Prof. Wes Reber Porter

Threaten enhancementcoerce plea

Judges want discretion in sentencing

SENTENCING TUG-O-WAR

Legislators want to curb discretion and control outcomes

Rigid guidelines schemesMandatory minimumsSentencing enhancements

SENTENCING TUG-O-WAR

Hate the player …

but also hate the game

Sentencing enhancements

Sentencing enhancements

TOUGH ON INDIVIDUAL

RIGHTS

WHAT ARE SENTENCING ENHANCEMENTS?

As opposed to new crimes, law makers favor sentencing enhancement laws:

Facts or circumstances that, once “proven,” increase the punishment of the crime of conviction at sentencing

Facts or circumstances like: Criminal history Use of firearm Resulting injury Increase max. sentence “Motive enhancements”

Sentencing enhancements

The criminal justice system makes information available to the trial court so that it may exercise its discretion at sentencing. Information about:

the crime the defendant’s personal history his/her criminal history other mitigating/aggravating

circumstances

Procedural failings included:

Judicial determination Lesser burden of proof Discovery Ability to contest

Sentencing enhancements

Individual rights:

Due process? Right to jury trial? Notice? Fairness?

Sentencing enhancements

SUPREME COURT ON ENHANCEMENTS

S. Ct. . . . legislatively-created sent.

enhancements affect the rights of the accused

therefore, we should require enhancements be. . .

found by the jury at trial found by beyond a reasonable

doubt

Prove as an element (BRD)

or

Discretionary sentencing

Sentencing enhancements

S. Ct. decisions (2004-05):

Federal solution …

Sentencing enhancements

Federal solution:Prove as an element (BRD)

or

Discretionary sentencing

Sentencing enhancements

S. Ct. decisions (2004-05):

Federal solution …

States solution …

Sentencing enhancements

States’ solution:Prove as an element (BRD)

or

Discretionary sentencing

Sentencing enhancements

Def’t gets jury trial on the enhancement . . .

. . . the SAME TRIAL . . .

. . . at the SAME TIME . . .

. . . before the SAME JURY . . .

. . . as the underlying crime!!

PROVING ENHANCEMENTS & BIFURCATION

Death penalty Asset forfeiture Insanity defense

Bifurcation?

Bifurcation Evidentiary motions “all or nothing” trial

Appellate review

California Gang Enhancement

Hair pulling moment?!?

trial

Motive enhancements

Plea bargain

ingSentenci

ng

What can we do about this:

Local rules changes Change the plea colloquy Enact mandatory

bifurcation Defendant opt in/out

Recommendations

I enjoyed my right to a

unconstitutional, prejudicial &

unfair

Jury trial