Threaten
enhancement
Wash,
coerce
plea
Rinse,
Repeat
Prof. Wes Reber Porter
SENTENCING TUG-O-WAR
Judges want
discretion in
sentencing
Legislators want to
curb discretion and
control outcomes
SENTENCING TUG-O-WAR
Rigid guidelines schemes
Mandatory minimums
Sentencing enhancements
Sentencing enhancements
Hate the player …
but also hate the game
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
Sentencing enhancements
Facts or circumstances like:





Criminal history
Use of firearm
Resulting injury
Increase max. sentence
“Motive 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
Sentencing enhancements
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?
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
Sentencing enhancements
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
PROVING ENHANCEMENTS
& BIFURCATION
Def ’t gets jury trial on the enhancement . . .
. . . the SAME TRIAL . . .
. . . at the SAME TIME . . .
. . . before the SAME JURY . . .
. . . as the underlying crime!!
Bifurcation?
 Death penalty
 Asset forfeiture
 Insanity defense
California Gang Enhancement
 Bifurcation
 Evidentiary motions
 “all or nothing” trial
 Appellate review
Hair pulling moment?
Motive enhancements
Plea
bargaining
trial
Sentencing
Recommendations
What can we do about this:

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Local rules changes
Change the plea colloquy
Enact mandatory bifurcation
Defendant opt in/out
I enjoyed my
right to a
unconstitutional,
prejudicial
& unfair
Jury trial