This encyclopedia entry summarizes the pendulum-swings that led the Supreme Court in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker to limit judges' ability to find facts at sentencing. Paradoxically, the much-criticized Federal Sentencing Guidelines have survived; a line of cases that began as an effort to restore juries' role has turned into a guarantor of judicial discretion; and the doctrine has quickly moved far from its Sixth Amendment roots to a policy balancing test. The Court could instead have pursued a different, more fruitful path. The Court did not have to force sentencing factors into the same constitutional boxes as elements of crimes, nor try to divine some nonexistent clear rule in the sparse text and history of the Sixth Amendment. Instead, the Court could have explicitly weighed the due process need for regulating the under-regulated sentencing phase. This approach would have led to more flexible, sensible weighing of the need for confrontation, cross-examination, rules of evidence, double jeopardy, and proof by a preponderance or clear and convincing evidence at sentencing.
Bibas, Stephanos, "Judicial Fact-Finding at Sentencing" (2008). Faculty Scholarship. 252.