Thursday, March 15, 2018
Carissa Byrne Hessick and William W. Berry (University of North Carolina School of Law and University of Mississippi School of Law) have posted Sixth Amendment Sentencing after Hurst (UCLA Law Review, Vol. 66, 2018 Forthcoming) on SSRN. Here is the abstract:
The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized. At times the doctrine has expanded—invalidating sentencing practices across the country—and at times it has contracted—allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt. This reading invalidates several state capital sentencing systems and several non-capital systems, and it would require dramatic changes to federal sentencing as well.