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Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Michigan Law Review
Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
All Faculty Scholarship
Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …
Can We Calculate Fairness And Reasonableness? Determining What Satisfies The Fair Cross-Section Requirement Of The Sixth Amendment, Colleen P. Fitzharris
Can We Calculate Fairness And Reasonableness? Determining What Satisfies The Fair Cross-Section Requirement Of The Sixth Amendment, Colleen P. Fitzharris
Michigan Law Review
The Impartial Jury Clause of the Sixth Amendment requires that the venire from which the state and the defendant draw a twelve-person petit jury be a fair cross-section of the community. The Supreme Court announced a three-prong test in Duren v. Missouri to help courts determine whether there has been a Sixth Amendment violation: (1) whether a distinctive group in the community was excluded; (2) whether the venire was not a fair and reasonable representation of the county population as a whole; and (3) whether that underrepresentation was the result of systematic exclusion. When evaluating the second prong, courts routinely …
Straightforward On Its Face But Mindbending In Its Application: Juror Concurrence In Criminal Trials, Stephen Ehrlich
Straightforward On Its Face But Mindbending In Its Application: Juror Concurrence In Criminal Trials, Stephen Ehrlich
Cleveland State Law Review
Ever since In re Winship in 1970, it is well settled that the Due Process Clause requires a jury to find “proof beyond a reasonable doubt of every fact necessary to constitute the crime.” But as axiomatic as this holding may seem, the distinction between necessary facts of a crime and “mere means” of its commission has confounded courts for years. The Supreme Court, recognizing the need to re-address such an important issue, attempted to provide some guidance in this area through two landmark cases decided just before the turn of the twenty first century: Schad v. Arizona and Richardson …