Reconciling the Booker Conflict: A Substantive Sixth Amendment in a Real Offense Sentencing System

Authors

Bertrall L. Ross II, Ninth Circuit Court of Appeals

Abstract

The article examines the tension between the Sixth Amendment right to a jury trial and real offense sentencing, arguing that this conflict is not inevitable and can be reconciled. It advocates for a system where the jury plays a substantive role in checking judicial discretion during sentencing, ensuring constitutional protections while allowing judges to individualize sentences based on real offense factors. The proposed framework moves beyond the separation of functions model, integrating the jury into sentencing decisions to balance retributive punishment with constitutional safeguards.

Disciplines

Constitutional Law | Criminal Law | Criminal Procedure | Law

Recommended Citation

Bertrall L. Ross II, Reconciling the Booker Conflict: A Substantive Sixth Amendment in a Real Offense Sentencing System, 4 Cardozo Pub. L. Pol’y & Ethics J. 725 (2006).
Available at: https://larc.cardozo.yu.edu/cplpej/vol4/iss3/6