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- Title
THE SIXTH AND EIGHTH AMENDMENT NEXUS AND THE FUTURE OF MANDATORY SENTENCES.
- Authors
BERRY III, WILLIAM W.
- Abstract
In some respects, the Sixth and Eighth Amendments have followed parallel tracks in their modern development. In both contexts, statutory schemes emerged from a concern related to arbitrary and inconsistent sentencing outcomes. These statutory approaches sought to remedy the sentencing problem by imposing mandatory sentencing requirements. The Court subsequently found the mandatory approaches to be unconstitutional. Even so, in both contexts, mandatory sentencing outcomes persist. Part of the explanation for this lies in a judicial fear of sentencing discretion. Part of the explanation may also relate to a hesitancy to use the Constitution to restrict majoritarian legislative power. In light of this descriptive account, this Article advocates for the loosening of the vestiges of mandatory sentencing schemes in favor of increased sentencing discretion in individual cases through constitutional expansion. Specifically, the Article seeks to rebalance state and federal criminal sentencing decisions in light of individualized circumstances related to the purposes of punishment. In Part I, the Article tells the parallel stories of the Sixth and Eighth Amendments and the constitutional limits placed on mandatory sentencing. Part II explores how and why elements of mandatory sentencing still persist. Finally, in Part III, the Article advocates for the minimization and, in some cases, elimination of mandatory sentencing schemes.
- Subjects
UNITED States; MANDATORY sentences; SENTENCING guidelines (Criminal procedure); RIGHT to trial by jury; UNITED States. Constitution. 6th Amendment; UNITED States. Constitution. 8th Amendment
- Publication
North Carolina Law Review, 2021, Vol 99, Issue 5, p1311
- ISSN
0029-2524
- Publication type
Article