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In this article, Professor Herrmann argues that the due process protections of a criminal trial should apply to aggravating factors that under current “maximum-enhancing statutes” allow judges to impose lengthier punishments in the sentencing phase. Part I considers the Supreme Court's rationale for refusing to apply full due process safeguards to all types of sentencing schemes. This background will reveal the unique quality of maximum-enhancing statutes and establish why the due process protections of a criminal trial should apply to sentencing under maximum-enhancing statutes. Part I, therefore, undertakes to explain courts' rationales to deny criminal defendants full criminal due process under discretionary sentencing, mandatory minimum sentencing, and guideline sentencing. Part II focuses on maximum-enhancing statutes. It isolates and analyzes the courts' rationales for denying criminal defendants full criminal due process under them. Part II argues that no convincing rationale justifies reduced due process for minimum-enhancing statutes, no matter what one's views of the due process reasoning underlying other sentencing structures. Part III will argue that, if courts applied full criminal due process protection to maximum-enhancing factors, it is unlikely that legislatures would try to avoid the safeguards by artful drafting of criminal statutes. The Article will conclude that courts should apply the full protections appropriate to a criminal trial to findings that enhance a maximum sentence.


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8 Sep 2022
3.13 MB



  • Subject
    • Criminal Law

    • Jurisprudence

    • Legislation

  • Journal title
    • Buffalo Law Review

  • Volume
    • 46

  • Pagination
    • 175-216

  • Date submitted

    8 September 2022

  • Keywords