Monday, September 5, 2016

Why shouldn't confrontation rights apply at sentencing?

Earlier this summer, a panel of the Tenth Circuit declined a pro se defendant's invitation to overrule 10-year-old precedent reiterating that "the Confrontation Clause does not apply at sentencing," and holding that "Crawford does not require otherwise." The panel did not address the merits of the issue, but rather simply noted that one panel may not overrule another panel "absent en banc reconsideration or a superseding contrary opinion by the Supreme Court."

Does the issue have merit? The Sixth Amendment itself does not speak of confrontation as a trial-only right. And it appears to grant equal importance to confrontation and counsel---a right that we have long understood applies at sentencing:

The clauses are identically structured. So why the different treatment? The rule that confrontation is not a sentencing right can be traced back to a 1949 Supreme Court case that was decided in a world of jury trials and indeterminate sentencing. The sentencing landscape today is utterly different. As anyone who has worked in the 21st century criminal-justice system well knows, "[f]or most felony defendants, the adversarial process begins at sentencing."

That observation---made by Idaho College of Law Professor Shaakirrah R. Sanders---and the structure of the Sixth Amendment's text are at the heart of a new article by Sanders titled The Value of Confrontation as a Felony Sentencing Right. This article is your road map to claiming a confrontation right at sentencing. Read it. Use it. Win.

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