1. Wash, Rinse, Repeat Prof. Wes Reber Porter Threaten enhancement coerce plea

2. Judges want discretion in sentencing SENTENCING TUG-O-WAR Legislators want to curb discretion and control outcomes

3. Rigid guidelines schemes Mandatory minimums Sentencing enhancements SENTENCING TUG-O-WAR

4. Hate the player … but also hate the game Sentencing enhancements

6. TOUGH ON INDIVIDUAL RIGHTS

7. WHAT ARE SENTENCING ENHANCEMENTS? As opposed to new crimes, law makers favor sentencing enhancement laws: Facts or circumstances that, once “proven,” increase the punishment of the crime of conviction at sentencing

8. Facts or circumstances like:  Criminal history  Use of firearm  Resulting injury  Increase max. sentence  “Motive enhancements” Sentencing enhancements

9. The criminal justice system makes information available to the trial court so that it may exercise its discretion at sentencing. Information about:  the crime  the defendant’s personal history  his/her criminal history  other mitigating/aggravating circumstances

10. Procedural failings included:  Judicial determination  Lesser burden of proof  Discovery  Ability to contest Sentencing enhancements

11. Individual rights:  Due process?  Right to jury trial?  Notice? Fairness? Sentencing enhancements

14. SUPREME COURT ON ENHANCEMENTS S. Ct....  l legislatively-created sent. enhancements  affect the rights of the accused therefore, we should require enhancements be...  found by the jury at trial  f found by beyond a reasonable doubt

15. Prove as an element (BRD) or Discretionary sentencing Sentencing enhancements

16. S. Ct. decisions ( 2004-05):  Federal solution … Sentencing enhancements

17. Federal solution: Prove as an element (BRD) or Discretionary sentencing Sentencing enhancements

18. S. Ct. decisions ( 2004-05):  Federal solution …  States solution … Sentencing enhancements

19. States’ solution: Prove as an element (BRD) or Discretionary sentencing Sentencing enhancements

20. Def’t gets jury trial on the enhancement...... the SAME TRIAL...... at the SAME TIME...... before the SAME JURY...... as the underlying crime!! PROVING ENHANCEMENTS & BIFURCATION

22.  Death penalty  Asset forfeiture  Insanity defense Bifurcation?

23. Bifurcation Evidentiary motions “all or nothing” trial Appellate review California Gang Enhancement

25. Hair pulling moment ?!?

26. trial Motive enhancements Plea bargaining Sentencing

27. What can we do about this:  Local rules changes  Change the plea colloquy  Enact mandatory bifurcation  Defendant opt in/out Recommendations

28. I enjoyed my right to a unconstitutional, prejudicial & unfair Jury trial