The title of this post is the title of this new article available via SSRN and authored by Barnett Harris and Christopher Merken. Here is its abstract:
Every year, federal judges sentence tens of thousands of criminal defendants to carceral terms. Although Congress requires sentences to be “sufficient, but not greater than necessary,” sentencing judges often rely, at least in part, on untested facts — facts that are not subject to the rigors of the adversarial process — because federal courts do not apply the Sixth Amendment’s Confrontation Clause protections at sentencing. Accordingly, prosecutors adduce evidence at sentencing which has neither been confronted nor admitted to support the Government’s sentencing recommendation. This practice raises serious constitutional concerns because it ignores both the original understanding of the Confrontation Clause and Supreme Court authority. Neither a federal statute (like 18 U.S.C. § 3553(a)) nor the United States Sentencing Commission’s Guidelines can authorize (or excuse) a Sixth Amendment violation. A detailed historical review of the Confrontation Clause and related Supreme Court precedent confirms that the prevalent use of uncharged and dismissed conduct to enhance a sentence violates the Sixth Amendment’s Confrontation Clause. As a result, 18 U.S.C. § 3553 and 18 U.S.C. § 3661 are unconstitutional to the extent that they conflict with the Sixth Amendment, and sentencing judges should decline to consider uncharged or dismissed conduct not subject to the protections the Sixth Amendment provides.