Tuesday, July 19, 2005

Sentence enhancement based on prior criminal record still not a sentencing issue for the jury

In U.S. v. Cheek, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judges Williams and Shedd, redeclared that there is no constitutional right to have a jury decide whether the defendant's criminal record warrants an enhancement of his criminal sentence.

This is not to suggest that the defendant in the case actually wanted the jury to hear about his criminal record. In the Commonwealth, through the beauty of bifurcation, the jury does get to hear about the defendant's record in the sentencing phase, and for that reason, most plead guilty.

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