Jennifer Lee Barrow, The Return of the Jury: Conduct-Based Sentencing for Recidivism, 2022 Wis. L. Rev. 786 (2022).
Abstract
Under current law, people charged under recidivist statutes are not entitled to have a jury assess their prior convictions. But the fact of a prior conviction should be proved to a jury beyond a reasonable doubt. This change would allow courts to use a conduct-based approach instead of a categorical approach while still complying with the Sixth Amendment.
When applying recidivist statutes such as the Armed Career Criminal Act (ACCA), the Supreme Court requires that courts use “a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” The categorical approach bewilders judges, clogs court dockets, and frustrates the goals underlying recidivist statutes, such as consistency, deterrence, and incapacitation of the most dangerous criminals.
This Article builds on scholarship that evaluates alternatives to the categorical approach and explains why a conduct-based approach—focusing on the real-world facts of the prior offense—adjudicated by juries using a reasonable doubt standard is a better approach to recidivist, mandatory- minimum statutes such as the ACCA.
