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Statutory' Enhancement by Judicial Notice of Danger: Who Needs Legislators or Jurors?
By William R. Maynard
There are at least three provisions in federal sentence enhancement
statutes that judges cannot apply without simultaneously finding facts
and making law — thereby violating multiple constitutional safeguards. I
will call these three provisions “judicial danger assessments” for
reasons explained below.
In the provisions, Congress provides that (1) any dangerous prior
offense supports statutory sentence enhancement, and (2) courts decide
which categories of prior offenses are dangerous. Judges decide based on
their subjective opinions of an offense’s inherent (i.e., categorical)
dangers. In the process they overwrite jury verdicts and statutory
elements to add “danger” to the offense. Danger becomes a sort of
quasi-element — a categorical “sentencing factor” — by judicial fiat, as
a matter of law.
Enhancement by Judicial Notice
This is a reasoning process that legal scholars call “judicial notice of
legislative facts.” It conflates fact and law questions in
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