The Champion

January /February 2007 , Page 42 

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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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