Elements, Sentencing Factors, and the Right to a Jury Trial: An Analysis of Legislative Power and Its Limits

A criminal defendant's sentence is determined not only by facts that must be proven to a jury at trial ("elements" of an offense), but also by facts proven to a judge at a sentencing hearing ("sentencing factors"). Perhaps surprisingly, sentencing factors, such as how a firearm was used, may account for a greater proportion of a defendant's term of imprisonment than elements of the offense. This is worrisome because sentencing hearings are procedurally relaxed in comparison to trials and because the government does not include sentencing factors in its indictment, which means a defendant cannot predict how sentencing factors could impact his or her length of imprisonment.