Over at Sentencing Law and Policy, Douglas Berman takes a look at a recent federal case:
I cannot help but wonder if the authors of the Bill of Rights would have been even more troubled by the ugly way federal criminal power is exercised here. Rather than having state authorities indict and try the defendant for all his local crimes, the feds come in, secure a conviction through a broad regulatory law, and then obtain a long prison sentence by “proving” state crimes to a federal district judge (by a preponderance of evidence) at sentencing. Thanks to modern criminal justice realities, federal prosecutors can easily make a sentencing end‐run around most of the constitutional criminal procedure rules the Framers put into the Fifth and Sixth Amendments.
It’s not just one case. This is a trend in the federal courts. In my new book, In the Name of Justice, I identify many other ways in which the government is going over, under, and around the Bill of Rights.