Rita and the State of the Sixth Amendment


Publish Date:
June 22, 2007
Publication Title:
Blog Postings
  • Jeffrey Fisher, Rita and the State of the Sixth Amendment, SCOTUSblog, June 22, 2007.


Professor Jeffrey Fisher, who appeared on the NACDL amicus brief supporting Rita (Rita v. U.S.) and Claiborne (Claiborne v. U.S.), wrote about the case for SCOTUSblog:

I don’t have much to add to the predictive debate over whether district courts will opt for guideline sentences more or less often after Rita than they did before. On the one hand, some courts may see Rita as providing something of a safe harbor. On the other hand, some may notice that the Court takes pains to emphasize that waters should be calm outside the harbor as well, and thus may be emboldened to issue more non-guidelines sentences. Time will tell.

But I do want to take issue, respectfully, with those who suggest that Justice Breyer is winning the war over the Sixth Amendment right to jury trial. For starters, that certainly is not true in the states, where the majority of criminal defendants in this country are sentenced. Almost all of the states forced to react to the Apprendi line of cases have decided to engraft the jury trial right onto their existing structured sentencing systems.