Judicial fact-finding and sentence enhancements in a world of guilty pleas

Criminal procedure is, basically, a subset of constitutional law,(1) according to the reigning academic orthodoxy. Preoccupied with these lofty pretensions, criminal procedure scholars do not deign to integrate their field with its siblings, substantive criminal law and especially sentencing. Furthermore, the reigning academic orthodoxy is preoccupied with jury trials, making them the center of attention and devoting countless articles to them.(2) This Article challenges and undermines the orthodox approach, exposing its inadequacies. The vehicle for this critique is a case study of an academic proposal that the Supreme Court recently made into law. In recent years, many commentators have proposed variants of what I call "the elements rule." The elements rule holds that any fact that increases a defendant's statutory maximum sentence must be an element of the offense. These facts must therefore be charged in an indictment and proved to a jury beyond a reasonable doubt.(3).