Confrontation at sentencing?

Updated:

A new article Harris & Merken, Confronting Uncharged Conduct. 48 Univ. Hawaii L. Rev. (forthcoming 2025)

Every year, federal judges sentence tens of thousands of criminal defendants to carceral terms. Although Congress requires sentences to be “sufficient, but not greater than necessary,” sentencing judges often rely, at least in part, on untested facts – facts that are not subject to the rigors of the adversarial process – because federal courts do not apply the Sixth Amendment’s Confrontation Clause protections at sentencing. Accordingly, prosecutors adduce evidence at sentencing which has neither been confronted nor admitted to support the Government’s sentencing recommendation. This practice raises serious constitutional concerns because it ignores both the original understanding of the Confrontation Clause and Supreme Court authority. Neither a federal statute (like 18 U.S.C. § 3553(a)) nor the United States Sentencing Commission’s Guidelines can authorize (or excuse) a Sixth Amendment violation. A detailed historical review of the Confrontation Clause and related Supreme Court precedent confirms that the prevalent use of uncharged and dismissed conduct to enhance a sentence violates the Sixth Amendment’s Confrontation Clause. As a result, 18 U.S.C. § 3553 and 18 U.S.C. § 3661 are unconstitutional to the extent that they conflict with the Sixth Amendment, and sentencing judges should decline to consider uncharged or dismissed conduct not subject to the protections the Sixth Amendment provides.

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In United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001) the CAAF holds there is no right to confrontation at sentencing under the Sixth Amendment, but the Fifth Amendment Due Process Clause applied to ensure a fair "trial" in reliance on Williams v. New York, 337 U.S. 241 (1949).

An article by Josiah Rutledge, CONFRONTATION AT SENTENCING, 94 GEO. WASH. L. REV. ___ (forthcoming 2026), suggests why the Sixth may apply at sentencing.

In modern criminal prosecutions, the determination of guilt is often little more than a formality. It sets the stage for the main event: sentencing. Sentencing, however, is driven by facts about both the offense and the offender. Years of imprisonment may hinge on those facts, making it imperative to determine them reliably. Yet courts routinely reject defendants’ requests to employ the Constitution’s prescribed methods of ensuring reliability: confrontation and cross-examination. That practice rests on a simple premise: the Sixth Amendment’s Confrontation Clause does not apply to sentencing.

​Taking a textual, historical, and structural approach, this Article challenges that premise. The conventional wisdom lacks a footing in the language of the Sixth Amendment, is not supported by historical practice, and departs from the adversarial truth-finding process at the foundation of American criminal procedure. Moreover, it seems to have arisen almost entirely by accident. Properly understood, the Confrontation Clause’s protections are not limited to the unusual case where guilt is contested; they exert their influence even on the determination of the proper punishment.

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