Sopen Shah


Scholars and commentators heavily criticize the current federal sentencing system for over-incarceration, racial disparities in outcomes, and a lack of procedural protections for criminal defendants. This Article focuses on a procedural protection recently revived by the Supreme Court’s 2004 decision in Crawford v. Washington: the Confrontation Clause of the Sixth Amendment. Though Crawford only addressed the Clause’s application during trial, the case and its reasoning have important implications for today’s federal sentencing regime under the Federal Sentencing Guidelines. Though the Supreme Court has yet to directly address the issue, I argue that lower courts incorrectly interpret an old, pre-Crawford case to read the confrontation right out of federal sentencing. Given the underlying philosophy, goals, and process of sentencing today, the argument to apply confrontation rights has never been stronger. Using never-before-reported U.S. Sentencing Commission data and federal sentencing transcripts, I show that important facts in Pre-Sentence Reports (“PSRs”) are routinely disputed and inadequately resolved during sentencing. My analysis also reveals a meaningful lack of uniformity among federal districts and judges—a common theme in sentencing scholarship—in their willingness to change findings of fact in PSRs that impact defendants’ final sentences. I propose a workable solution to satisfy constitutional confrontation rights at federal sentencing. Specifically, confrontation rights should apply when: (a) a defendant disputes a fact in the PSR after pleading or conviction; (b) the fact is related to a possible significant upward enhancement from the base offense level (not just an upward departure from the statutory maximum); and (c) a testimonial statement is the primary source of that fact. This effort is a small step toward ensuring the Constitution does not abandon defendants when they need it most.