"Redefining a 'Crime' as a Sentencing Factor to Circumvent the Right to Jury" is the title of a CATO Institute paper. This paper was pie in the sky stuff until Blakely. Here is the paper's introduction:
The right to trial by jury is under grave threat today. From time immemorial, whether a person is guilty of a crime has been decided by one’s peers in the community. Under the United States Constitution, an accused person must be indicted by a grand jury and convicted by a petit jury of the charges beyond a reasonable doubt. However, forces are at work attempting to transfer these jury powers to the courts. By the linguistic artifice of redefining the term ‘‘crime’’ as a ‘‘sentencing factor,’’ courts are usurping the jury’s traditional fact-finding role and are dispensing with the standard of proof beyond a reasonable doubt. The following essay tells the story of how this menace to traditional American liberties is being carried out.
