Ethan Glass, Whatever Happened to the Trial by Jury? The Unconstitutionality of Upward Departures Under the United States Sentencing Guidelines, 37 Gonz. L. Rev. 343 (2002).
Federal judges were granted great discretion in sentencing, at least before Congress passed the Sentencing Reform Act; any sentence lesser than the statutory maximum was within a judge’s sole discretion. Under such a system, the information judges could consider was unlimited, the Federal Rules of Evidence did not apply, and sentences were not privy to review. Included among the results of this system were inconsistency and indeterminacy.