A little overrought... and disingenous, to argue that prior sentences are unconstitutional because the SCOTUS comes up with a new, never previously accepted INTERPRETATION of the constitution? It's like saying all the forgone abortions prior to Roe v. Wade were unconstitutional liberty deprivations. Or all the unwarned statements given by criminals pre- Miranda were unconstitutional. Such retrospective analysis is facile and ignores the reality that different SCOTUS benches view what the constitution "means" differently from time to time. When a new interpretation comes down the pike, even if it seems plainly correct to us, it hardly supports the view that all that went before was unconstitutional.It is certainly not beyond reasonable argument that a sentencing judge can consider conduct that was not charged or proven to a jury in fixing a sentence without violating the Fifth Amendment. I don't agree with that view, and think the current view is correct, but only an ideologue would tar all that went before as unconstitutional. Plenty of fair, reasonable jurists took the other view.
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