The title of this post is the title of this notable new article authored by Rachel Paulose and now available via SSRN. Here is its abstract:. In our constitutional democracy, it is the people who hold ultimate power over every branch of government, including authority over the judiciary through the jury trial guarantee of the Sixth Amendment. However, the traditional view of recidivist statutes, including the federal Armed Career Criminal Act (“ACCA”), exempts the fact of a defendant’s prior convictions from the Sixth Amendment jury trial promise. Specifically, prosecutors and federal judges have removed from juries and given to sentencing judges the power to determine prior crimes that enhance a defendant’s sentence under the ACCA by labeling a recidivist finding a sentencing factor rather than an element of the offense.