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The tension between the two principles set out above is an unresolved dilemma for the United States Supreme Court. On the one hand, not every fact relevant to sentencing a criminal defendant warrants the Constitution’s full criminal procedure protections. On the other hand, if those protections apply only to the facts selected by the legislature to determine guilt or innocence, the sentencing proceeding may overwhelm the trial in importance because the sentencing facts will determine the defendant’s fate to a far greater extent. Justice Scalia described this tension bluntly:

law and contemporary problems

Sentenced for a "Crime" the Government Did Not Prove: Jones v. United States and the Constitutional Limitations on Factfinding by Sentencing Factors Rather than Elements of the Offense