Procedural rights at sentencing.

AuthorHessick, Carissa Byrne


In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems--systems that limit sentencing factors and specify particular punishments based on particular facts--defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentenced based on ex post facto laws. By contrast, for discretionary systems--systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge's discretion--defendants do not enjoy these protections. This Article challenges this discrepancy. It argues that, given the rationales underlying each of these rights, there is equal reason to apply these rights in discretionary sentencing systems as in mandatory ones. As it explains, procedural rights regulate the means by which facts are found and the manner in which courts use those facts, and consequently are critical to discretionary systems. Just as in mandatory sentencing systems, judges in discretionary systems must make factual findings to determine the appropriate sentence to impose. This Article argues that the various justifications for providing fewer procedures in discretionary schemes are based on misconceptions about the nature of discretion at sentencing and inaccurate historical analysis.


In recent years, the Supreme Court has greatly expanded the scope of constitutional protections at sentencing. At the beginning of the twentieth century, courts enforced few, if any, of the criminal procedural rights prescribed by the Constitution during a sentencing proceeding. They applied those rights only at trial to determine the guilt or innocence of a defendant. But in the last half-century, courts have enforced a number of procedural protections at sentencing. (1) Most notably, in a series of recent cases, the Supreme Court has said that defendants at sentencing have the right to have facts that increase a sentence found by a jury, (2) the right to have those facts proven beyond a reasonable doubt, (3) the right to notice of the facts that may increase their sentence, (4) and the right not to be sentenced under retroactive laws that are harsher than the ones in effect at the time of the commission of the offense. (5)

But the Court has limited the application of these procedural protections to mandatory sentencing systems--systems that specify a particular punishment based on particular facts. By contrast, defendants do not enjoy these procedural protections in discretionary sentencing systems--systems that leave essentially all decisions affecting the amount of punishment to the judge's discretion. In discretionary schemes, judges, not juries, may find the facts that affect the sentence; the government need not prove those facts beyond a reasonable doubt; defendants are not entitled to notice of the considerations that may increase their sentences; and their sentences may be increased under retroactive laws.

This Article argues that it is inappropriate to treat procedural rights differently depending on judicial sentencing discretion. As it explains, if one examines the rationales underlying each of these rights, it is apparent that the rights should apply equally in discretionary and mandatory sentencing schemes. There is no principled reason to require the observance of these procedures in mandatory systems, but not in discretionary systems. Indeed, the rationales behind many of these rights suggest that their enforcement is more important in discretionary systems.

Imposing different procedural requirements for mandatory and discretionary sentencing schemes has also led to confusion. No sentencing system in effect today is completely mandatory or completely discretionary; instead, they are hybrid mandatory and discretionary schemes. (6) The consequence has been uncertainty over precisely how much discretion a sentencing system must afford judges before a defendant is no longer entitled to procedural rights. Adding to the confusion, the Court has applied different tests to determine whether a sentencing scheme is mandatory or discretionary for different doctrines. For example, the Supreme Court has treated the now-advisory Federal Sentencing Guidelines system as discretionary in deciding whether to enforce the jury trial right, the proof beyond a reasonable doubt requirement, and the due process right to notice; but it treated the same system as mandatory in determining whether to apply the Ex Post Facto Clause. (7) Looking to the rationale for each right in order to determine its applicability at sentencing avoids that confusion, and it provides a more logical method to determine which rights ought to apply at sentencing.

This Article proceeds in four parts. Part I gives a brief historical overview of sentencing in the American criminal justice system, including the shift from discretionary to mandatory sentencing, the recognition of various procedural rights at sentencing, and the Court's differentiation between discretionary and mandatory sentencing systems in the wake of the recent Supreme Court cases Blakely v. Washington (8) and United States v. Booker. (9) Part II provides a nuanced account of judicial discretion at sentencing, including a discussion of how discretionary sentencing systems differ from mandatory schemes.

Part III builds the positive case for applying the same procedural protections in discretionary as in mandatory sentencing schemes. It does so by focusing on four procedural rights--the right to a jury, the right to have sentencing facts proven beyond a reasonable doubt, the due process right to notice, and the applicability of the Ex Post Facto Clause--that have been treated differently in mandatory and discretionary systems. It discusses the rationale underlying each of the rights, and it explains why, in light of those rationales, conditioning the enforceability of each right on the type of sentencing system is unsupportable.

Part IV addresses the three main justifications that have been given for extending procedural protections to mandatory but not discretionary sentencing schemes, and it explains why those arguments are unconvincing. First, it refutes the various claims that there is something inherent in the nature of judicial discretion that makes procedural protections unnecessary. Second, Part IV addresses the argument that additional procedural protections are necessary only in mandatory schemes because defendants have an expectation not to receive a sentence increase in a mandatory scheme without findings of aggravating facts. It explains that, because judges under discretionary schemes must make rational distinctions among defendants, they cannot sentence all defendants to the maximum allowable sentence. Accordingly, defendants in discretionary schemes also have an expectation not to receive high sentences without additional fact findings. Finally, Part IV challenges the Court's history-based conclusion that mandatory sentencing laws effectively created new crimes and, accordingly, trigger all of the procedural protections that apply at trial. It explains that the Court's conclusion is not supported by the historical evidence and that, even if it were supported by history, the Court's decisions are not justified because historical practice has generally not informed the development of procedural law at sentencing.


    For nearly a hundred years, beginning in the late nineteenth century, discretionary sentencing was the norm in the United States. (10) In a typical discretionary sentencing system, after a defendant had been convicted, the judge conducted a separate sentencing hearing at which she imposed a sentence based on her assessment of the offender and the circumstances under which the crime was committed. (11) The judge's discretion was limited by the statutory sentencing range--that is, she could not impose a sentence above the statutory maximum sentence for the crime of conviction, nor a sentence below any applicable statutory minimum sentence--but those ranges were ordinarily quite broad. In selecting a sentence within the statutory range, judges often considered a wide range of factors including the defendant's criminal history, employment history, family ties, educational level, military service, charitable activities, and age; harm caused by the criminal act; and the defendant's motive. (12)

    Historically, discretionary sentencing systems gave significant authority to sentencing judges. Whether to consider any of these factors and the weight to accord to various factors were decisions left almost entirely to the discretion of individual judges. (13) Indeed, the perception was that sentencing courts could impose sentence for any reason, or no reason at all. (14) But in reality there were real limits on the discretion of sentencing courts. Even in systems conferring the broadest discretion, sentencing judges could not base sentences on false information (15) or on an improper factor, such as a defendant's race, gender, or religion. (16) Moreover, sentencing judges in discretionary schemes could not impose the statutory maximum punishment based solely on the crime of conviction, but were required to individualize sentences based on the facts or circumstances of the defendant's offense and personal background. (17)

    Enforcement of these limitations, however, varied from jurisdiction to jurisdiction. Some state jurisdictions permitted appellate review of sentencing, albeit under deferential standards. (18) Other systems, however, provided little appellate review. Review of sentencing was particularly limited in the federal system. An 1891 statute essentially removed jurisdiction to review sentencing decisions from the appellate...

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