Sentencing

AuthorStephen J. Schulhofer
Pages2366-2369

Page 2366

Anomalously, the constitutional law of criminal sentencing is a thinly developed field. Detailed procedural protections and an elaborate body of constitutional doctrine govern the investigation and adjudication of guilt in the pretrial and trial phases of a criminal case. The sentencing phase is just as important; indeed, for most defendants (who plead guilty without trial), the sentencing phase is even more important. Yet, outside the area of CAPITAL PUNISHMENT, sentencing is characterized by the almost complete absence of governing standards of substantive law, an extreme informality in prevailing procedures, and few constitutional restraints.

Although we ordinarily think of sentencing as a decision made by the judge after trial, the judge in reality shares sentencing authority with the legislature, the prosecutor, the jury, and the parole board or correctional agency. The division of authority varies widely from one jurisdiction to another and can have great impact upon the questions of constitutionality and fairness that arise.

The most important alternatives for the organization of sentencing authority are the mandatory, discretionary, and indeterminate systems. In a mandatory sentencing system, the sentence to be served upon conviction for a given crime is specified in the penal statute as a fixed term of years. Although the legislature ostensibly controls the sentence by defining it in advance, sentencing authority in a mandatory system tends in practice to become centered in the hands of the prosecutor, who decides which charges to file and, in effect, which mandatory sentences to seek. This prosecutorial decision is regarded as a discretionary one and is made without any hearing or other procedural formalities, without any governing standards, and without any opportunities for independent judicial review.

In the indeterminate sentencing system, neither the statute nor the judge limits the term to be served. The offender is sent to prison, potentially for life, and the time actually served is determined by the parole board. Usually that decision is based primarily on a judgment about whether an offender's progress toward rehabilitation makes him a good prospect for release. The parole board's decision is subject to few constitutional restraints. Connecticut Board of Pardons v. Dumschat (1981) holds that when a state's statutory regime treats parole as a privilege and creates no expectation of a right to early release, PROCEDURAL DUE PROCESS requirements do not apply at all.

Page 2367

When statutes do create an expectation of release, procedural due process requirements apply, but in Greenholtz v. Inmates (1979) the Supreme Court held that DUE PROCESS was satisfied by an opportunity to be heard and some indication of the reasons for denying parole. There is no RIGHT TO COUNSEL or right to confront or cross-examine witnesses in this context.

In a discretionary sentencing system, the penal statute sets only the boundaries within which the sentence must fall?a maximum sentence and sometimes a minimum sentence. These legislative boundaries typically leave a broad range of choice to the judge, who can choose the time to be served (or the fine or terms of probation) within the applicable limits. In some jurisdictions the judge's discretionary sentencing authority is qualified by legislative or administrative guidelines that require the sentence to fall within a narrow range unless the judge identifies unusual aggravating or mitigating circumstances. But many jurisdictions permit the judge to select any sentence within the broad legislatively authorized range without giving reasons and without facing appellate review.

In both mandatory and discretionary systems, sentencing authority is qualified by PLEA BARGAINING. The prosecutor may agree either to recommend a sentence or to fix a sentence that the judge must impose if the plea is accepted. The Constitution places few limits on the boundaries of plea negotiation. For example, the Supreme Court...

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