"Recognizing Constitutional Rights at Sentencing"

The title of this post is the title of this new piece on SSRN by Professor F. Andrew Hessick III and Carissa Byrne Hessick. Here is the abstract:

There are a number of traditional sentencing factors, which judges use when selecting the precise sentence within the statutory sentencing range, that appear to infringe on the constitutional rights of criminal defendants.  Yet courts have not engaged in traditional constitutional analysis when permitting the use of these factors.  Instead, they have rejected constitutional challenges to sentencing factors on the grounds that recognizing substantive constitutional limits on sentencing considerations would be inconsistent with historical practice and would interfere with the judiciary’s ability to impose a proper sentence.  This Article challenges these claims.  It demonstrates both that there is not a historical practice of disregarded rights at sentencing, that constitutional rights frequently impair the government’s ability to accomplish its goals, and that there is nothing unique about sentencing that warrants the judiciary’s disregard of constitutional rights because of these impediments.  It further argues that recognizing constitutional limits on sentencing considerations is particularly important given that sentencing is the means by which the government restricts individual liberty.