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March 4, 2010

"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.

March 4, 2010 at 12:33 AM | Permalink


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Doug, I enjoyed skimming the article and agree with a lot of what the authors have to say.

However, I think what was discussed is just the tip of the iceberg with respect to constitutional abuses during sentencing. In my view, a bigger problem is the failure of judges to follow the structure established by the legislature to determine sentence. The article assumes a judge making or not making decisions about circumstances affecting sentence. More often, judge don't consider the things the legislature has said should be considered before deciding on a sentence. I will send the authors a copy of a post conviction motion illustrating this problem.

I also think the article misperceives the effect of Apprendi. In my view, Apprendi does not give the jury a role in sentencing. It prohibits a bench trial for a greater offense following a jury trial for a lesser offense. But that is a different question.


Posted by: bruce cunningham | Mar 4, 2010 8:58:43 AM

The anti-historical argument in this piece is weak. Basically it touts the Scalia-like "originalist" position as superior to subsequent developments while just barely mentioning that there simply wasn't a bifurcated system in place at the founding. It's like faulting 19th century doctors for not discovering penicillin earlier.

The fact is there is not argument, pro or con, regarding the establishment of new rights at sentencing (and that's what Booker is) that isn't just totally based on whole cloth. While this article tries to suggest, basically, that if there was an alternate history where Jefferson, Madison, and Adams drove around in jet cars, split the atom, and had sentencing hearings then the authors are *pretty sure* that they'd like the pro-Booker model.

What a load.

Just own the fact that you want to change the sentencing process completely based on your personal notions of "fairness", Pro-Booker Bloc, then those of us on the other side might have some respect for you.

Posted by: Ferris Bueller | Mar 4, 2010 9:00:15 AM

How can a judge sentence you to 3 years in prison with no other felonies or no evidence of domestic violence. A judge in NM said he was going with his own feeling not with the evidence this sounds like prejudice not evidence.

Posted by: valerie | Mar 5, 2010 12:30:57 PM

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