Carissa Byrne Hessick, F. Andrew Hessick

Recognizing Constitutional Rights at Sentencing

There are a number of traditional sentencing factors, which judges use when selecting the precise sentence within the statutory sentencing range, that 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 that these oft-repeated justifications do not warrant the judiciary’s disregard of constitutional rights at sentencing.
Consequently, courts should directly grapple with the Constitution in imposing sentencing, instead of disregarding it on the ground that sentencing is unique. The Article then explores some possible changes to sentencing to address the problem of courts’ use of these factors at sentencing.