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.
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