Recognizing Constitutional Rights at Sentencing
F. Andrew Hessick III
Arizona State University - Sandra Day O'Connor College of Law
Carissa Byrne Hessick
University of Utah - S.J. Quinney College of Law
March 1, 2010
California Law Review, Forthcoming
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.
Number of Pages in PDF File: 50
Keywords: Sentencing, Constitutional Law, Criminal Law, Sentencing FactorsAccepted Paper Series
Date posted: March 3, 2010
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