Recognizing Constitutional Rights at Sentencing

50 Pages Posted: 3 Mar 2010  

F. Andrew Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law

Carissa Byrne Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law

Date Written: March 1, 2010

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.

Keywords: Sentencing, Constitutional Law, Criminal Law, Sentencing Factors

Suggested Citation

Hessick, F. Andrew and Hessick, Carissa Byrne, Recognizing Constitutional Rights at Sentencing (March 1, 2010). California Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1562092

F. Andrew Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

Carissa Byrne Hessick (Contact Author)

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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