Judicial Sentencing Error and the Constitution

56 Pages Posted: 1 Nov 2016

See all articles by Reid K. Weisbord

Reid K. Weisbord

Rutgers Law School

George C. Thomas

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: October 31, 2016


Much recent scholarship has sharply criticized the pervasive phenomenon of wrongful convictions, but the literature has overlooked an important related injustice: inaccuracy in criminal sentencing. This Article provides the first comprehensive scholarly treatment of judicial sentencing error, which has become widespread in the modern era of both ad hoc revision to criminal codes and increasingly complex criminal sentencing systems that often lack internal coherence or sensible statutory organization. Although nearly always the product of human error, the problem of judicial sentencing error is more aptly characterized as systemic because sentencing judges often face ever-changing, overlapping statutory requirements contained in separate parts of the criminal code. We identify both the source and harmful consequences of judicial sentencing error, and then examine constitutional principles implicated by the untimely correction of an erroneous sentence. Focusing particularly on a defendant’s interest in finality, we argue that the constitutional guarantees of substantive due process and protection against double jeopardy under the Fifth Amendment should be construed to limit the time to correct an erroneously lenient sentence, with the Double Jeopardy Clause supplying the more potent limiting principle and objective legal standard. We conclude that — by according respect for principles of finality in criminal sentencing — the law could create an effective institutional incentive for the State to ascertain the correctness of sentencing orders at or near the time of punishment, thereby preventing the harm and injustice that occur when the defendant’s reasonable expectation of finality has been frustrated for the legitimate but not indomitable sake of accuracy.

Keywords: sentencing, judicial error, wrongful conviction, due process, double jeopardy, finality, Fifth Amendment, Fourteenth Amendment, crime legislation

Suggested Citation

Weisbord, Reid K. and Thomas, George C., Judicial Sentencing Error and the Constitution (October 31, 2016). Boston University Law Review, Vol. 96, No. 5, 2016, Available at SSRN: https://ssrn.com/abstract=2862169

Reid K. Weisbord (Contact Author)

Rutgers Law School ( email )

Newark, NJ
United States

HOME PAGE: http://law.rutgers.edu/directory/view/weisbord

George C. Thomas

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Newark, NJ
United States

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