Charging As Sentencing

51 Pages Posted: 3 Aug 2019

See all articles by Donald A. Dripps

Donald A. Dripps

University of San Diego School of Law

Date Written: July 26, 2019


This Article connects two uncontroversial claims to support a novel and momentous thesis. The first familiar claim is descriptive. The most important determinant of an offender’s sentence is the discretionary selection of charges before guilty plea or trial. The second familiar claim is doctrinal. The Supreme Court has held that procedural due process requires that the discretionary selection of a sentence from within a statutory range be made by a neutral tribunal after notice and hearing. Together, these humdrum observations imply that statutes delegating sentencing power to prosecutors--so-called “mandatory” minimum sentences--are unconstitutional. Part I presents the descriptive claim that charging, in many cases, simply is sentencing. Part I also reviews the Supreme Court’s jurisprudence rejecting constitutional challenges to prosecutorial discretion, decisions premised on a statutory baseline, the long-discredited right-privilege distinction. Part II reviews the Court’s sentencing cases. These decisions rejected the right-privilege distinction by substituting a procedural for a statutory baseline. These cases hold that procedural due process permits legislative delegation of sentencing discretion only to neutral tribunals.

The sentencing cases condemn sentencing by prosecutors as a violation of procedural due process. Yet the Court has sustained prosecutorial charging discretion against multiple challenges, albeit not the one raised by this Article. There are at least four possible resolutions of the conflict in the cases. Courts might: (1) deny the equation of charging and sentencing, because the effect of charging on sentencing is contingent; (2) bless the inconsistency in the cases by appealing to history; (3) regulate charging decisions via administrative law, or (4) declare prosecutorial discretion to bring charges carrying mandatory minimum penalties unconstitutional. The rest of the Article argues against options (1), (2) and (3), and in favor of option (4). Replies are offered to objections based on pragmatism or on politics.

Keywords: mandatory minimum, sentencing, due process, prosecutorial discretion

JEL Classification: K14

Suggested Citation

Dripps, Donald A., Charging As Sentencing (July 26, 2019). Available at SSRN: or

Donald A. Dripps (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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