Trial Rights at Sentencing

Posted: 12 Nov 2003

See all articles by Alan C. Michaels

Alan C. Michaels

Ohio State University (OSU) - Michael E. Moritz College of Law


While the landscape of constitutional rights of procedure at a criminal trial is well developed, the picture of which of these rights apply at sentencing proceedings is much murkier. The scope of protection provided at sentencing and the principles governing which trial rights apply at sentencing and which do not have not been well understood. The advent of sentencing guidelines systems has increased the importance of these issues. This article systematically canvasses trial rights at sentencing, identifying which rights apply, which do not and which remain in doubt. The results are presented in both summary and detailed form.

The Article also explores possible rationales for the results that emerge and identifies a previously unarticulated principle that appears to govern them. Briefly put, under this "best-estimate" principle, rights which are directed primarily at determining the correct result apply at sentencing, while those designed to offer special protection to a defendant's liberty or autonomy interests do not. The article also uses the "best-estimate" principle to explain how the rest of the picture of trial rights at sentencing is likely to be filled in if the Court continues on the path of the last fifty years.

The article then examines explanations for, and some broader implications of, these descriptive conclusions. First, the article explores how the Court's decisions might have come to match the best-estimate principle through an unarticulated due process balancing test. In this view, the defendant's residual liberty interest - an interest in a sentence that is not "too high" - is balanced against the state's interest in an appropriate and reasonably expedient outcome. Next, the article contends that courts may be expected to defend this balance. When faced with changes in the nature of the remaining liberty interest at stake in sentencing, courts will defend the balance either by imposing substantive limitations on what can be decided at sentencing or by adding more procedures. The article explains how the Court's recent decisions in Apprendi v. New Jersey, Ring v. Arizona, and Harris v. United States are best understood (indeed, perhaps can only be understood) in this light. These decisions impose the substantive limitations on what can be decided at sentencing that are necessary (but only those that are necessary) for preserving the Court's conception of a defendant's liberty interest at sentencing that underlies its procedural decisions. Finally, the article briefly considers the possible effect of guidelines sentencing systems on the model the Court has created.

Keywords: sentencing, constitutional criminal procedure

JEL Classification: K14, K40, K41, K42

Suggested Citation

Michaels, Alan C., Trial Rights at Sentencing. Available at SSRN:

Alan C. Michaels (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-688-3451 (Phone)
614-292-2035 (Fax)

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