Here we go.
Carissa Byrne Hessick and F. Andrew Hessick, Procedural Rights at Sentencing. Notre Dame Law Review, Vol. 90, 2014 Forthcoming, University of Utah College of Law Research Paper, No. 80
In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws. By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections. This Article challenges this discrepancy.
The legal standards for reviewing claims of ineffective assistance at sentencing are underdeveloped. In other contexts, defendants seeking to prove ineffective assistance must demonstrate that counsel’s performance fell below appropriate professional standards and that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. The doctrinal uncertainty whether that standard applies to sentencing proceedings in non-capital cases, coupled with worries that ineffective assistance at sentencing claims will result in a flood of litigation, has led some courts to require defendants to satisfy stricter prejudice standards in discretionary non-capital sentencing regimes. This Article analyzes the ineffective assistance jurisprudence and concludes that the sufficiency of counsel’s performance is largely evaluated against a backdrop of relevant substantive law. The substantive law of non-capital sentencing is not well-developed, which may explain the underdeveloped state of ineffective assistance at sentencing standards. Drawing on several recent ineffective assistance cases in the death penalty context, this Article identifies legal principles and practices that may assist in making the legal assessments necessary to analyze ineffective assistance at sentencing claims. These principles and practices may provide a sufficient legal framework to render unnecessary the crude manipulation of the prejudice showing that some courts have employed.
F. Andrew Hessick and Carissa Byrne Hessick, Recognizing Constitutional Rights at Sentencing. 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.