Sentencing: Procedural Protection

Williams and its progeny have been criticized as affording insufficient procedural protection at a critical stage of the criminal process. In Williams the sentencing judge made the decision to impose a capital sentence on the basis of information contained in reports that the defendant never had a chance to see. The defendant in Williams had no precise knowledge about the information in these reports, and he had no opportunity to challenge it by the usual mechanism of confronting and cross-examining the persons who provided the information. Williams appears to be an outgrowth of the traditional definition of the court's role in discretionary sentencing. The Supreme Court emphasized the latitude historically afforded to courts at the sentencing phase, and the opinion expresses concern that burdensome procedures would prevent courts from obtaining important information that could assist them in exercising their discretion and tailoring the sentences to the offenders.

There are two lines of criticism of Williams and its progeny. Many scholars and jurists have argued that even discretionary sentencing judgments should be made in a forum that provides most or all of the procedural protections afforded at the trial, in order to ensure fairness to the defendant as well as the reliability of any information upon which the court relies in imposing the sentence. As previously noted, Mempa v. Rhay held that traditional discretionary sentencing is part of the "criminal proceeding" for purposes of the Sixth Amendment right to counsel. The first critique of Williams is that the Court failed to follow Mempha in extending other procedural protections as well.

A second line of criticism argues that even if Williams is appropriate in discretionary sentencing jurisdictions, it should not be extended to modern sentencing regimes where the legislature has fundamentally reformed and altered the sentencing process to follow legal rules with prescribed legal consequences. Under the traditional sentencing scheme in Williams the sentence did not rest on any particular factual findings; indeed, the judge was not required to make any findings. In jurisdictions that have instituted greater restrictions on judicial discretion, in contrast, factual findings are ordinarily required, and they drive the sentencing process. Under a mandatory minimum statute or sentencing guidelines, the court does not have discretion to give whatever weight seems appropriate to the broadest possible range of factors. Rather, the legislature (or the sentencing commission) has designated the legal effect to be given to certain facts about the offense or the offender (especially his or her prior record). For example, many jurisdictions have statutes that require the sentencing judge to impose an increased sentence if a weapon was used in the commission of an offense, or if a victim was injured. It has been argued that under a sentencing regime of this nature the sentencing phase should be subject to some or all of the same procedural protections afforded at the trial, such as proof beyond a reasonable doubt and the right to confront and cross-examine witnesses. This argument is especially cogent under the federal sentencing guidelines because many of the facts being considered at the sentencing phase are not elements of the offense, and thus were not established by the fact of conviction, yet such facts can greatly increase the guidelines' sentence.

Despite the strength of the critiques of Williams, to date they have not been persuasive in most jurisdictions. Accordingly, as noted above, most constitutional protections afforded at the trial stage are not presently applicable at sentencing.