Sentencing: Procedural Protection

The rules of evidence and procedure that govern sentencing vary from jurisdiction to jurisdiction. Although these rules must meet constitutional standards, they may also provide additional procedural protections for the accused.

Evidentiary rules. Although privileges (such as the attorney-client privilege) generally are observed at the sentencing phase of a criminal trial, in most jurisdictions the rules of evidence do not otherwise apply to sentencing. Federal Rule of Evidence 1101 follows this rule, providing that the rules of privilege are applicable to all proceedings in the federal courts, but that otherwise the rules are not applicable at sentencing. Most states have similar rules. These rules reflect practices that developed when sentencing in all jurisdictions was discretionary and the judge was given the widest possible latitude to hear evidence he deemed relevant, without the evidentiary restrictions employed to restrict the jury (Young, pp. 305–309).

In many jurisdictions mandatory minimum sentences or guidelines have been adopted, and sentencing is no longer discretionary. In these jurisdictions the sentence is based upon a series of factual findings about the offense and the offender. This fundamental change in the nature of the sentencing process makes the sentencing hearing more like the trial; in both proceedings the determination of particular historical facts requires the application of particular legal rules. This is especially true in the federal system, which has adopted key features of real offense sentencing. In the federal system and in states that employ real offense sentencing many of the facts upon which the sentence depends are not elements of the offense, and they will not have been established by the finding of the defendant's guilt. The case for the application of the rules of evidence is the strongest in the federal system and in any states that employ nondiscretionary real-offense sentencing. For example, in a federal drug prosecution the key determinant of the defendant's sentence will be the quantity and type of drug. These facts are not currently deemed to be elements of the offense, and therefore they are not established by the conviction. They are determined, instead, at sentencing. If these findings are unreliable, then the offender will not receive the appropriate sentence.

It is therefore surprising that the U.S. Sentencing Commission has been unwilling to require that the rules of evidence be applied to ensure the reliability of fact-finding upon which the whole guidelines scheme depends, and to provide greater procedural fairness. Instead, the guidelines provide that "[i]n resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy" (U.S.S.G. § 6A1.3(a) (Policy Statement)). This provision seeks to strike a balance between the need for accurate findings as a basis for guidelines calculations and the need to streamline the sentencing process and reduce the burden on the sentencing court. The commentary to the guideline notes that in many cases written statements by counsel or affidavits may be sufficient, though in some cases an evidentiary hearing will be required.

Procedural rules. Most jurisdictions have formal procedural rules governing sentencing. These rules govern matters such as the preparation of a presentence report to assist the court and the conduct of the sentencing hearing. For example, Rule 32 of the Federal Rules of Criminal Procedure governs the time for sentencing, the preparation and contents of the presentence report, and the sentencing hearing.

Rule 32 provides that the probation officer shall generally make a presentence investigation and prepare a report before sentence is imposed. This report is intended to include information about the defendant's history and characteristics as well as information necessary to make the determinations required to impose a sentence under the federal sentencing guidelines. Because the federal guidelines are a modified real offense system, this requires the probation officer to make numerous determinations about "relevant conduct" beyond the elements established by the defendant's conviction. For example, the probation officer may have to determine what quantity and type of drug was involved in a narcotics case. In contrast, in jurisdictions involving charge offense sentencing there would be less focus on fact-finding that goes beyond the elements of the offense, except as it bears on the defendant's personal characteristics and history. Rule 32 provides that the probation officer shall serve the presentence report on the prosecution and defense before the sentencing hearing, in order to permit the parties to raise any objections to the report prior to the hearing.

At the hearing itself, Rule 32(c) provides that the court shall afford counsel for the defendant (and the government) an opportunity to comment on the probation officer's determinations, and that the court may, at its discretion, permit the parties to introduce testimony or other evidence on the objections. Before imposing sentence the court is also required to afford the defendant's counsel an opportunity to speak on the defendant's behalf, and the court must address the defendant personally to determine whether he or she wishes to make a statement or present any evidence in mitigation.

Except in systems employing sentencing guidelines, or permitting appellate review of sentences, judges are generally not required to give reasons for the sentence imposed. Even in guidelines systems, such reasons are usually only required if the judge "departs" from the sentence recommended by the guidelines. Perhaps surprisingly, the U.S. Supreme Court has held that due process does require a written decision, and reasons for the decisions, in postsentencing proceedings resulting in the revocation of probation or parole release, and the incarceration of the offender (Morrrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973)). It would seem that the initial sentencing decision—particularly when it involves incarceration—should also be accompanied with a statement of reasons.

There is also no general constitutional right to appellate review of the sentence initially imposed, but such review is available by statute or rule in some jurisdictions (particularly those, such as the federal system, that have sentencing guidelines). In addition, defendants may sometimes be able to gain appellate review of the procedures used to impose the sentence (but not the sentence itself); of course, a sentence that was not authorized by law can also be appealed. One likely reason for the traditional lack of appellate review of sentences is that sentencing decisions were, until fairly recently, highly discretionary, and were supposed to be tailored to the particular offense and offender; such highly fact-dependent decisions could not, it was assumed, be made subject to legal "rules" that appellate courts could articulate and enforce. (In the American legal system, appellate courts generally only decide issues of law, not issues of fact.) It is therefore not surprising to find that appellate review of sentences is more likely to be granted—and to be effective—in those jurisdictions that have adopted sentencing guidelines; such guidelines seek to define and enforce specific sentencing rules, and limit judges' discretion.