Sentencing: Procedural Protection

Both the provisions of the U.S. Constitution and an array of statutes and court rules govern sentencing procedures in the United States. In considering sentencing procedures, it is important to note at the outset that sentencing is an area in which American jurisdictions vary considerably, and to recognize that differences in sentencing systems may have an important bearing on the applicable procedures.

Jurisdictions vary a great deal in the degree of discretion accorded to the sentencing judge. In jurisdictions where traditional rules apply, the judge has virtually unfettered discretion to set the sentence for an individual offender within a broad range established by statute for each offense. In many other jurisdictions, however, the sentencing judge's discretion has been channeled or restricted by various sentencing reforms. In these jurisdictions, provisions such as sentencing guidelines or mandatory minimum sentencing statutes require the judge to impose a particular sentence or to impose a sentence within a more limited range, depending upon the facts of the offense and the offender. One key issue in jurisdictions that have restricted the sentencer's discretion is whether these reforms also affect the procedures that apply at the sentencing phase.

Another important distinction among American jurisdictions concerns the type of information that may be considered at sentencing. Some jurisdictions employ charge offense sentencing, others real offense sentencing. In a charge offense jurisdiction, the sentence is based primarily upon the offense of conviction. In these jurisdictions, the defendant's conviction (at trial or by guilty plea) establishes most or all of the facts upon which the sentence will be based. The most notable example of real offense sentencing is the federal sentencing guidelines, which employ many elements of real offense sentencing. Real offense sentencing allows consideration of facts that are not elements of the offense to play a major role in determining an individual offender's sentence. Where real offense sentencing is permitted, the procedural and evidentiary rules that govern fact-finding at the sentencing phase assume greatly increased importance, since many key issues are not resolved by the guilty verdict.

It should also be noted that the requirements for the imposition of a capital sentence raise separate issues under the Eighth Amendment's cruel and unusual punishment clause. The remainder of this entry focuses on the requirements for noncapital sentences.