Recognizing constitutional rights at sentencing

California Law Review

Volumn 99, Issue 1, 2011, Pages 47-94

  Hessik, Carrisa Byne ^a   Hessick, F Andrew ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

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EID: 79954432079     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (484)

1. United States v. Guerrero, 863 F.2d 245, 246-47 (2d Cir. 1988).
2. United States v. Mercado, 474 F.3d 654,659 (9th Cir. 2007).
3. United States v. Jones, 997 F.2d 1475, 1477 (D.C. Cir. 1993).
4. United States v. Cramer, 414 F.3d 983, 985 (8th Cir. 2005).
5. One of the few sentencing factors that the courts have deemed unconstitutional in noncapital cases is the increase of sentence based on race.
6. See infra note 34. By contrast, there are a large number of rights that the courts have recognized in capital sentencing proceedings that they have not yet extended to non-capital proceedings.
7. One example is the right to have the jury properly instructed about sentencing options.
8. See Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 MICH. L. REV. 1145, 1150 n.14 (2009) (addressing only non-capital sentencing).
9. See, e.g., United States v. Watts, 519 U.S. 148, 154-55 (1997).
10. As Elizabeth Lear has explained, courts have "devised a convenient yet dangerous fiction in the form of the 'punishment-enhancement' distinction. According to this theory, a sentence enhancement does not constitute punishment.".
11. Elizabeth T. Lear, Double Jeopardy, the Federal Sentencing Guidelines, and the Subsequent-Prosecution Dilemma, 60 BROOK. L. REV. 725,726(1994).
12. See, e.g., Elizabeth T. Lear, Is Conviction Irrelevant?, 40 UCLA L. REV. 1179, 1208 (1993) (noting that, when responding to constitutional challenges to the Federal Sentencing Guidelines, "the courts of appeals have consistently answered such claims with a description of the current system, rather than a discussion of the constitutional propriety of punishment" imposed by the system).
13. The strict scrutiny test, for example, recognizes that the government cannot ignore constitutional rights to achieve government objectives except in the most compelling circumstances. See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005).
14. E.g., James J. Bilsborrow, Sentencing Acquitted Conduct to the Post-Booker Dustbin, 49 WM. & MARY L. REV. 289 (2007) (addressing the use of acquitted conduct in sentencing).
15. Lear, supra note 8 (discussing "real offense" sentencing).
16. Michael M. O'Hear, Remorse, Cooperation, and "Acceptance of Responsibility": The Structure, Implementation, and Reform of Section 3E1.1 of the Federal Sentencing Guidelines, 91 Nw. U. L. REV. 1507, 1556-58 (1997) (concerning defendant's state of mind and acceptance of responsibility for conduct at sentencing).
17. Matthew MacKinnon Shors, United States v. Watts.
18. Unanswered Questions, Acquittal Enhancements, and the Future of Due Process and the American Criminal Jury, 50 STAN. L. REV. 1349 (1998) (also questioning consideration of acquitted conduct).
19. Contrast Lear, supra note 8, at 1238 (noting that the argument advanced "requires only that the nonconviction offense be excluded from the sentencing inquiry; it says nothing ⋯ about the applicability of the Due Process Clause to factors properly considered at the sentencing hearing").
20. Of course, there is a rich academic literature on the underenforcement of constitutional rights generally, as opposed to specifically at sentencing.
21. See, e.g., Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274, 1277-79 (2006) (arguing that the effort to create judicially manageable standards is one reason for judicial underenforcement of constitutional rights).
22. Richard H. Fallon, Jr., Foreword: Implementing the Constitution, 111 HARV. L. REV. 56 (1997) [hereinafter Fallon, Implementing the Constitution] (arguing that underenforcement may result from desire to avoid social costs).
23. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1227 (1978) (identifying the phenomenon of underenforcement of constitutional rights).
24. Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69, 98-99 (2009) (discussing underenforcement of constitutional norms in the voting context).
25. The early history of sentencing in the United States is a matter of some dispute.
26. Although some contend judges had discretion, e.g., Williams v. New York, 337 U.S. 241, 246 (1949) (suggesting that courts in colonial times had discretion in picking sentences).
27. KATE STLTH & JOSE CABRANES, FEAR OF JUDGING; SENTENCING GUIDELINES FN THE FEDERAL COURTS 9 (1998) ("From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion."), most commentators describe early sentencing as leaving no discretion for sentencing judges.
28. ARTHUR W. CAMPBELL, LAW OF SENTENCING 9 (1978) ("In the various jurisdictions of Colonial America criminal codes tended to link specific sentences to particular crimes.").
29. Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 71 (2003) (noting that "mandatory sentences for felonies were prevalent at the time of the Constitution's Framing").
30. Elizabeth E. Joh, "If It Suffices to Accuse ": United States v. Watts and the Reassessment of Acquittals, 74 N.Y.U. L. REV. 887, 901 (1999) ("In the early history of the United States and of England, most punishments were fixed, and judges had little authority to reduce or enhance a sentence.").
31. Susan R. Klein, The Return of Federal Judicial Discretion in Criminal Sentencing, 39 VAL. U. L. REV. 693, 696 (2005) ("The English practice in colonial times for felony offenses consisted of a set or determined sentence for every offense, primarily the death penalty or a fine which varied according to the value of the property stolen.").
32. Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. CRJM. L. & CRIMINOLOGY 883, 892-93 (1990) ("[U]p through 1870, legislators retained most of the discretionary power over criminal sentencing⋯ . [T]he period of incarceration was generally prescribed with specificity by the legislature.").
33. see also Apprendi v. New Jersey, 530 U.S. 466, 478-81 (2000); Note, The Admissibility of Character Evidence in Determining Sentencing, 9 U. CHI. L. REV. 715, 715 n.l (1942) [hereinafter Character Evidence} ("In the seventeenth century practically all felonies called for the death sentence ⋯.").
34. See THE COUNCIL OF STATE GOVERNMENTS, DEFINITE SENTENCING: AN EXAMINATION OF PROPOSALS IN FOUR STATES 3 (1976).
35. See Klein, supra note 12, at 696; see afao Carissa Byrne Hessick, Motive's Role in Criminal Punishment, 80 S. CAL. L. REV. 89, 131 n.183 (2006) (noting that "everyone seems to agree that discretionary sentencing was the norm by the late nineteenth century").
36. See Apprendi, 530 U.S. at 481; CAMPBELL, supra note 12, at 10-11; Character Evidence, supra note 12, at 715-16.
37. More recently, courts and commentators have justified individualized sentencing through other theories of punishment. See infra Part III.C.
38. CAMPBELL, supra note 12, at 223.
39. See STITH & CABRANES, supra note 12, at 79-80.
40. The amount of judicial discretion varies from jurisdiction to jurisdiction. Richard S. Frase, State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues, 105 COLUM. L. REV. 1190, 1196-1206 (2005).
41. Kevin R. Reitz, The Enforceability of Sentencing Guidelines, 58 STAN. L. REV. 155, 156-71 (2005).
42. Some states provide judges with advisory guidelines about sentence lengths, but do not appear to police judicial adherence to those guidelines. See Frase, State Sentencing Guidelines, supra at 1198 (listing " voluntary" guidelines jurisdictions, where sentences are not subject to appeal).
43. For example, some states have developed "presumptive sentencing guidelines." In these presumptive systems, legislatures or sentencing commissions identify a narrow presumptive sentence for the "ordinary case" of a given crime.
44. Judges retain the power to sentence above or below the presumptive sentence in an unusual case, but these sentencing decisions are subject to appellate review.
45. Kevin R. Reitz, Sentencing Reform in the States: An Overview of the Colorado Law Review Symposium, 64 U. COLO. L. REV. 645, 647 & n.10 (1993).
46. The presumptive sentence often depends not only on the offense of conviction, but also on an offender's prior record of convictions. Examples of such systems include Arizona, California, and Washington, which created presumptive, mitigated, and aggravated sentences. See ARIZ. REV. STAT. ANN. §§ 13-604, 13-702 (2001 & Supp. 2007).
47. CAL. R. Cr. 4.420; WASH. REV. CODE ANN. § 9.94A.535 (West 2003); see also Cunningham v. California, 549 U.S. 270, 276-78 (2007) (describing the California system).
48. Although once mandatory, the Guidelines were rendered advisory by United States v. Booker, 543 U.S. 220 (2005).
49. Booker's increased judicial discretion creates more opportunity for sentences to be based on constitutionally suspect reasons.
50. Such discretion is not, of course, central to our claim. Our point is that sentences are being set based on constitutionally suspect factors.
51. It is irrelevant whether the constitutionally suspect factor is included because of judicial discretion or legislative fiat.
52. ee, e.g., United States v. O'Brien, 130 S. Ct. 2169, 2176 (2010) (noting that "[s]entencing factors traditionally involve characteristics of the offender-such as recidivism, cooperation with law enforcement, or acceptance of responsibility"-all of which involve facts other than that of conviction).
53. See Alan C. Michaels, Trial Rights at Sentencing, 81 N.C. L. REV. 1771, 1773-74 (2003) (noting that in the "half-century since Williams," courts have decided cases recognizing more rights at sentencing "than many have supposed").
54. Although courts have been more willing to recognize procedural rights at sentencing than to recognize substantive constitutional limitations on the consideration of various factors, judicial recognition of procedural rights is not complete. For example, despite a renewed interest in Confrontation Clause rights at trial, see e.g., Crawford v. Washington, 541 U.S. 36 (2004).
55. courts consistently refuse to recognize a right to confrontation at sentencing, e.g., United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006).
56. United States v. Bustamante, 454 F.3d 1200, 1202-03 (10th Cir. 2006); United States v. Monteiro, 417 F.3d 208, 215 (1st Cir. 2005); United States v. Luciano, 414 F.3d 174, 178 80 (1st Cir. 2005).
57. United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005); United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005).
58. United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005); United States v. Brown, 430 F.3d 942, 944 (8th Cir. 2005).
59. United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005).
60. Glover v. United States, 531 U.S. 198, 203-04 (2001); Mempa v. Rhay, 389 U.S. 128 (1967).
61. Mitchell v. United States, 526 U.S. 314, 321 22 (1999).
62. Burns v. United States, 501 U.S. 129, 138 (1991) (noting that a failure to give defendant advance notice of facts that would result in a higher sentence might raise serious due process concerns).
63. Michaels, supra note 23, at 1811 n.165 (identifying a number of lower court decisions holding that "the defendant must have notice of facts relied upon by the court in noncapital sentencing cases").
64. See, e.g., United States v. Booker, 543 U.S. 220 (2005).
65. Blakely v. Washington, 542 U.S. 296 (2004).
66. Apprendi v. New Jersey, 530 U.S. 466 (2000).
67. The Apprendi analysis relied, in part, on whether a fact identified by statute as requiring a higher sentence was an "element" or a "sentencing factor." Apprendi, 530 U.S. at 494 n.19 (explaining that the term '"sentencing factor' ⋯ describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding," and it may be found by a judge by a preponderance of the evidence.
68. In contrast, "when the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element" and must be submitted to a jury and proved beyond a reasonable doubt).
69. The Apprendi Court did not, however, limit its analysis to the formal distinction between elements and sentencing factors.
70. rather it stated that "the relevant inquiry is one not of form, but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 494.
71. Subsequent decisions in Blakely and Booker confirmed that Apprendi's procedural requirements applied to sentencing.
72. There are also isolated decisions objecting to the consideration of various sentencing factors. See, e.g., People v. Bolton, 589 P.2d 396, 400-01 (Cal. 1979) (holding that a sentencing court cannot constitutionally impose a higher sentence on a defendant because he had fathered children out of wedlock).
73. Townsend v. Burke, 334 U.S. 736, 740- 1 (1948); see also United States v. Tucker, 404 U.S. 443 (1972) (reaffirming Townsend); United States v. Gonzalez-Castillo, 562 F.3d 80, 83 (1st Cir. 2009) (defendants have "a due process right to be sentenced upon information which is not false or materially incorrect" (citing United States v. Pellerito, 918 F.2d 999, 1002 (1st Cir. 1990))).
74. North Carolina v. Pearce, 395 U.S. 711 (1969).
75. Id. at 720; see also Stroud v. United States, 251 U.S. 15 (1919) (noting that because the state has the power to retry a defendant who has succeeded in getting his first conviction set aside, it also has the power, upon the defendant's reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction).
76. Pearce, 395 U.S. at 724. The Court explained that, if a conviction had been set aside because of constitutional error, allowing courts to punish the appeal on retrial would '"penaliz[e] those who choose to exercise' constitutional rights," and may "serve to 'chill the exercise of basic constitutional rights.'" (quoting United States v. Jackson, 390 U.S. 570, 581-82 (1968)).
77. In a subsequent case, the Court clarified that vindictiveness on the part of the trial court will not be presumed if a higher sentence is imposed at resentencing, but the Court reaffirmed the constitutional holding of Pearce. Alabama v. Smith, 490 U.S. 794, 802 03 (1989).
78. See, e.g., United States v. Kaba, 480 F.3d 152, 156 (2d Cir. 2007) ("A defendant's race or nationality may play no adverse role in the administration of justice, including at sentencing.") (quoting United States v. Leung, 40 F.3d 577,586 (2d Cir. 1994)).
79. See. e.g., id.; United States v. Borrero-Isaza, 887 F.2d 1349, 1355-57 (9th Cir. 1989) (vacating a sentence that appears to have been partially based on defendant's national origin).
80. United States v. Gomez, 797 F.2d 417,419 (7th Cir. 1986) (remarking that it "obviously would be unconstitutional" to punish a defendant more severely solely based on nationality).
81. See Williams v. Currie, 103 F. Supp. 2d 858, 863 (M.D.N.C. 2000).
82. In United Slates v. Maples, the Fourth Circuit vacated the fifteen-year sentence imposed on a male defendant whose codefendant received only a ten-year sentence because she was a female. 501 F.2d 985 (4th Cir. 1974) (stating that "some or all of the disparity in sentences was attributable to the fact that the co-defendant was female").
83. The court explained that until empirical research demonstrates that an individual's sex is relevant to his or her susceptibility to rehabilitation or deterrence, "sex, alone, is an impermissible basis for a disparity in sentence." Id. at 985.
84. Maples is particularly noteworthy because it was decided in 1974, when federal courts generally "disclaimed] the right to exercise general appellate review over sentences." Id. at 986; see also Dorszynski v. United States, 418 U.S. 424, 431 (1974) (noting "the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end").
85. Carissa Byrne Hessick & F. Andrew Hessick, Appellate Review of Sentencing Decisions, 60 ALA. L. REV. 1,4 (2008) ("For the greater part of American history, appellate review of federal criminal sentences was non-existent in most cases.").
86. United States v. Diamond, 561 F.2d 557, 559 (4th Cir. 1977); Jackson v. State, 772 A.2d 273, 278 (Md. 2001) ("Simply stated, it is not permissible to base the severity of sentencing on where people live, have lived, or where they were raised.").
87. See, e.g., Jackson, 772 A.2d at 279; see also United States v. Leung, 40 F.3d 577, 586 (2d Cir. 1994) (reversing sentence that appeared to be based on race, explaining that "justice must satisfy the appearance of justice").
88. See. e.g., United States v. Smart, 518 F.3d 800, 804 n.l (10th Cir. 2008).
89. See, e.g., Theodore Levin, Toward a More Enlightened Sentencing Procedure, 45 NEB. L. REV. 499, 504 (1966) ("The presentence report contains all the information considered necessary for the proper disposition of the case. This includes ⋯ a complete report of the defendant's ⋯ religion.").
90. see also United States v. Mitchell, 392 F.2d 214, 217 (2d Cir. 1968) (Kaufman, J., concurring) (stating that religion is "an area often appropriately discussed in presentence reports").
91. State v. Fueist, 512 N.W.2d 243, 244 5, 247 (Wis. Ct. App. 1994); see also United States v. Bakker, 925 F.2d 728, 740-41 (4th Cir. 1991) (vacating on due process grounds sentence that appeared to have been based on the trial judge's sense of "religious propriety").
92. Fuerst, 512 N.W.2d at 245 16. Fuerst forbade consideration of religion at sentencing. It explained that the Constitution might allow sentencing courts to consider whether the defendant's religion somehow gave rise to the crime-for example, if the reason that a defendant charged with a drug offense used illicit drugs was that her religious practices involved the use of those drugs. It further stated that a defendant's religion could be considered to provide general information about the defendant's moral character. Id. at 246-47.
93. This latter consideration might itself raise First Amendment concerns, if the absence of religious beliefs is deemed to be evidence of lack of moral fiber.
94. See, e.g., Josh Bowers, Punishing the Innocent, 156 U. PA. L. REV. 1117, 1155 n. 195 (2008) ("In 2002, the plea rate nationally was 95% for all state court felony convictions.").
95. William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 111 HARV. L. REV. 2548, 2568 (2004) (explaining that in 2000 there was a "federal guilty plea rate of 95% ⋯ [and] [i]n some federal districts, the rate exceeds 99%").
96. United States v. Tucker, 404 U.S. 443, 446 (1972); see also United States v. Morgan, 595 F.2d 1134, 1136 (9th Cir. 1979) ("[J]udges have discretion to consider a wide variety of information from a variety of sources in order to tailor the punishment to the criminal rather than to the crime.").
97. United States v. Doyle, 348 F.2d 715, 721 (2d Cir. 1965) ("The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it. Its synopsis should include the unfavorable, as well as the favorable, data, and few things could be so relevant as other criminal activity of the defendant, particularly activity closely related to the crime at hand.").
98. See supra note 28.
99. See, e.g., Ricardo J. Bascuas, The American Inquisition: Sentencing After the Federal Guidelines, 45 WAKE FOREST L. REV. 1, 41-74 (2010).
100. Sara Sun Beale, Procedural Issues Raised by Guidelines Sentencing: The Constitutional Significance of the "Elements of the Sentence," 35 WM. & MARY L. REV. 147 (1993).
101. Alan Dubois & Anne E. Blanchard, Sentencing Due Process: How Courts Can Use Their Discretion to Make Sentencing More Accurate and Trustworthy, 18 FED. SENT'G REP. 84 (2006).
102. Michael S. Pardo, Confrontation Clause Implications of Constitutional Sentencing Options, 18 FED. SENT'G REP. 230 (2006).
103. U.S. CONST, amend. V.
104. See Witte v. United States, 515 U.S. 389, 395-96(1995) ("[T]he Clause serves the function of preventing both successive punishment and successive prosecution ⋯") (quoting United States v. Dixon, 509 U.S. 688, 704 (1993)); cf. Witte, 515 U.S. at 407 (Scalia, J., concurring) (arguing that the clause prohibits only successive prosecutions, not successive punishments).
105. Green v. United States, 355 U.S. 184, 187 (1957).
106. Courts, in fact, often increase sentences based on prior convictions. See Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998) (remarking that the "prior commission of a serious crime ⋯ is as typical a sentencing factor as one might imagine.");
107. see also Carissa Byrne Hessick, Why Are Only Bad Acts Good Sentencing Factors?, 88 B.U. L. REV. 1109, 1114-16 (2008) [hereinafter Hessick, Bad Acts].
108. Although this practice may also violate the Double Jeopardy Clause, it is not an example of sentencing exceptionalism. Prior convictions are used not only as an aggravating sentencing factor, but also as an element in some crimes, see id. at 1114 (discussing habitual offender statutes).
109. This does not undercut our thesis that courts generally underenforce rights at sentencing; it may demonstrate only that courts have eroded the Double Jeopardy Clause at both sentencing and trial.
110. See. e.g., United States v. Watts, 519 U.S. 148, 156-57 (1997); State v. Clark, 197 S.W.3d 598, 602 (Mo. 2006);
111. State v. Winfield, 23 S.W.3d 279, 282 (Tenn. 2000); State v. Dunlap, No. 217123,2001 WL 776752, at
112. 3 (Mich. Ct. App. Jan. 16, 2001); see also U.S. SENTENCING GUIDELINES MANUAL § lBl.3(a) (2010).
113. For additional commentary on the double jeopardy issue, see Shors, supra note 10, at 1363-69.
114. It is clear that the offense forming the basis of the enhancement is the "same" as the conduct for which the defendant was acquitted. In Blockburger v. United States, 284 U.S. 299, 304 (1932)
115. the Supreme Court explained that two offenses are the same unless each requires proof of a fact that the other does not. Under this test, the enhancement and the acquitted offense are the same.
116. The enhancement is based on the fact that that the defendant committed the very criminal act for which he was acquitted. To obtain the enhancement, the prosecutor must prove the same elements of the offense for which the defendant was acquitted.
117. In short, the crime for which the defendant was acquitted depends on no facts that need not be proven for the enhancement.
118. See Witte v. United States, 515 U.S. 389, 407 (1995) (Scalia, J., concurring) (noting that there is "no real difference" between "punishing twice for the same offense" and "punishing twice as much for one offense" solely because the defendant also committed another offense, for which the defendant will also be punished).
119. Mat 399-401.
120. Watts, 519 U.S. at 154; see also Witte, 515 U.S. at 402-03. Watts illustrates the point. There, Watts was charged with possession of cocaine and possession of a firearm after police discovered a bucket containing the cocaine and firearms in his residence. Watts was convicted of the cocaine charge but acquitted of the firearms charge. Watts, 519 U.S. at 149-50.
121. The Court explained that a sentencing enhancement based on the possession of firearms, however, could be appropriate, because the presence of firearms with the cocaine could render the possession of cocaine more dangerous. Id. at 154-56.
122. See United States v. Plisek, 657 F.2d 920, 927 (7th Cir. 1981) (upholding sentence based on "the circumstances surrounding a prior acquittal" because of the information those facts provided about "the background, character and conduct");
123. Billiteri v. U.S. Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976) (stating that a "sentencing judge may properly take into account evidence of crimes of which the accused was acquitted" because that evidence bears on "the personal history and behavior of the convicted accused");
124. State v. Ramsay, 499 A.2d 15, 22 (Vt. 1985); see also Watts, 519 U.S. at 155 ("consideration of information about the defendant's character at sentencing does not result in 'punishment' for any offense other than the one of which the defendant was convicted").
125. See generally Benjamin R. King, Departures From the Federal Sentencing Guidelines Based on Prior Dissimilar Nonconvicted Conduct: A Call for a Finding of Relatedness, 72 S. CAL. L. REV. 899 (1999).
126. U.S. CONST, amend. VI (guaranteeing the "right to a ⋯ trial, by an impartial jury"). Article III of the Constitution also guarantees the right to a jury trial. U.S. CONST, art. Ill, § 2, cl. 3 ("The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ⋯"). For convenience, we shall refer only to the Sixth Amendment right. 59. See, e.g., Blakely v. Washington, 542 U.S. 296, 305-06 (2004);
127. Apprendi v. New Jersey, 530 U.S. 466, 477-78 (2000);
128. see also THE FEDERALIST NO. 83, at 499 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.");
129. Barkow, supra note 12, at 48-65 (tracing the importance of the jury in American history).
130. Apprendi, 530 U.S. at 477-79; In re Winship, 397 U.S. 358, 361 (1970).
131. Apprendi considered only the procedural requirement that a jury make findings necessary to increasing sentences beyond the statutory maximum. It did not consider the more substantive question whether conduct for which the jury acquitted could be the basis for punishment. Even so, Apprendi's holding highlights the importance of the jury trial guarantee in the imposition of punishment.
132. See. e.g., United States v. White, 551 F.3d 381, 391-97 (6th Cir. 2008) (en banc) (Merritt, J., dissenting);
133. Bilsborrow, supra note 10, at 320-33; Shors, supra note 10, at 1382-91.
134. White, 551 F.3d at 394 (en banc) (Merritt, J., dissenting); Joh, supra note 12, at 910-11;
135. see also Barkow, supra note 12, at 99-100. Juries ordinarily do not impose sentence in non-capital cases.
136. See Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 VA. L. REV. 311, 314 (2003) ("Only six states currently employ jury sentencing in non-capital cases, down from thirteen in I960.")
137. In capital cases, however, a jury decides whether to impose the death penalty.
138. For examples of courts permitting increased sentences on the basis of uncharged conduct, see Williams v. New York, 337 U.S. 241 (1949);
139. State v. Green, 303 A.2d 312 (N.J. 1973); State v. Carico, 968 S.W.2d 280 (Tenn. 1998).
140. For a particularly striking example of the effect uncharged conduct can have on sentencing
141. see Logan G. Carver, Prieto Gets Life in Prison for Beating, LUBBOCK AVALANCHE-JOURNAL, May 14, 2010 (reporting that a defendant who was eligible for parole received a sentence of life in prison based on prosecutors' efforts to prove him guilty of a number of crimes for which he had not yet been convicted).
142. See Lear, supra note 8, at 1206 (noting that allowing uncharged conduct to increase sentences is "an open invitation" to prosecutors "to 'undercharge' and beef up the punishment level at the sentencing hearing");
143. David Yellen, Reforming the Federal Sentencing Guidelines' Misguided Approach to Real-Offense Sentencing, 58 .STAN. L. REV. 267, 275 (2005) ("It is one thing to consider facts about an offense for which the defendant has been convicted. It is quite another to allow the government to bypass the trial or plea bargaining process but still obtain the sentencing 'benefit' of the alleged criminal conduct."). (Pubitemid 41654961)
144. After Blakely v. Washington, 542 U.S. 296 (2004)
145. A judge cannot increase a sentence beyond the statutory maximum based on uncharged conduct. But the important question is whether a judge may cite uncharged conduct as the reason for increasing a sentence although staying within the statutory maximum.
146. See Joh, supra note 12, at 910-11 (making such an argument).
147. Of course, the imposition of punishment at sentencing based on unconstitutional considerations, even if found by a jury, should be impermissible.
148. Williams, 337 U.S. at 247; United States v. Miller, 588 F.2d 1256, 1266 (9th Cir. 1978) (considering uncharged conduct assists the judge in imposing a "proper sentence" that is "based on an accurate evaluation of the particular offender and designed to aid in his personal rehabilitation");
149. Green, 303 A.2d at 323 (information about prior arrests was necessary to allow sentencing courts access to "total data ⋯ to enable a tailoring of the sentence to fit the offender as well as the offense"); Carico, 968 S.W.2d at 287-88.
150. Courts have occasionally argued that the consideration of conduct for which the defendant was not convicted is no more objectionable than the consideration of other sentencing factors that pose potential constitutional problems. See, e.g., United States v. Doyle, 348 F.2d 715, 721 (2d Cir. 1965) ("To argue that the presumption of innocence is affronted by considering unproved criminal activity is as implausible as taking the double jeopardy clause to bar reference to past convictions.").
151. But the argument does not justify enhancements based on unproven conduct. Courts may be erring in allowing those other sentencing factors. The existence of bad law does not justify creating more bad law.
152. E.g., United States v. Watts, 519 U.S. 148, 155 (1997) ("[The] 'acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt' ⋯ [I]t is impossible to know exactly why a jury found a defendant not guilty on a certain charge.").
153. See Lear, supra note 8, at 1207 (allowing sentencing increases based on uncharged and acquitted conduct "demonstrates an unquestioning faith in a single judge's ability to accurately assess whether a defendant 'really' committed additional crimes," and it "treats trial procedures designed to avoid incorrect assessments of guilt as mere surplusage, having no bearing on the truth of the accusation").
154. 1 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM 18 (Alfred Blumstein et al. eds., 1983) ("The strongest and most persistently found effect of case-processing variables is the role of guilty pleas in producing less severe sentences");
155. Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 1034 (2006) ("[I]ndividuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.").
156. See O'Hear, supra note 10, at 1557-58; Andrew Neal Siegel, Note, The Sixth Amendment on Ice-United States v. Jones: Whether Sentence Enhancements for Failure to Plead Guilty Chill the Exercise of the Right to Trial, 43 AM. U. L. REV. 645 (1994);
157. see also Barkow, supra note 12, at 97-98.
158. North Carolina v. Pearce, 395 U.S. 711, 725 (1969) (voicing concern that fear of vindictiveness "may unconstitutionally deter a defendant's exercise of right to appeal").
159. Blakely v. Washington, 542 U.S. 296, 305-06 (2004).
160. Corbitt v. New Jersey, 439 U.S. 212, 221-24 (1978); Brady v. United States, 397 U.S. 742 (1970).
161. Prior to these decisions, at least one circuit court held that longer sentences could not be imposed on defendants who insisted on proceeding to trial. See United States v. Wiley, 278 F.2d 500, 504 (7th Cir. 1960).
162. Alabama v. Smith, 490 U.S. 794, 802 03 (1989).
163. See United States v. Jones, 997 F.2d 1475, 1477 (D.C. Cir. 1993) (en banc) (questioning "the ultimate validity of distinctions between denials of leniency and enhancements of punishment").
164. The Supreme Court has not offered a defense of distinguishing between denial of leniency and increasing punishment, saying only that its jurisprudence regarding plea bargains supports the distinction. See Corbitt, 439 U.S. at 223-24.
165. Distinguishing between reward and penalty is all the more difficult under the post-Blakely and Booker worlds of indeterminate sentencing.
166. Determinate sentencing schemes created baseline sentences based on the particular offense of conviction. Under these schemes, sentence reductions based on guilty pleas could more readily be classified as leniency since they were the product of pre-determined deductions from the presumptive sentence. See United States v. Klotz, 943 F.2d 707, 710 (7th Cir. 1991).
167. Under indeterminate sentencing schemes, there is no presumptive sentence for an offense. Thus, the differential sentences between those who plead and those who go to trial cannot be conclusively categorized as the result of leniency or punishment.
168. See United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 210 (2003) (under the doctrine of unconstitutional conditions, "the government may not deny a benefit to a person on a basis that infringes his constitutionally protected ⋯ freedom of speech even if he has no entitlement to that benefit");
169. Richard A. Epstein, Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 5, 7 (1988).
170. See, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984) (holding that Congress cannot, consistent with the First Amendment, condition support for broadcast stations on an agreement to broadcast competing viewpoints);
171. Wieman v. Updegraff, 344 U.S. 183 (1952) (holding that government cannot condition government employment on taking an oath regarding political affiliation);
172. see also Note, Unconstitutional Conditions, 73 HARV. L. REV. 1595, 1599-1600 (1960) ("Denying a benefit because of the exercise of a right in effect penalizes that exercise, making it tantamount to a crime.").
173. Some courts have attempted to characterize the sentencing increases imposed on those defendants who proceed to trial as attributable not to an exercise of the defendant's trial rights, but rather as a response to the lack of remorse or failure to accept responsibility that proceeding to trial embodies. E.g., Brady v. United States, 397 U.S. 742, 753 (1970) (noting that a defendant "demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary");
174. Jones, 997 F.2d at 1478, 1480 (noting that "[t]he law also has long recognized that a defendant's decision to plead guilty is good evidence of acceptance of responsibility and possibly even sincere remorse" and, therefore, a "judge may consider the defendant's decision to go to trial as evidence that the defendant's ultimate acceptance [of responsibility] may have been half-hearted"). But, as noted in infra Parts II.C and II.D, sentencing a defendant based on a perceived lack of remorse raises its own constitutional concerns.
175. U.S. CONST, amend. V ("No person ⋯ shall be compelled in any criminal case to be a witness against himself.⋯").
176. Bram v. United States, 168 U.S. 532, 542 13 (1897).
177. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347 (1963).
178. In some, though not all, circumstances evidence obtained in violation of the Fifth Amendment may be used for impeachment purposes. See Kansas v. Ventris, 129 S. Ct. 1841, 1845 (2009) (delineating the circumstances where evidence obtained in violation of self-incrimination clause may be used for impeachment).
179. Griffin v. California, 380 U.S. 609 (1965).
180. See Kastigar v. United States, 406 U.S. 441, 444-5 (1972) (the privilege "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory"). Indeed, the Court has read the clause to limit the government's ability to extract statements outside the courthouse. E.g., Miranda v. Arizona, 384 U.S. 436 (1966) (holding, based on the privilege against self-incrimination, that before interrogating a suspect in custody, police must inform that suspect of his right to remain silent).
181. See, e.g., State v. Coleman, 984 A.2d 650, 655 (R.I. 2009);
182. Hersick v. State, 904 So.2d 116, 128 (Miss. 2004);
183. State v. Hammond, 742 A.2d 532, 538-39 (N.H. 1999); Phelps v. State, 914 N.E.2d 283, 293 (Tnd. Ct. App. 2009);
184. State v. Collins, 290 S.W.3d 736, 747 (Mo. Ct. App. 2009);
185. McClain v. State, 469 S.E.2d 756 (Ga. Ct. App. 1996);
186. People v. Stewart, 68 A.D.3d 1438, 1438 (N.Y. App. Div. 2009).
187. Some federal courts operating under the Guidelines scheme have pointed to USSG § 3E1.1, which calls for a reduction for an offender who "accepts responsibility" for her crime, see, e.g., United States v. Herrera-Zuniga, 571 F.3d 568, 574 n.2 (6th Cir. 2009), while others have concluded that lack of remorse is an independent consideration at sentencing authorized by 18 U.S.C. § 3553(a), see United States v. Douglas, 569 F.3d 523, 528 (5th Cir. 2009).
188. The latter group has the better understanding: Defendants who proceed to trial could receive a sentencing reduction for expressing remorse at sentencing, see, e.g., United States v. Jones, 997 F.2d 1475 (D.C. Cir. 1993) (reviewing sentencing reduction for defendant who proceeded to trial, but also received Federal Sentencing Guidelines reduction for acceptance of responsibility), while a defendant who pleads guilty will not receive a sentencing reduction if she appears insufficiently remorseful, see United States v. Purchess, 107 F.3d 1261, 1269 (7th Cir. 1997) ("a guilty plea entered for the apparent purpose of obtaining a lighter sentence does not entitle a defendant to a reduction for acceptance of responsibility").
189. As for federal courts operating outside the Guidelines, they have recognized that whether a defendant expresses remorse is an appropriate factor forjudges to consider in their sentencing discretion. See, e.g., United States v. Malquist, 791 F.2d 1399, 1402-03 (9th Cir. 1986) ("inclusion of [defendant's] lack of repentance in the court's sentencing calculus was permissible").
190. See O'Hear, supra note 10, at 1556-57; Luke T. Dokla, Note, Section 3E1.1 Contrition and Fifth Amendment Incrimination: Is There an Iron Fist Beneath the Sentencing Guidelines' Velvet Glove?, 65 ST. JOHN'S L. REV. 1077 (1991).
191. See Mitchell v. United States, 526 U.S. 314, 328-29 (1999)
192. ("[A] sentencing hearing is part of the criminal case-the explicit concern of the self-incrimination privilege. In accordance with the text of the Fifth Amendment, we must accord the privilege the same protection in the sentencing phase of 'any criminal case' as that which is due in the trial phase of the same case.").
193. 526 U.S. at 328.
194. Id.
195. Id. at 330.
196. See, e.g., State v. Kamana'o, 82 P.3d 401, 407 (Haw. 2003).
197. But see German v. State, 27 So.3d 130 (Fla. Dist. Ct. App. 2010) (acknowledging the defendant's Fifth Amendment right to remain silent at the presentencing investigation).
198. See generally State v. Burgess, 943 A.2d 727, 734-35 (N.H. 2008) (noting disagreement among courts on this issue).
199. See, e.g., Miller v. Walker, 413 F. Supp. 2d 251, 261 (W.D.N.Y. 2006).
200. See, e.g., Burr v. Pollard, 546 F.3d 828, 832 (7th Cir. 2008);
201. United States v. Bangert, 645 F.2d 1297, 1308-09 (8th Cir. 1981);
202. El v. Artuz, 105 F. Supp. 2d 242, 255 (S.D.N.Y. 2000)
203. People v. Wesley, 411 N.W.2d 159, 162-65 (Mich. 1987)
204. State v. Barnes, 637 A.2d 398,402-03 (Conn. App. Ct. 1994)
205. see also United States v. Kennedy, 499 F.3d 547, 551-52 (6th Cir. 2007) (interpreting Mitchell to permit sentencing increase based on defendant's refusal to complete testing designed to "determin[e] his propensity for future dangerousness").
206. Some courts provide even less analysis, dismissing claims of Fifth Amendment violations by noting only that lack of remorse is a common sentencing factor. E.g., Bohan v. Kuhlmann, 234 F. Supp. 2d 231, 271 (S.D.N.Y. 2002)
207. Geraci v. Senkowski, 23 F. Supp. 2d 246, 267-68 (E.D.N.Y. 1998).
208. But see State v. Meister, No. 30152, 2007 WL 2821981, at
209. 15 (Idaho Ct. App. Oct.l, 2007), vacated on other grounds, 220 P.3d 1055 (Idaho 2009) (finding that imposition of longer sentence based on protestations of innocence at sentencing violates Fifth Amendment)
210. State v. Kamana'o, 82 P.3d 401, 407-10 (Haw. 2003) (similar).
211. Hartman v. Moore, 547 U.S. 250, 256 (2006) ("[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out⋯.").
212. The prohibition, of course, is not complete. Certain types of speech-such as obscenity, libel, and disclosure of state secrets-do not fall within the protections of the First Amendment, see District of Columbia v. Heller, 554 U.S. 570, 683 (2008)
213. and some speech, such as commercial speech, enjoys only partial protection, see Thompson v. W. States Med. Ctr., 535 U.S. 357, 367 (2002).
214. Still, the exceptions to the First Amendment are narrowly drawn. The general rule is that the government may not punish a person for her speech. Indeed, so important is this protection that courts have created an exception to the rules regarding facial challenges. Ordinarily, a law survives a facial challenge if there are any conceivable constitutional applications.
215. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) ("a plaintiff can only succeed in a facial challenge by 'establishing] that no set of circumstances exists under which the Act would be valid,' i.e., that the law is unconstitutional in all of its applications.").
216. But in the First Amendment context, a court may strike a law with some constitutional applications if it also prohibits a substantial amount of protected speech. United States v. Williams, 553 U.S. 285, 292 (2008) ("According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech").
217. See United States v. United Foods, Inc., 533 U.S. 405, 410 (2001) ("Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views.")
218. Wooley v. Maynard, 430 U.S. 705, 714 (1977) (noting that "the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all" and that "[t]he right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind'").
219. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633-34 (1943) ("To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind").
220. See Dawson v. Delaware, 503 U.S. 159, 163-64 (rejecting defendant's argument that "the Constitution forbids the consideration in sentencing of any evidence concerning beliefs or activities that are protected under the First Amendment" as "too broad" a principle).
221. See supra notes 87-89, 94-96 and accompanying text.
222. See, e.g., Kapadia v. Tally, 229 F.3d 641, 647 (7th Cir. 2000) (upholding sentence increase based on anti-semitic statements, which reflected lack of remorse).
223. See O'Hear, supra note 10, at 1558-59; see also Brent T. White, Say You're Sorry: Court-Ordered Apologies as a Civil Rights Remedy, 91 CORNELL L. REV. 1261, 1298-99 (2006) (noting that "an apology ideally contains a statement of remorse, an acknowledgment of responsibility, and a promise of forbearance" and that "[b]ecause such statements strike at the heart of an individual's conscience, ordering an individual to apologize raises core First Amendment concerns").
224. Cf. Hessiek, Bad Acts, supra note 50, at 1156 (noting that "there are undoubtedly people who think that some of our criminal prohibitions are inappropriate," for example, "we do not have a complete public consensus that the use or abuse of certain substances should be illegal").
225. Abood v. Detroit Bd. of Educ, 431 U.S. 209, 234-35 (1977)
226. see also Bamette, 319 U.S. at 642 ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ⋯.").
227. For example, in affirming a defendant's sentence the Ninth Circuit stated: Smith argues that his First Amendment free speech and Fifth Amendment due process rights were violated because he was punished with a higher sentence for expressing his views on the district court's lack of jurisdiction. But the district court made it clear that it was increasing the sentence based on Smith's lack of remorse, and his threat to the financial safety of the public when released. These are legitimate sentencing factors.
228. United States v. Smith, 424 F.3d 992, 1016 (9th Cir. 2005).
229. Kapadia v. Tally, 229 F.3d 641, 647 (7th Cir. 2000) (relating lack of remorse to low likelihood of rehabilitation)
230. accord United States v. Rosenberg, 806 F.2d 1169, 1179 (3d Cir. 1986)
231. State v. Baldwin, 304 N.W.2d 742, 751-52 (Wis. 1981) (stating that "[a] defendant's attitude toward the crime may be relevant" in these assessments)
232. see also United States v. Miller, 343 F.3d 888 (7th Cir. 2003) (acknowledging remorse may not convince the sentencing judge of the defendant's prospects for rehabilitation).
233. At least one court has suggested that, although lack of remorse is an appropriate sentencing factor, it is impermissible for a judge to consider a defendant's "social or political views" in imposing sentence.
234. United States v. Brown, 479 F.2d 1170, 1174 (2d Cir. 1973) ("Although Judge Travia's statement that Brown must 'take responsibility for saying those words' is not entirely free from doubt, we are satisfied from the sentencing minutes, considered as a whole, that he did not base the sentence on his revulsion arising out of Brown's social or political views, which would be improper.").
235. The First Amendment limits the ability to regulate protected speech, even when the reason for the regulation is to achieve a secondary purpose. See, e.g., New Albany DVD, LLC v. City of New Albany, 581 F.3d 556, 561 (7th Cir. 2009)
236. see also City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 449 (2002) (Kennedy, J., concurring in the judgment) (stating that, when government regulates speech to suppress secondary effects, it "must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact").
237. By contrast, courts have generally upheld laws that seek to regulate unprotected activity, but that nevertheless burden speech. See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175, 1177-78 (1996).
238. For example, in City of Erie v. Pap's A.M., 529 U.S. 277 (2000)
239. the Court upheld a prohibition on nude dancing because "the ordinance does not attempt to regulate the primary effects of the expression, i.e., the effect on the audience of watching nude erotic dancing, but rather the secondary effects, such as the impacts on public health, safety, and welfare" caused by nude dancing establishments. Id. at 291. Similarly, in United States v. O'Brien, 391 U.S. 367 (1968)
240. the Court upheld a prohibition on the burning of draft cards on the theory that the prohibition was aimed at the unprotected conduct of burning the cards, not at suppressing the message of draft resistance that protestors sought to convey by burning their draft cards. Id. at 382.
241. See New Albany DVD, 581 F.3d at 559 ("reduction in adverse secondary effects may not be achieved just by curtailing speech").
242. Of course, the government may regulate speech when its interest is sufficiently strong. Thus, for example, the government may forbid perjury because of its impact on the judicial system.
243. See generally Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L. REV. 1449, 1484-85 (2005) (noting a number of ways in which criminal defendants' speech is regulated).
244. See, e.g., United States, v. Wilson, 421 U.S. 309, 315-16 (1975).
245. Bridges v. California, 314 U.S. 252, 266 (1941) (justifying constitutionality of the contempt power on the ground that it is necessary to "protect [courts] from disturbances and disorder in the court room")
246. United States, v. Wilson, 421 U.S. 309, 316 (1975) (stating that the refusal to testify "disrupts and frustrates an ongoing proceeding, as it did here, summary contempt must be available to vindicate the authority of the court as well as to provide the recalcitrant witness with some incentive to testify").
247. E.g., United States v. Miller, 343 F.3d 888, 890-91 (7th Cir. 2003) (stating "the district court must decide whether the defendant has indeed accepted responsibility and evinced a character trait that implies a lower risk of recidivism").
248. See Wooley v. Maynard, 430 U.S. 705, 715-16 (1977).
249. See Schall v. Martin, 467 U.S. 253, 264 (1984) (identifying prevention of crime as compelling interest).
250. For a law to be narrowly tailored, it cannot infringe on the First Amendment any more than is necessary to accomplish the government's compelling interest. This has both qualitative and quantitative components.
251. The government cannot cause a greater infringement of one person's First Amendment rights than necessary to accomplish its compelling interest; nor can the government infringe the First Amendment rights of more people than necessary to recognize that interest. See United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 815-16 (2000).
252. As Michael O'Hear has explained: Despite the conventional wisdom that present feelings of remorse predict future desistance from crime, very little research has been done to substantiate the remorse-recidivism connection. To be sure, psychologists recognize that a person's feelings of guilt regarding something he or she has done tend to induce pro-social behavior ⋯ But it is far from clear that the emotion that sentencing judges characterize as "remorse" or "contrition" is the same (or at least has the same behavioral consequences) as the emotion that psychologists label "guilt," as opposed, for instance, to such emotions as shame and embarrassment, with which guilt is often confused.
253. Michael H. O'Hear, Appellate Review of Sentences: Reconsidering Deference, 51 WM. & MARY L. REV. 2123, 2144-45 (2010).
254. For an obvious example, compare the father who feels no remorse for killing the murderer of his children but is unlikely to kill again because his crime arose from unique circumstances, and the robber who feels bad about his crime but nevertheless will rob again if he needs money.
255. Cf. Rebecca Frank Dallet, Note, Foucha v. Louisiana: The Danger of Commitment Based on Dangerousness, 44 CASE W. RES. L. REV. 157 (1993) (arguing that basing the decision to commit those defendants found not guilty by reason of insanity violates due process if based only on predictions of future dangerousness).
256. In re Winship, 397 U.S. 358, 359 (1970).
257. See Simmons v. South Carolina, 512 U.S. 154, 163 (1994) ("Arguments relating to a defendant's future dangerousness [are ordinarily] inappropriate at the guilt phase of a trial, as the jury is not free to convict a defendant simply because he poses a future danger ⋯ & "). Several procedural protections in criminal trials-such as the presumption of innocence and the requirement of proof beyond a reasonable doubt-operate to preserve this basic principle as well.
258. People v. Juillet, 475 N.W.2d 786, 811 (Mich. 1991) (&"The act requirement ⋯ guarantees that the accused has done something to merit punishment, preserves the sphere of personal autonomy in which an individual can think and act without fear of government intrusions, and prevents arbitrary and abusive exercise of government power in the criminal law arena.&");
259. Jonathan C. Carlson, The Act Requirement and the Foundations of the Entrapment Defense, 73 VA. L. REV. 1011, 1023 (1987) (&"One who does not violate the law is presumed not to deserve punishment&").
260. To be sure, the failure to act can be the basis for criminal liability in situations where an individual has a duty to act, but only because we conceptualize the omission as a voluntary act of restraint. See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 105 (5th ed. 2009) (&"[A] defendant's omission of a common law duty to act, assuming that she was physically capable of performing the act, serves as a legal substitute for a voluntary act.&") (emphasis in original).
261. DRESSLER, supra note 123, at 397.
262. See, e.g., 18 U.S.C. § 3553(a)(2)(C) (2006) (directing courts to consider the need &"to protect the public from further crimes of the defendant&" in imposing sentence);
263. U.S. SENTENCING GUIDELINES MANUAL § 4A 1.3(a)(1) (2010) (&"If reliable information indicates that the defendant's criminal history category substantially under-represents &mellip; the likelihood that the defendant will commit other crimes, an upward departure may be warranted.&");
264. HAW. REV. STAT. § 706-621(2)(g) (2010) (providing for mitigation if the &"character and attitudes of the defendant indicate that the defendant is unlikely to commit another crime&");
265. IDAHO CODE ANN. § 19-2521(l)(a) (2010) (imprisonment may be appropriate if there &"is undue risk that &mellip; the defendant will commit another crime&");
266. N.J. STAT. ANN. § 2C:44-l(a)(3) (2010) (identifying the &"risk that the defendant will commit another offense&" as an aggravating sentencing factor); see also IDAHO CODE ANN. § 19-252 l(2)(i) (2010) (providing for mitigation if &"character and attitudes of the defendant indicate that the commission of another crime is unlikely&").
267. Indeed, many aggravating sentencing factors can trace their roots to concerns about recidivism. See, e.g., OHIO REV. CODE ANN. § 2929.12(D) (2010) (directing courts to consider prior offenses, drug or alcohol use, and lack of remorse as indications of future risk).
268. See, e.g., Jonathan Simon, Positively Punitive: How the Inventor of Scientific Criminology Who Died at the Beginning of the Twentieth Century Continues to Haunt American Crime Control at the Beginning of the Twenty-First, 84 TEX. L. REV. 2135, 2168-70(2006) (noting the &"incapacitative thrust&" of the modern &"War on Crime&").
269. Note, The Constitutionality of Statutes Permitting Increased Sentences for Habitual or Dangerous Criminals, 89 HARV. L. REV. 356, 377 (1975).
270. See Smith v. Goguen, 415 U.S. 566, 572 n.8 (1974).
271. See, e.g., id. at 572-73.
272. BLACK'S LAW DICTIONARY 39 (9th ed. 2009).
273. See McBoyle v. United States, 283 U.S. 25, 27 (1931).
274. Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); see also Carlson, supra note 123, at 1024.
275. In Specht v. Patterson, 386 U.S. 605, 608-09 (1967), the Court struck down a criminal law that enabled the State to punish for potential future criminal acts, but in doing so did not consider the due process concerns of punishing for future acts.
276. See, e.g., statutes cited supra, note 125.
277. See, e.g., CAL. R. CT. 4.414(b)(4); OHIO REV. CODE ANN. § 2929.12(D).
278. The paucity of challenges may be attributable to the wide-spread acceptance of incapacitation as a sentencing goal.
279. Alexander v. Commonwealth, No. 2008-CA-000479-MR, 2009 WL 2834957, at 279 2 (Ky. Ct. App. Sept. 4, 2009) (unpublished opinion) (quoting Jurek v. Texas, 428 U.S. 262, 275 (1976)).
280. State v. Ramsey, No. CA97-03-025, 1997 WL 786198, at 281 3 (Ohio Ct. App. Dec. 22, 1997), rev'don other grounds, 701 N.E.2d 694 (Ohio 1998).
281. Jurek v. Texas, 428 U.S. 262 (1976).
282. The challenge in Jurek was only that future dangerousness was so broad that it failed to provide a criterion by which juries could meaningfully distinguish between defendants.
283. In rejecting that claim, the Court did not address the separate question whether allowing future dangerousness as an aggravating factor provides adequate notice of conduct individuals should avoid.
284. Mat 275.
285. Cf. Lear, supra note 8, at 1208 (noting that, in response to constitutional challenges to other sentencing factors, &"the courts of appeals have consistently answered such claims with a description of the current system, rather than a discussion of the constitutional propriety of punishment&" imposed by the system).
286. See Michaels, supra note 23, at 1775 (noting that courts have sometimes based their sentencing decisions on &"historical practice,&" and further noting that the justification is not offered when it does not support the courts' desired result).
287. See Mitchell v. United States, 526 U.S. 314,340 (1999) (Scalia, J., dissenting) (stating that &"determinations of acceptance of responsibility, repentance, character, and future dangerousness, in both federal and state prosecutions &mellip; is probably the bulk of what most sentencing is all about&").
288. According to originalists, the Constitution should be interpreted &"as originally understood by the people who ratified it.&" Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 551 (1994).
289. Original meaning is also relevant for non-originalists, but unlike with originalists, it is not the only consideration that informs constitutional meaning.
290. See Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting, 91 GEO. LJ. 1113, 1126 (2003) (&"For example, 'non-originalist' scholars often employ originalist methodology to establish a historical baseline for non-originalist inquiry &mellip;&").
291. See Apprendi v. New Jersey, 530 U.S. 466, 478-81 (2000);
292. see also supra notes 12-13. But cf. Williams v. New York, 337 U.S. 241, 246 (1949) (&"[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.&").
293. See Apprendi, 530 U.S. at 480 n.7 (noting that, while judges exercised no discretion in sentencing for felonies, the &"common law of punishment for misdemeanors&" was &"substantially more dependent upon judicial discretion,&" and judges &"most commonly imposed discretionary 'sentences' of fines or whippings upon misdemeanants&").
294. Apprendi, 530 U.S. at 481 (noting &"the 19th-century shift in this country from statutes providing fixed-term sentences to those providing judges discretion within a permissible range&").
295. To be sure, courts had begun considering these sentencing factors at the time of the adoption of the Fourteenth Amendment. But in evaluating the constitutionality of state conduct, the Supreme Court has not considered the practice in 1868; instead, it has continued to look to the practice in 1791 to evaluate the constitutionality of state sentencing schemes.
296. See, e.g., Blakely v. Washington, 542 U.S. 296 (2004); Apprendi, 530 U.S. 466; cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) (rejecting the argument that the state and federal government should be subject to different standards under the Fifth and Fourteenth amendments).
297. See Michaels, supra note 23, at 1775.
298. See Steven D. Smith, Discourse in the Dusk: The Twilight of Religious Freedom?, 122 HARV. L. REV. 1869, 1900 (2009) (book review) (describing constitutional meaning based on the &"traditions and collective conscience of the American people&");
299. cf. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
300. This argument is not simply one of precedent and stare decisis. To be sure, courts often justify sentencing decisions rejecting constitutional claims by pointing to a line of earlier sentencing decisions rejecting similar claims. E.g., El v. Artuz, 105 F. Supp. 2d 242, 255 (S.D.N.Y. 2000) (lack of remorse);
301. State v. Clark, 197 S.WJd 598, 600 (Mo. 2006) (uncharged conduct);
302. State v. Ramsey, No. CA97-03-025, 1997 WL 786198, at
303. 3 (Ohio Ct. App. Dec. 22, 1997) (future dangerousness).
304. But obedience to precedent does not establish constitutionality; courts often obey precedent for institutional, rather than constitutional, reasons.
305. See Richard Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. REV. 570, 582 83 (2001).
306. Nonetheless, a long line of decisions upholding the constitutionality of a practice might indeed establish that the practice is constitutional, insofar as the consistency of the conclusions might reflect the best meaning of the Constitution.
307. A long-standing tradition of allowing a practice may suggest that society has accepted the practice as constitutional, which according to Professor Fallon may be sufficient to establish the constitutionality of the practice.
308. See Fallon, Stare Decisis, supra note 150, at 582 (arguing that constitutionality depends on "acceptance coupled with reasonable justice").
309. But, the Court has disregarded such traditions in the past when assessing the constitutionality of sentencing procedures. United States v. Booker, 543 U.S. 220, 235-236 (2005) (rejecting argument about historical tradition in holding Federal Sentencing Guidelines violate the Sixth Amendment jury trial right).
310. Brown v. Bd. of Educ, 347 U.S. 483 (1954).
311. See Lear, supra note 8, at 1185 n. 16.
312. See Republican Party of Minn. v. White, 536 U.S. 765, 785 (2002); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) ("a systematic, unbroken, [unquestioned] practice ⋯ may be treated as a gloss" on the meaning of the Constitution).
313. See Lear, supra note 8, at 1185 ("Tradition is no substitute for constitutionality; the steadfastness with which the courts have proclaimed the constitutionality of [a constitutionally doubtful sentencing factor] should not deter [its] re-examination.").
314. See Carissa Byrne Hessick, Race and Gender as Explicit Sentencing Factors, 14 J. GENDER RACE & JUST 12,129-37 (2010).
315. See supra notes 34-36 and accompanying text. Indeed, the explicit consideration of a defendant's race or gender at sentencing is believed to be so problematic that it results not only in the reversal of a sentence, but also often in the case being assigned to a new judge for re-sentencing. E.g., United States v. Kaba, 480 F.3d 152,159 (2d Cir. 2007);
316. United States v. Leung, 40 F.3d 577, 586-87 (2d Cir. 1994).
317. But see United States v. Borrero-Isaza, 887 F.2d 1349, 1357 (9th Cir. 1989) (finding it unnecessary to remand to different judge for resentencing).
318. See Carissa Byrne Hessick, Ineffective Assistance at Sentencing, 50 B.C. L. REV. 1069, 1100-02 (2009) (noting the increasing formality and constitutional protections at sentencing in recent decades).
319. For example, although sentencing courts "traditionally heard evidence and found facts without any prescribed burden of proof," McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986)
320. courts have more recently stated that due process requires that facts supporting sentencing decisions must be proven by at least a preponderance of the evidence.
321. United States v. Berry, 553 F.3d 273, 280 (3d Cir. 2009) (stating that due process requires that facts supporting sentencing decisions must be proven by at least a preponderance of the evidence);
322. see also Glover v. United States, 531 U.S. 198, 202-04 (2001) (recognizing a right to effective assistance of counsel at sentencing);
323. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that, under the Sixth Amendment, any fact that increases the sentence beyond the statutory maximum must be found by a jury);
324. Mitchell v. United States, 526 U.S. 314, 330 (1999) (extending a portion of the privilege against self-incrimination to sentencing);
325. Burns v. United States, 501 U.S. 129, 138 (1991) (noting that failure to give defendant advance notice of facts that would result in a higher sentence would raise a serious due process question); Mempa v. Rhay, 389 U.S. 128, 137 (1967) (recognizing the right to counsel at sentencing proceedings);
326. Michaels, supra note 23, at 1811 n.l65 (identifying a number of lower court decisions holding that "the defendant must have notice of facts relied upon by the court in noncapital sentencing eases").
327. In any event, the presumption of constitutionality established by historical practice is not conclusive. See White, 536 U.S. at 785
328. Courts would still be required to analyze the constitutional issues to determine whether the presumption has been overcome.
329. Sanford H. Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 HARV. L. REV. 904, 920 (1962).
330. See United States v. Tucker, 404 U.S. 443, 447 (1972) (noting that "a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review"); Note, The Unconstitutionality of Determinate Sentencing in Light of the Supreme Court's "Elements" Jurisprudence, 111 HARV. L. REV. 1236, 1248 (2004) (contending that "if a defendant has been afforded all these constitutional protections and has been convicted by a jury, then he has been adequately protected against an arbitrary liberty restriction by the state" and noting that the possibility that "the defendant might get less than the maximum punishment is immaterial, for he has been adequately protected against the maximum liberty restriction the state has deemed appropriate for the crime of which he has been convicted");
331. Note, Federal Court of Appeals Vacates Sentence on Grounds of Severity and Remands to District Court for Resentencing, 109 U. PA. L. REV. 422, 423 (1961) (noting "the overwhelming weight of authority states that the courts of appeals have no power to review sentences which are within the legal limits" and further noting that "[w]hile there has been no Supreme Court holding on point, Court dicta tend to support the view that, where there is a statutory limit on sentencing, sentences within that limit-though severe-are not reviewable");
332. see also John Bronsteen, Retribution's Role, 84 IND. L.J. 1129, 1139 (2009) (arguing that when an individual has broken the law, she has forfeited her right not to be punished by the state under retributive theory, but that utilitarian concerns may counsel in favor of punishing below the statutory maximum).
333. See Kadish, supra note 160, at 920 (noting the "older theory" that "dispensing less punishment than the legislature authorized was regarded as an act of merciful leniency to which there could be no legal claim, and hence, in the orthodox view, was a privilege and not a right").
334. "There can be no doubt that the constitution continues to operate, even after a valid conviction, in the sentencing process." United States v. Lemon, 723 F.2d 922, 937 (D.C. Cir, 1983);
335. see also Kimmelman v. Morrison, 477 U.S. 365, 380 (1986) ("The constitutional rights of criminal defendants are granted to the innocent and the guilty alike.").
336. This is not to say that rights are absolute at sentencing. As with any rights, rights at sentencing can be trumped by other more important interests or rights.
337. Thus, for example, a state could limit a defendant's rights at sentencing if doing so was necessary to prevent a defendant from fleeing before sentencing or from killing a potential witness at a sentencing hearing.
338. See U.S. CONST, amend VIII.
339. People v. Riley, 33 N.E.2d 872, 875 (111. 1941) (describing convicted defendants at sentencing as "naked criminals, hoping for mercy but entitled only to justice").
340. See Harris v. United States, 536 U.S. 545, 566 (2002) ("The Fifth and Sixth Amendments ensure that the defendant will never get more punishment than he bargained for when he did the crime, but they do not promise that he will receive anything less than that. If. . . the trial jury has found all the facts necessary to impose the maximum,⋯ [t]he judge may select any sentence within the range .⋯") (internal quotation marks omitted);
341. Apprendi v. New Jersey, 530 U.S. 466, 498 (2000) (Scalia, 1, concurring) ("I think it not unfair to tell a prospective felon that if he commits his contemplated crime he is exposing himself to a jail sentence of 30 years-and that if, upon conviction, he gets anything less than that he may thank the mercy of a tenderhearted judge.⋯ But the criminal will never get more punishment than he bargained for when he did the crime ⋯ .");
342. see also McMillan v. Pennsylvania, 477 U.S. 79, 92 n.8 (1986) ("[Cjriminal sentencing takes place only after a defendant has been adjudged guilty beyond a reasonable doubt.
343. Once the reasonable-doubt standard has been applied to obtain a valid conviction, 'the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.'") (quoting Meachum v. Fano, 427 U.S. 215, 224 (1976)).
344. Cf. Shors, supra note 10, at 1379-80 (making a similar argument based on the Due Process Clause).
345. Of course, the law under which the defendant is convicted and sentenced may preempt or otherwise displace the rights conferred from these other sources. But that is a separate issue we do not address here except to say that whether a sentencing law preempts another law depends on the precise content of the sentencing law.
346. See, e.g., Townsend v. Burke, 334 U.S. 736, 741 (1948) (holding that Due Process Clause forbids the imposition of sentence based on false information).
347. Examples include the rights provided by the Bill of Rights, the jury trial guarantee in Article 111, and the restrictions on bills of attainder and ex post facto laws found in Article I.
348. See F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 CORNELL L. REV. 275, 318-19 (2008). Promoting liberty has likewise been a central concern in the development of judicial constitutional doctrine.
349. Doctrines like substantive due process all rest on the theory that preserving liberties against the government is the principal concern of the Constitution.
350. Forfeiture is ordinarily premised on a defendant's bad conduct. See, e.g., Davis v. Washington, 547 U.S. 813, 833 (2006) (forfeiture of right to confrontation when the defendant causes the witness's absence)
351. Yakus v. United States, 321 U.S. 414, 444 (1944) (forfeiture resulting from "the failure to make timely assertion of the right").
352. Being convicted, however, involves no conduct, good or bad, by the defendant; conviction is an act of the court.
353. The bad conduct of the defendant leading to the conviction is the commission of the crime. Conviction is a determination that the defendant has engaged in that bad conduct.
354. Presumably, under the forfeiture theory, a defendant is entitled to constitutional protections during trial because there has not yet been a determination that he in fact engaged in the bad conduct.
355. An individual may also affirmatively waive his constitutional rights. United States v. Olano, 507 U.S. 725, 733 (1993).
356. Because constitutional rights exist to protect individuals against the government, which includes the courts, courts apply a high standard to determine whether a defendant has waived a constitutional right: waiver occurs only when a defendant knowingly and intelligently relinquishes his rights. Brady v. United States, 397 U.S. 742, 748 (1970) ("Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.").
357. Being convicted of a crime does not meet this high standard. Conviction is an action of the court imposing judgment on the defendant. It does not entail any act by the defendant, much less an action that constitutes a knowing and intelligent waiver of rights.
358. See supra note 14.
359. See, e.g., United States v. Bunn, 53 Fed. App'x. 179 (2d Cir. 2002).
360. Turner v. Safley, 482 U.S. 78, 95 (1987) (an inmate "retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system") (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974))
361. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (deliberate indifference to serious medical needs of prisoners by prison officials violates the Eight Amendment and is actionable by prisoners under § 1983)
362. Cruz v. Beto, 405 U.S. 319, 321 n.2 (1972) (per curiam) (prisoners retain limited First Amendment right to free exercise of religion).
363. For an example of this phenomenon, see United States v. Brown, 479 F.2d 1170, 1174-75 (2d Cir. 1973), in which a judge appears to have sentenced a defendant more harshly based on statements about his membership in the Black Panther Party.
364. See generally Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583 (2005) (describing the phenomenon of the government prosecuting a person suspected of one crime for another, lesser crime because of difficulty in proving the more serious crime); Harry Litman, Pretextual Prosecution, 92 GEO. L.J. 1135 (2004).
365. Apprendi v. New Jersey, 530 U.S. 466, 485 (2000) ("[W]e dismissed the possibility that a State could circumvent the protections of Winship merely by 'redefinpng] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.'") (quoting Mullaney v. Wilbur, 421 U.S. 684 (1975)).
366. Although Apprendi involved the procedural constitutional right to a jury, nothing in its reasoning suggest that those concerns about circumvention are limited to procedural constitutional rights. Cf. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 309 (1986) (refusing to draw a distinction in remedies between violations of substantive and procedural constitutional rights).
367. See supra notes 29-42 and accompanying text.
368. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 153 (1980)
369. see also United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938).
370. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 788 (2ded. 1988).
371. See WILLIAM BLACKSTONE, 4 COMMENTARIES 343-44.
372. Powers v. Ohio, 499 U.S. 400, 406 (1991) ("The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system.").
373. see also Kevin K. Washburn, Restoring the Grand Jury, 76 FORDHAML. REV. 2333, 2388 (2008).
374. See Rogers M. Smith, The Constitution and Autonomy, 60 TEX. L. REV. 175 (1982).
375. ee, e.g., United States v. Virginia (VMI), 518 U.S. 515, 532 33 (1996) (discussing the different standards of review used in gender discrimination cases, as compared with those used in racial discrimination cases).
376. See supra notes 81, 96, 107, & 137.
377. See Michael Tonry, Selective Incapacitation: The Debate over Its Ethics, in PRINCIPLED SENTENCING 176 (Andrew von Hirsch & Andrew Ashworth eds., 1992) ("[R]ace is significantly correlated with recorded criminality.").
378. see also U.S. SENTENCING COMMISSION. RECIDIVISM AND THE "FIRST OFFENDER" 21, ex. 1 (2004), available at http://www.ussc.gov/ Research/Research-Publications/Recidivism/200405-Recidivism-First-Offender.pdf [hereinafter FIRST OFFENDER] (noting that white offenders account for 63.5% of all federal offenders with no criminal history points and 61.0% of all federal offenders with a single criminal history point, but they account for only 50.0% of federal offenders with two or more criminal history points
379. in contrast, African American offenders account for 25.7% of all federal offenders with no criminal history points and 30.3% of all federal offenders with a single criminal history point, but they account for significantly more-41.8%-of federal offenders with two or more criminal history points).
380. U.S. SENTENCING COMMISSION, MEASURING RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL SENTENCING GUIDELINES 12 (2004), available at http://www.ussc.gov/publicat/Recidivism-General.pdf [hereinafter MEASURING RECIDIVISM] ("[T]he race of the offender is associated with recidivism rates. Overall, Black offenders are more likely to recidivate (32.8%) than are Hispanic offenders (24.3%). White offenders are the least likely to recidivate (16.0%).").
381. MEASURING RECIDIVISM, supra note 188, at 11 ("Overall, women recidivate at a lower rate than men."); see also FIRST OFFENDER, supra note 188, at 6-7 (noting that the percentage of female offenders grows smaller as recidivism increases).
382. There are a number of older cases indicating that a sentencing judge has a duty to individualize sentences, and cannot sentence an offender based merely on the offense of conviction.
383. See, e.g., United States v. Thompson, 483 F.2d 527, 529 (3d Cir. 1973)
384. United States v. Daniels, 446 F.2d 967, 970-71 (6th Cir. 1971).
385. see also Williams v. Oklahoma, 358 U.S. 576, 585 (1959) (noting that "the exercise of a sound discretion in [sentencing] ⋯ required consideration of all the circumstances of the crime" and that "[i]n discharging his duty of imposing a proper sentence, the sentencing judge is authorized, if not required, to consider all of the mitigating and aggravating circumstances involved in the crime").
386. See United States v. Watts, 519 U.S. 148, 151 (1997) (noting "the longstanding principle that sentencing courts have broad discretion to consider various kinds of information"); Payne v. Tennessee, 501 U.S. 808, 820-21 (1991) ("[T]he sentencing authority has always been free to consider a wide range of relevant material.")
387. United States v. Tucker, 404 U.S. 443, 446 (1972) ("[I]n determining what sentence to impose ⋯ a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come")
388. Cross v. United States, 354 F.2d 512, 515 (D.C. Cir. 1965) (noting that "sentencing judges do, and are entitled to, take into account a wide range of facts and impressions gleaned from a variety of sources"); United States v. Magliano, 336 F.2d 817, 822 (4th Cir. 1964) ("The District Court has been given a wide latitude in the receipt and use of information as an aid to the sentencing process ⋯. After conviction, everything of possible pertinency may be considered ⋯.").
389. See Watts, 519 U.S. at 151-52. Alan Michaels has argued that the courts' pattern of recognizing some rights at sentencing, but not others, can be explained as a pattern of rejecting those constitutional "protections a criminal defendant is afforded before a conviction to safeguard her liberty, but that nonetheless guarantees process directed at ensuring that the sentence is 'accurate.'" Michaels, supra note 23, at 1777.
390. Williams v. New York, 337 U.S. 241 (1949).
391. Id. at 244-45.
392. Id. at 245.
393. Id. at 244-45, 250. The Court justified the need for comprehensive information about a defendant on the ground that the information was necessary for courts to make intelligent assessments about the defendant's prospects of rehabilitation.
394. See id. at 247-48.
395. And although the Court did not mention them, other criminal philosophies provide equal support for the Court's conclusion. Retributivists, for example, often support individualized punishment in order to make fine distinctions between the blameworthiness of different offenders. See, e.g.
396. Paul H. Robinson, A Sentencing Systemfor the 21st Century!, 66 TEX.L. REV. 1, 17-19(1987).
397. Similarly, those who subscribe to incapacitation endorse the concept in order to distinguish between those offenders who pose greater risk of future recidivism and those who do not. See, e.g.
398. Note, Selective Incapacitation: Reducing Crime Through Predictions of Recidivism, 96 HARV. L. REV. 511, 512 (1982).
399. See, e.g., Watts, 519 U.S. at 151-52 (relying on Williams in holding that courts may increase sentences based on acquitted conduct)
400. see also State v. Carico, 968 S.W.2d 280, 287 (Tenn. 1998) (relying on Williams in holding that sentence could be enhanced based on uncharged conduct without violating the Sixth or Fourteenth Amendments)
401. Although courts have extended Williams's reasoning to substantive sentencing considerations, the precise holding of Williams itself has been undermined. See infra text accompanying notes 198-199.
402. See, e.g., United States v. Dorcely, 454 F.3d 366, 372 (D.C. Cir. 2006)
403. United States v. Petty, 982 F.2d 1365, 1367 (9th Cir. 1993).
404. United States v. Silverman, 976 F.2d 1502, 1508 (6th Cir. 1992).
405. United States v. Galloway, 976 F.2d 414, 419 (8th Cir. 1992).
406. United States v. Croxford, 324 F. Supp. 2d 1230, 1246 (D. Utah 2004).
407. Carico, 968 S.W.2d at 287 (Tenn. 1998).
408. People v. Fisher, 503 N.W.2d 50, 55 (Mich. 1993).
409. Gardner v. Florida, 430 U.S. 349 (1977).
410. Apprendi v. New Jersey, 530 U.S. 466,478-81 (2001).
411. See supra notes 29-42 and accompanying text. Even so, these courts have sometimes insisted that the information nevertheless ought to be provided to the sentencing judge.
412. For example, although some courts have concluded that religious beliefs should not affect a defendant's sentence, they have nonetheless said that religious information should still be provided to the sentencing judge, on the theory that a defendant's religious practice is relevant background information for sentencing.
413. See State v. Fuerst, 512 N.W.2d 243, 244-45 (Wis. Ct. App. 1994) (vacating sentence based on trial court comment that it was increasing sentence because the defendant had "very little religious conviction," but stating that "[information about a defendant's religious history, as well as his or her personal and social history is important to considerations of the defendant's character").
414. see also United States v. Mitchell, 392 F.2d 214, 217 (2d Cir. 1968) (Kaufman, J., concurring) (expressing discomfort with the "apparent equation between moral well-being and the possession of certain religious beliefs" because "[t]o infer that an individual because he is an agnostic is of doubtful virtue or morality . .. overlook[s] that under our system of government all are guaranteed freedom of and from religion," but stating that religion nevertheless is "an area often appropriately discussed in presentence reports"). But this conclusion begs the question.
415. A sentencing factor cannot be legally relevant if the Constitution forbids its consideration. To state that a defendant's religious background is "relevant" information about his character for sentencing clearly presumes that sentencing judges will make decisions, at least in part, on a defendant's religious beliefs or practices-the very practice that courts have said is forbidden.
416. See STITH & CABRANES, supra note 12, at 82. As Chief Justice Marshall famously explained, "a motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (C.C.D. Va. 1807).
417. See Cooper Indus., Inc. v. Leatherman Tool Grp" Inc., 532 U.S. 424, 433 (2001) ("Despite the broad discretion that States possess with respect to the imposition of criminal penalties and punitive damages, the Due Process Clause ⋯ imposes substantive limits on that discretion.").
418. Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (describing "[fjreedom from bodily restraint" based on "arbitrary governmental action" as "the core of⋯ the Due Process Clause").
419. see also PIERCE O'DONNELL, ET AL., TOWARDS A JUST AND EFFECTIVE SENTENCING SYSTEM 2-3 (1977) (noting that due process protections, including a statement of reasons for government action, that apply to agency action appear not to govern sentencing, as "there is no requirement that the sentence have any rational basis whatsoever"). Process, of course, offers no real protection if the government may deprive an individual of liberty for any reason it chooses.
420. Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 HOFSTRA L. REV. I, 4-5 (1988) (citing a study showing that, in district courts in the Second Circuit, sentences in factually identical cases ranged from three to twenty years in prison, depending on which judge presided over sentencing); see also United States v. Lopez, 974 F.2d 50, 52 (7th Cir. 1992) ("No judge can eliminate the T in sentencing ⋯.").
421. See Judicial Conference for the Second Circuit, Symposium, Appellate Review of Sentences, 32 F.R.D. 249,267 68 (1962) (statement of Simon E. Sobeloff, Chief Judge of the United States Court of Appeals for the Fourth Circuit).
422. See, e.g., Gall v. United States, 552 U.S. 38, 46 (2007) (adopting abuse of discretion review for federal sentencing)
423. State v. Kalish, 896 N.E.2d 124, 126 (Ohio 2008) (noting that many states review sentences for abuse of discretion).
424. State v. Roth, 471 A.2d 370, 386-87 (NJ. 1984) (using abuse of discretion standard of review)
425. State v. Barling, 779 So. 2d 1035, 1042 (La. Ct. App. 2001) (same).
426. See, e.g., United States v. Smith, 424 F.3d 992, 1016-17 (9th Cir. 2005).
427. Kapadia v. Tally, 229 F.3d 641, 647 18 (7th Cir. 2000).
428. State v. Knight, 701 N.W.2d. 83, 88 (Iowa 2005).
429. State v. Clegg, 635 N.W.2d 578, 580-81 (S.D. 2001).
430. see also Michaels, supra note 23, at 1775 (noting that courts often base their sentencing decisions on "the purposes of sentencing," and further noting that the justification is not offered when it does not support the courts' desired result).
431. Michael Tonry, Obsolescence and Immanence in Penal Theory and Policy, 105 COLUM. L. REV. 1233,1240 (2005).
432. ary Sigler, Just Deserts, Prison Rape, and the Pleasing Fiction of Guideline Sentencing, 38 ARIZ. ST. L.J. 561, 563 (2006) ("Retributivist!! ⋯ is centrally concerned with the imposition of suffering in proportion to an offender's moral desert.").
433. See Jeffrie G. Murphy, Remorse, Apology, and Mercy, 4 OHIO ST. J. CRIM. L. 423, 443 16 (2007) (identifying, though ultimately rejecting, the role that remorse could play in a retributivist system of punishment).
434. See Paul H. Robinson, Punishing Dangerousness: Cloaking Preventative Detention as Criminal Justice, 114 HARV. L. REV. 1429, 1438 (2001) ("Desert arises from a past wrong, whereas dangerousness arises from the prediction of a future wrong.").
435. Herbert Morris, Persons and Punishment, 52 MONIST 475, 480 (1968).
436. See id. at 486 ("A person has a right to institutions that respect his choices. Our punishment system does; our therapy system does not").
437. See supra notes 170-171 and accompanying text.
438. See Smith, supra note 184, at 176-80.
439. Sigler, supra note 209, at, 582-83.
440. Robinson, supra note 211, at 1439-41.
441. Rehabilitation theory justifies punishment as a method of modifying an offender's behavior and attitude, thus decreasing her likelihood of reoffending.
442. Rehabilitative punishment requires an individualized assessment of each offender in order to determine how punishment may be used to alter the offender's propensity to commit crime. See Hessick, supra note 14, at 119.
443. See JOHN STUART MILL, ON LIBERTY 45 7 (Oxford Univ. Press 1952) (1859); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (opining that "the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out").
444. To be sure, some speech-like false statements about factual events-may seem not to benefit society, but even they may do so by forcing better articulations of factually accurate positions.
445. See, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976).
446. Wolff v. McDonnell, 418 U.S. 539, 558 (1974) ("The touchstone of due process is protection of the individual against arbitrary action of the government").
447. Of course, our system of punishment is not based solely on utilitarian goals. Otherwise, governments could justifiably punish a person for a crime committed by another, since that punishment would act as a deterrent. See Bronsteen, supra note 161, at 1143.
448. McKeiver v. Pennsylvania, 403 U.S. 528, 550 (1971).
449. E.g., United States v. Ursery, 518 U.S. 267 (1996).
450. Even in situations where the legislature indicates that a sanction is not meant to be punishment, courts will treat the sanction as punishment if the regime is "so punitive either in purpose or effect" as to negate its designation as civil. See Unites States v. Ursery, 518 U.S. 267, 277 78 (1996)
451. United States v. Ward, 448 U.S. 242, 248 49 (1980).
452. Nor does it matter that courts may consider constitutionally doubtful sentencing factors for reasons other than to burden defendants' rights. The specific intent to violate a right is not a prerequisite to violating that right. The First Amendment would prohibit a police officer from suppressing a peaceful protestor complying with permit rules, even if that officer did not mean to violate the First Amendment.
453. What matters is whether the government's conduct intrudes on a protected interest. When courts sentence based on constitutionally suspect sentencing factors, they specifically seek to regulate protected conduct.
454. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 92, 95 96, 193, 200 (1977) (arguing that real rights cannot be trumped by budgetary or utilitarian calculations).
455. United States v. Booker, 543 U.S. 220 (2005).
456. Id. at 244.
457. Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
458. see also RICHARD A. POSNER. NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY 41 (2006).
459. Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1303-06 (2007). Even Justice Black-who took an absolutist stance in interpreting the First Amendment-refused to extend First Amendment protections to all speech. See Patricia R. Stembridge, Adjusting Absolutism: First Amendment Protection for the Fringe, 80 B.U. L. REV. 907, 915 (2000) (noting that Justice Black "rejected free speech protection for picketing by distinguishing pure speech, which deserved absolute protection, from speech attached to conduct, which remained unprotected").
460. See Fallon, supra note 228, at 1306 08.
461. Fallon, Implementing the Constitution, supra note 11, at 62.
462. Id. at 64.
463. Sager, supra note 11, at 1218.
464. See Fallon, Implementing the Constitution, supra note 11, at 65.
465. Avoiding institutional costs also drives interpretation. An example is the rational basis test, under which courts will sustain economic legislation so long as there is a conceivable basis for Congress to have concluded that the regulated activity involves interstate commerce.
466. The test is not prescribed by the commerce clause, but instead derives from the conclusion that it would be too costly for the judiciary to gather the information to verify that the regulation involves interstate commerce.
467. See F. Andrew Hessick, Rethinking the Presumption of Constitutionality, 85 NOTRE DAME L. REV. (forthcoming 2010) (manuscript at 27) (on file with authors).
468. Institutional concerns of this sort do not explain the reduced enforcement of the Constitution at sentencing. The only institution involved in sentencing is the judiciary. No other institution makes a constitutional determination in the sentencing process (though there are multiple layers in the judiciary itself).
469. Nor does this institutional rationale provide a basis for less enforcement of constitutional rights at sentencing than at other judicial proceedings. Whether a court is the best institution to enforce a constitutional norm does not depend on when the court seeks to enforce that norm.
470. it depends on the content of that right. Thus, to the extent that courts already enforce constitutional norms in criminal trials, they are equally qualified to enforce those norms at sentencing.
471. See supra note 187.
472. Some courts have argued that full enforcement of constitutional rights at sentencing would have administrative costs and delays associated with trial.
473. See, e.g., United States v. Bowdach, 561 F.2d 1160, 1172 (5th Cir. 1977).
474. This is certainly true with respect to procedural rights. Recognizing those rights would mean that courts could sentence only based on facts that have been proved to a jury beyond a reasonable doubt and that courts must rely on witnesses instead of pre-sentence reports-all of which would make sentencing proceedings much lengthier and more costly.
475. But this Article is not concerned with these procedural rights.
476. its focus is on substantive sentencing factors that cannot be considered in other contexts, and it is less clear that stronger enforcement of those rights would similarly prolong sentencing proceedings. To the contrary, it might serve to shorten sentencing proceedings, as certain considerations would no longer be permitted.
477. Strict scrutiny is ordinarily the test for evaluating government limitations on the content of speech, see Wooley v. Maynard, 430 U.S. 705, 715-16 (1977).
478. but in some limited situations a lower, though still rigorous, standard of review applies, see Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563 (1980) (prescribing intermediate scrutiny for commercial speech).
479. It could, however, result in a change of focus in sentencing. Insofar as future dangerousness itself is a constitutionally doubtful basis for sentence enhancements, courts might focus on individual considerations at sentencing for retributive reasons.
480. Schall v. Martin, 467 U.S. 253, 264 (1984) ("The legitimate and compelling state interest in protecting the community from crime cannot be doubted.").
481. It should be noted, however, that, while this approach is likely to lead to greater protections at sentencing, it could lead to less protection of rights generally. Unwillingness to discard traditional sentencing considerations might lead courts to water down constitutional doctrines so that they do not prevent the consideration of traditional factors.
482. This enthusiasm might be short sighted. Although judicial recognition of more rights at sentencing would initially lead to shorter sentences for many defendants, these shorter sentences might prompt legislatures to increase sentences generally, resulting in longer sentences overall.
483. On the other hand, defendants could conceivably oppose the recognition of constitutional rights at sentencing on the ground that it reduces judicial discretion at sentencing. They may argue that sentencing individualization tends to advantage most defendants, because it allows judges to sentence defendants well below the harsh statutory maximum penalties, thereby tempering the various political forces that have led to the modem trend toward higher statutory sentencing ranges. See Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703, 711-12 (2005) (detailing this legislative phenomenon).
484. But it seems unlikely that reducing the judges' ability to impose higher sentences based on constitutionally doubtful sentencing factors would lead them to impose higher sentences on those defendants who would not have received such enhancements