Sentencing Discretion and the Constitution: Due Process of Time

Author: Donald A. Dripps
Publisher: Oxford University Press
ISBN: 9780197830369

Published In: April 2026
Format: Hardback
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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The U.S. Supreme Court maintains that prosecutorial discretion to charge different offenses authorized by the penal code is practically limited only by the penal code itself. Because typical offense conduct violates multiple statutes carrying different maximum – and minimum – sentences, by choosing the charge, the prosecution commonly also chooses the sentence. The Court, however, holds that when judges exercise sentencing discretion, due process requires impeccable neutrality and adversary hearings.

Sentencing Discretion and the Constitution: Due Process of Time addresses the fundamental incompatibility of the U.S. Supreme Court's approach to the sentencing power of judges as compared to prosecutors. The Court says that when prosecutors induce a guilty plea by filing lesser charges than the code allows, the defendant is getting a break rather than being strong-armed. This doctrinal fiction persists because neither dissenting justices nor academic critics have yet justified a baseline by which the infliction of years – or even decades – in prison for refusing to plead guilty or to provide information, should be treated as a coercive threat rather than an offer permitted in the "give and take" of plea bargaining. In theory, the charges filed should be proportional to culpability, not the most severe the code permits. This raises another hard problem: theorists have not to date advanced a persuasive account of proportionate punishment.

Unlike prior works, Sentencing Discretion and the Constitution exposes the connections between these problems and proposes a unified solution. The right against excessive punishment, like the right against erroneous conviction, is best understood as a right to procedural justice. More broadly, curtailing prosecutorial sentencing is an essential step toward curtailing mass incarceration – a problem that otherwise is more likely to get worse than better.

This book will be of interest to readers concerned with plea bargaining, sentencing, constitutional law, legal history, and criminal law theory.

Part I. The Doctrinal Problem

Chapter 1:The Problem of Prosecutorial Sentencing

Chapter 2:The Anomaly of Prosecutorial Sentencing Discretion

Chapter 3:The Supreme Court and Judicial Sentencing Discretion

Chapter 4:The Supreme Court and Prosecutorial Sentencing Discretion

Chapter 5:The History of Sentencing Discretion

Part II. The Theoretical Problems

Chapter 6:The Baseline Problem in Criminal Procedure

Chapter 7:The Proportionality Problem in Criminal Law

Part III. Proportionate Punishment as Procedural Justice

Chapter 8:Disproportionate Punishment and Convicting the Innocent

Chapter 9:Proportionate Punishment as Procedural Justice