Sentencing discretion and the constitution : due process of time / Donald A. Dripps.

Format:

Book

Author/Creator:

Dripps, Donald A., 1957- author.

Series:

Oxford monographs on criminal law and justice.

Oxford scholarship online.

Oxford monographs on criminal law and justice

Oxford scholarship online

Language:

English

Subjects (All):

Sentences (Criminal procedure).

Judicial discretion.

Judicial error.

Punishment.

Due process of law.

Constitutional law.

Sentences (Criminal procedure)--United States.

Physical Description:

1 online resource

Edition:

1st ed.

Place of Publication:

New York, NY : Oxford University Press, [2026]

Summary:

This text 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.

Contents:

Cover

Half Title

Title Page

Copyright Page

Dedication

Contents

Acknowledgments

Table of Cases

Part I The Doctrinal Problem

1 The Problem of Prosecutorial Sentencing

A. Two Thought Experiments: Prosecutorial Sentencing versus Theft in 229 Degrees

B. A Story from the Real World

C. Three Hard Problems

D. Overview of the Argument

2 The Anomaly of Prosecutorial Sentencing Discretion

A. Bentham versus Beccaria: Is Delegation of Sentencing Discretion Inevitable?

B. How Prosecutorial Sentencing Discretion Emerged in the "Steroid Era" of Criminal Justice

C. Case Examples

D. The Institutional Architecture of Prosecutorial Sentencing Discretion

(1) How the Legislature Gets Cut Out: Delegation

(2) How Grand Juries Get Cut Out: Institutional Competence

(3) How Juries and Judges Get Cut Out: Guilty Pleas, Guidelines, and Mandatory Minimums

E. The Disconnect from Due Process

(1) Due Process 101

(2) Pretrial Investigations: Searches and Arrests

(3) Due Process at Trial

3 The Supreme Court and Judicial Sentencing Discretion

A. Introduction

B. The Origins of Sentencing Law

C. The Probation Act Cases: Dueling Baselines

D. The First Sentencing Trilogy: Townsend, Gryger, and Williams

E. The Second Sentencing Trilogy: Chewning, Oyler, and Crabtree

F. Sentencing and the Criminal Procedure Revolution

G. The Return to Due Process Analysis and the Triumph of the Procedural Baseline

H. Summary of the Sentencing Cases

4 The Supreme Court and Prosecutorial Sentencing Discretion

B. The Vindictiveness Doctrine

C. The No-Jury, No-Death Trilogy

D. Trial Penalties

E. Lesser Included Offenses and the Selective Prosecution Doctrine

F. The Nonprosecution Cases

G. Cases Recognizing the Right to Trial about Facts Triggering Higher Sentences.

H. The Eighth Amendment Cases

I. Substantive Due Process

J. Summary of the Prosecutorial Discretion Cases

K. Summary of the Doctrinal Problem

5 The History of Sentencing Discretion

B. Sentencing Discretion and the First Congress

(1) Beccaria's On Crimes and Punishments

(2) The 1790 Crimes Act

(3) The Original Understanding of Prosecutorial Discretion

(4) Nullification and Clemency in the Early Republic

(5) The Limited Role of District Attorneys

(6) Summary of Founding-Era Federal Practice

C. Federal Sentencing from the Founding to the Civil War

(1) Ad Hoc Sentencing Statutes from 1790 to 1825

(2) The Non-Importation Laws

(3) The 1825 Post Office Act

(4) The 1825 Crimes Act

(5) The 1831 Code for the District of Columbia

(6) Summary of Sentencing Discretion in the Federal System from the Founding to the Civil War

D. Sentencing Discretion in the States before the Civil War

(1) First-Generation Statutes: Curtailing the Death Penalty

(2) The Early History of Prosecutorial Discretion in the States

(3) Executive Clemency in the States

E. Sentencing Discretion in the States after the Civil War

(1) The Changing Relationship between the Grand Jury and the Prosecutor

(2) Second-Generation Statutes and Suspended Sentences

(3) The Rise of Indeterminate Sentencing

F. Suspended Sentences in Federal Court in the Nineteenth and Twentieth Centuries

G. Mandatory Minimum Sentences under the Boggs Act

H. The Eclipse of Executive Clemency

I. Modern "Mandatory" Minimums

J. Conclusion

Part II The Theoretical Problems

6 The Baseline Problem in Criminal Procedure

A. The Code-Maximum Baseline

B. The Statistical Baseline

C. The Mysterious Baseline Requiring Fair Sentencing Hearings

D. A Substantive Proportionality Baseline?.

7 The Proportionality Problem in Criminal Law

A. Proportionality's Functions

B. The Revival of Retributivism in the Twentieth Century

C. The Problem of Retributive Proportionality

D. The Obdurate Intuition that the Punishment Should Fit the Crime

Part III Proportionate Punishment as Procedural Justice

8 Disproportionate Punishment and Convicting the Innocent

A. Procedural Justice and Convicting the Innocent

(1) The Doctrine of Double Effect

(2) Rights against Risks

(3) Imperfectly Constrained Consequentialism

B. The Moral Equivalence of Erroneous Judgments and Erroneous Punishments

C. Skepticism about Error Bias

9 Proportionate Punishment as Procedural Justice

A. The Contingent Quality of Procedural Justice

B. Procedural Justice-Rawls's Taxonomy

C. Constructive Procedural Justice

D. Constructive Procedural Justice versus Arbitrary Discretion

E. The Indispensable Requirement of a Neutral Tribunal

10 Implications

A. Vindicating the Procedural Baseline

B. The Proposed Doctrine

11 Engaging Objections

A. Anticipated Objections

B. Ministers of Justice?

C. Institutional Competence-Prosecutors and Judges

(1) Why Prosecutors Should Not Make Sentencing Decisions

(2) Why Judges Should Not Make Charging Decisions

(3) Prosecutors, Judges, and the Void-for-Vagueness Doctrine

D. Pragmatics

(1) The Specter of Judicial Lenience

(2) Inducing Pleas and Cooperation

(3) Taking Contempt Seriously

E. Procedural Justice and Mass Incarceration

F. Institutional Competence-Courts and Legislatures

G. Conclusion

Index.

Notes:

Includes bibliographical references and index.

Description based on online resource and publisher information; title from PDF title page (viewed on November 3, 2025).

Description based on publisher supplied metadata and other sources.

ISBN:

0-19-783037-4

0-19-783038-2

0-19-783039-0

9780197830376

OCLC:

1548241485