Notwithstanding the fact that it determines whether, and for how long, offenders will be incarcerated, the sentencing process can be remarkably informal. While sentencing is considered a critical stage for purposes of the right to counsel, other Sixth Amendment rights either do not apply at all, or only minimally so. There is no federal constitutional right to a jury at sentencing except in capital cases;1 while a trial jury must find beyond a reasonable doubt the facts required to justify a sentence beyond the statutory or mandatory guidelines maximum (see §10.3.1), other sentencing facts can be found by a judge, need not be proven by more than a preponderance of the evidence, and can even consist of conduct that led to acquittal.2 Defendants are entitled to be present during sentencing, and have a right to remain silent during it.3 But they do not have a right to testify in the normal sense, only a right to “allocution” (a statement by the defendant that can be restricted to a plea for mercy).4 Nor is there a right to confront accusers or to compulsory process at sentencing; thus, in non-capital cases hearsay is admissible and “sentencing decisions may be based upon unsworn written assertions by probation officers, prosecutors, police, victims and others in presentence reports, sentencing worksheets, or other documents that are never made public and that the defendant and his counsel never see.”5
The historical explanation for this state of affairs is that, in...
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