Criminal Law: The Missing Element in Sentencing Reform

The thesis of this Article is that the substantive criminal law is the missing element in sentencing reform. If comprehensive sentencing reform strategies are to have lasting effect, legislatures must reintroduce the criminal law to the sentencing process. This step will require a rekindled interest in a moral analysis of the substantive criminal law and the enactment of greatly reduced statutory sentence maximums, along with more conventional institutional changes to structure discretion and increase official accountability. Objections to American sentencing procedures range from the principled to the practical. Part II of this Article summarizes the basic objections that have influenced recent sentencing initiatives.All concern the unstructured discretion and absence of official accountability that characterize indeterminate sentencing. Part III then outlines the sentencing law reforms that have been proposed or adopted in response to these objections. Part IV asserts and at-tempts to demonstrate that sentencing in America has been divorced from the criminal law, and that present reform proposals are inadequate because they fail to address this separation. At trial, constitutional rights, the law of evidence, and the criminal burden of proof provide the defendant with important procedural safeguards. In addition, the state must meet all substantive criminal law requirements before the defendant can be convicted. Most convictions, however, result from guilty pleas. In these cases trial rights and protections are unimportant. Under an indeterminate sentencing scheme, defendants have virtually no rights at sentencing except for procedural rights such as the rights to counsel and to present and contest evidence. A court, therefore, can convict and sentence a defendant without ever applying substantive criminal law requirements. The new sentencing reforms have not ad-dressed this systemic flaw. Thus, part V of this Article argues that the logic and effect of sentencing reform proposals require that the criminal law be returned to the sentencing process. Finally, part VI sketches the contours of a comprehensive sentencing reform pack-age that would go a long way towards accomplishing this result