Proposal for Determinate Sentencing in New York - The Effect on an Offender's Due Process Rights

• NCJ Number: 69928
• Journal: Fordham Urban Law Journal Volume: 8 Issue: 3 Dated: (1979-1980) Pages: 629-658
• Author(s): J D Winter
• Date Published: 1980
• Length: 30 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

The issue of what procedural protections are due an offender at sentencing is addressed, together with how these rights will be affected in New York under a system of determinate sentencing.

Abstract

Under the indeterminate sentencing system, the transformation of the sentencing hearing into something akin to a second trial has been rejected consistently. Courts have justified the denial of significant due process at sentencing, stating that the extension of such safeguards would interfere with the rehabilitative process and that the sentencing proceeding is essentially nonadversarial. A determinate sentencing scheme rejects the underlying rationale for the denial of due process and holds that the nonadversial, remedial approach of sentencing does not work. Proposed New York determinate sentencing grants the offender the right to a hearing, to a written record of the proceeding, to receive a written statement by the sentencing judge as to his reason for imposing sentence, to a conditional right to confront and examine adverse witnesses, to a conditional right to present witnesses on his own behalf, and to appellate review. A number of changes in sentencing practice are recommended. First, evidence obtained in violation of the fourth amendment should be excluded from a sentence hearing, thus insuring that the individual's sentence will not be enhanced by evidence inadmissible at the trial. Second, the constitutional guarantee against self-incrimination should be accorded to offenders when being examined for the presentence report (which is no longer being prepared in a nonadversarial context). Third, the rules governing the use of hearsay evidence applicable at the criminal trial should apply at the sentencing hearing. Fourth, the standard of proof required at a sentencing hearing should conform to the 'beyond a reasonable doubt' standard used at a criminal trial. Finally, the offender should be granted the right to confront and cross-examine witnesses at a sentencing hearing. Determinations at a sentencing hearing should thus be governed by rules which protect the due process rights of the offender and guarantee the integrity of the State's factfinding process. Case law is cited and 190 notes are included. (Author abstract modified)