Ensuring Fairness And Equity


Talking of due process, the works of Love (2015) refer to the application of the law with high levels of fairness and equity to all individuals. The definition perfectly applies in the case of a citizen who is considered a suspect or rather accused of a crime. While the due process has always been principally associated with the constitution of the United Kingdom, it is important to note that the idea of due process originally emanated from the English constitutional history and common law. In fact, according to Ashworth (2015), the principle of due process was first itemized in the British Magna Carta in 1215. However, the principle and phraseology was later adopted by the UK federal constitution during the drafting of the 5th Amendment. Nonetheless, in the context of UK law, the Due Process Principle makes a declaration that the government not to deprive anyone relevant aspects of justice. The underlines aspects are life and liberty, without following the recommended legal framework. In short, individuals or rather suspects are protected from the actions as well as the undoing of the government. Likewise, the principle protects suspects from various actions and judicial proceedings undertaken by the state and local governments. For an effective judicial system, due process has always emerged as a fundamental constitutional guarantee. Generally, the suspect enjoys the right that the accuser must adhere to the defined legal and judicial framework while proving the guilt of the aggrieved party. On that note, the current paper seeks to develop an essay on the extent that a criminal justice system has to adhere to, with respect to sentencing and victim as the principles of due process. Time and again, the paper will make reference to the US constitution as the principle source of Due Process.


Principle of Sentencing

Ashworth (2015) argues that the underpinning framework for sentencing may have done away with some elements of judicial discretion over relevant aspects of the sentencing process. However, the levels of experience and expertise of the criminal defendant and the defense team when it comes to sentencing relies upon the luck of the draw. Previous scholarly works have confirmed that district court enjoys the discretion of making the decision on the procedures to adopt while determining the fact that will define the sentencing. This is limited by the appellate law as well as the understanding that the bench has with regard to the meaning and implication of the due process when it comes to sentencing.

Studies by Scott, Grisso, Levick and Steinberg (2015) have confirmed that there are a number of district judges who consider exercising the discretion through careful adversarial sentencing proceedings. The judges go as far as using standards of proof that are sufficiently demanding during such times when there is a dispute on significant facts. Similarly, there are those who depend reflexively on the prevailing hearsay assertions of the defined or rather documented sentencing report. Still, on the same, there are those who come up with ingenious ways that will see them establish facts.

The works of Love (2015) concluded that generally, courts have failed to fully adopt the required guidelines from the UK’s sentencing council. It can also be argued that they have insufficient guidance from the UK’s Court of Appeal (COA) with regard to how the process of sentencing should be different from pre-guidelines proceedings. The commentary raised by the council is quite vague to an extent that they cannot guide a sentencing court on the right procedures to follow in the respective cases. The same applies in the case of commentary raised by a number of the appellate courts, all which are too vague to guide on the choice of the right procedure.

The UK’s sentencing council puts it clear that despite the informality characterizing the sentencing prior to the establishment of the guidelines, a lot of formality cannot be avoided under the defined guidelines. The above assertion sounds valid, especially when the sentencing has to be done in a manner that is quite accurate and fair. However, the council failed to be specific on what it the greater formality might be all about. The Commission put it clear that there are cases where adversarial hearings have to be brought on board, though reliance of hearsay may not be precluded in all cases.

Freeman (2016) argues that the principle of due process in sentencing calls for defining the relevant burden of proof to be embraced in sentence proceedings. It is also important to see that the rules of hearing fully preclude adoption of hearsay during the times of sentence hearings. This brings out the constitutionality of hearsay during the sentencing process. One relevant aspect is the idea that sentencing proceedings should always be adequate and fair enough. This is based on the fact the adequacy and fairness are considered as the right of the defendant as far as of Due Process is concerned. Basically, this is one guideline that will see the defendant subjected to sentencing under the full adoption of accurate information.

According to Dripps (2015), the definition of fairness varies with the circumstance under the respective case is being handled. This has made it difficult for the Sentencing Commission to come up with standard procedural rules that will govern the entire sentencing proceedings. All this has seen the Commission limiting its mandate when it comes to defining the procedural concerns to a number of general comments. As a result, the courts are left with the mandate of defining what the due process requirements with respect to the relevant guidelines.

In most appellate courts, their framework for sentencing has failed to offer the sentencing courts the right guidance. Whenever not holding evidentiary hearings, a number of sentencing judges are never reversed in making decisions on disputed facts. According to the law of most circuits, the district courts should always have faith in the reduction of the entire requirements to a brief. The sentencing can as well be reduced to a treatise-like list of principles. They further argue that the judges can do away with the reversal provided that the respective rules are adhered to in the respective case.

Virtually, a number of appellate courts seem to have made their own decision on the required burden of proof during the sentencing proceedings. One common ground is the idea of preponderance guidance when it comes to the same. However, there are instances where the preponderance standard fails to be in line with the laid grounds of the due process. Furthermore, few appellate courts have embraced the fact there are instances where adoption of hearsay may end violating the underlying tenets of Due Process as well as the Confrontation Clause.

One question that arises from the current discussion is what needs to be done in order to have a procedural Due Process at the time of sentencing. According to Ashworth (2015), a procedural Due Process at the time of sentencing can be realized by changing the sentencing proceeding to an ‘initiative’ that is quite administrative and offender oriented. The same can be realized by transforming the sentencing proceeding into a highly rehabilitative model. It is also important that the court declare the reluctance of the sentencing proceedings for the purposes of imposing procedural requirements which might see the states not embracing information types during sentences. This may include the prospects of the defendant when planning a rehabilitation process, whose determination might not be appropriately established by the various trial-type procedures.

Trial-type procedures are among the most appropriate procedures when it comes to determining the facts that guide the sentencing process. A number of the factors look at the nature of the committed crime or offense as well as the role played by the defendant in making the crime happen. As a result, the court established that a number of the assumptions in which the accused was based failed to meet the required guidelines defined under sentencing proceedings. Most importantly, the guidelines have to be defined in such a way that they do not deny or rather limit the due process for the accused to be subjected to sentencing with respect to undisclosed information.

Principle of Victims

Other than sentencing, the works of Cassell (2015) have advocated for the relevance of extending the due process to victims too. The case of domestic violence serves as a perfect way to explain the above assertion. Together with their advocates, they understand the benefit that comes with a procedural justice system. When the judicial process is administered in a manner that is considered quite fair and respectful, the room is created for the sense of legitimacy with regard to the law. This will in turn act as the best way for encouraging individuals to respect the rule of law.

According to Manikis (2015), procedural justice is established when the entire parties in a given legal matter come alongside and state their case. With this kind of a framework, their concerns are heard, followed by a treatment in a dignified manner. This paves way for the realization of the inherent characteristics of a judicial system that is totally unbiased. The above arguments are confirmed by previous studies, which have shown that whenever the accused parties are accorded procedural justice, they tend to be highly compliant with the orders given by the court. The compliance comes into play irrespective of the outcome.

Hearings should always be scheduled in such a way that they offer a lot of protection to the victim. This is one way of seeing that the hearings are truncated in a more proper way. Failure to go as per the above recommendation has seen victims, especially those of domestic violence hurried through. Furthermore, they end up being precluded from doing their presentation on evidence. In the end, the judicial system finds itself denying the required orders to parties involved in the case.

Considering efficiency as a pretext, Twist and Williams (2015) advocate for judges to categorically do away with looking into matters that are properly mentioned in civil protection proceedings. The same should extend to the time of giving out meaning protection orders. In some instances, judges find themselves dismissing matters to do with custody outright. This comes despite the statutory provisions that create room for custody awards.

In response to the above assertions, judges are called upon a battered woman to go ahead and file separation. She may as well file for divorce and custody actions despite the fact that none of these kinds of legal requirements are in play. In most cases, courts do not buy the idea of considering matters to do with financial support despite their definition in the proceedings of civil protection. Members of the bench tend to shy away from hearing testimony with regard to the domestic violence under investigation.

Cassell (2015) argues that most of the judges desist from looking into full relief that the complainant has the right of staying safe. This best explains the reason for having the defendant under custody, especially when dealing with a domestic violence case. With the above assertion, then there is no doubt that judicial demeanor is a relevant factor in determining if the case will be heard in the right manner. Members of the bench tend to display boredom and others becoming impatient. There are those who show some signs of eagerness to shorten the time of the proceedings be embracing the little due process, which in this case is accorded to the victim.

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From the current discussion, it is clear that despite the informality characterizing the sentencing prior to the establishment of the guidelines, a lot of formality cannot be avoided under the defined guidelines. Considering the reliance of sentencing in realizing due process, judicial systems should embrace trial-type procedures since they are relevant when it comes to determining the facts that guide the sentencing process. This should entail looking at the nature of the committed crime or offenses as well as the role played by the defendant in making the crime happen. Other than sentencing, the due process should be extended to victims too. When the judicial process is administered in a manner that is considered quite fair and respectful, the room is created for the sense of legitimacy with regard to the law. This will in turn act as the best way for encouraging individuals to respect the rule of law.


  • Ashworth, A. (2015). Sentencing and criminal justice. Cambridge University Press.
  • Cassell, P. G. (2015). The Maturing Victims' Rights Movement. Ohio St. J. Crim. L., 13, 1.
  • Dripps, D. A. (2015). Guilt, innocence, and due process of plea bargaining. Wm. & Mary L. Rev., 57, 1343.
  • Freeman, K. (2016). Algorithmic Injustice: How the Wisconsin Supreme Court Failed to Protect Due Process Rights in State v. Loomis. North Carolina Journal of Law and Technology, 18, 75-180.
  • Love, M. C. (2015). Managing collateral consequences in the sentencing process: The revised sentencing articles of the model penal code. Wis. L. Rev., 247.
  • Manikis, M. (2015). Imagining the Future of Victims' Rights in Canada: A Comparative Perspective. Ohio St. J. Crim. L., 13, 163.
  • Scott, E., Grisso, T., Levick, M., & Steinberg, L. (2015). Juvenile sentencing reform in a constitutional framework. Temp. L. Rev., 88, 675.
  • Twist, S. J., & Williams, K. E. (2015). Twenty-Five Years of Victims' Rights in Arizona. Ariz. St. LJ, 47, 421.

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