Beyond questions of substantive law, aggravation and mitigation at sentencing raise important issues of equitable process. Fact-finding at sentencing is often more textured and intensive than at trial, can have an enormous effect on the penalty selected and yet is carried out in an environment of relaxed procedures. The literature has given too little attention to the imperatives of process that stand alongside substantive sentencing goals.

The first aim of this chapter is to give an overview of different processes in common law legal systems for the establishment of aggravating and mitigating facts at sentencing. The inquiry encompasses all fifty-one US jurisdictions (with which the author is generally familiar), supplemented by research into the law and practice of England and Wales, Canada and Australia. Contrasting procedural values can be seen at work across these jurisdictions. In general, the Commonwealth systems are substantially more protective of defendants’ rights during the sentencing process than US systems, although there is some heterogeneity in approach in the United States.