Sentencing, Appeals, and Habeas Corpus

Crim B4

Chapter 15

CHAPTER OVERVIEW

The first section of this chapter explains how an appropriate sentence is determined. A number of factors must guide a judge in crafting a sentence for each convicted offender. Some of these factors include, but are not limited to, the crime in question, the defendant’s prior record, his or her ties to the community and family, the defendant’s employment history, whether he or she was convicted for several different crimes as opposed to one specific crime, the degree of the defendant’s cooperation with authorities during the investigative stage, the defendant’s mental status, his or her feelings of remorse, if any, and several other pertinent factors.

The second section describes the various types of appeals. Once a sentence has been handed down, the convicted person can appeal. An appeal can also be sought prior to sentencing. This type of appeal is known as an interlocutory appeal. Most jurisdictions favor appeals after final adjudication, but sometimes it is necessary to appeal prior to conviction. An appeal filed prior to adjudication must be unrelated to the cause of action. An appeal filed after adjudication can be one of many varieties. Typically, the defendant is granted one appeal of right. Subsequent appeals are called discretionary appeals, because the appellate court decides if it wants to hear the appeal.

The third section outlines the appeals process. An appeal rarely results in the defendant going free. This point cannot be overemphasized. An appeal usually has one of two results: (1) The appellate court agrees with the trial court, in which case it affirms the lower court’s decision; or (2) the appellate court reverses the trial court’s decision. A reversal typically results in a new trial for the defendant, or a remand. Sometimes, a trial de novo is held at the appellate level, but usually only for a misdemeanor appeal.

The fourth section the right to, and restrictions on, habeas corpus. Habeas corpus is another method for challenging one’s conviction. It is also known as a collateral attack. The Supreme Court has restricted the right to habeas review in a number of ways. First, it has limited the types of claims that can succeed. Second, the Court has held that a habeas corpus review may not be granted if the petitioner fails to submit a claim within the time frame specified by state law. Third, it is generally necessary for a convicted individual to exhaust all state remedies before a federal habeas review will be granted. Finally, restrictions have been imposed in situations in which prisoners have filed multiple habeas petitions.

SENTENCING

After a conviction at trial, the defendant is sentenced. If the crime is a felony, sentencing usually occurs at a separate posttrial hearing. Individuals charged with misdemeanors are usually tried and sentenced in the same hearing.

Several sentencing options may be available to the judge. The judge may impose a sentence and then suspend it, pending good behavior on the part of the defendant. The judge may also require the defendant to pay a fine or, in more extreme cases, to serve a term in prison. Probation or another method of supervised release is a possibility, as well. In any case, the type of sentence may depend on the judge’s own goals in choosing a sentence— that is, his or her view as to the purposes of sentencing. The following section considers the leading goals of criminal sentencing.

Types of Prison Sentences

At least four types of sentencing exist, some of which are closely related to one another.

Indeterminate sentencing gives the judge the authority to set the sentence. This form of sentencing empowers the judge to set the maximum sentence—that is, up to what the legislature will allow—or the minimum sentence for the offender to serve in prison. Under this system, a parole board usually ends up deciding the actual amount of time the offender will spend in prison.

With determinate sentencing, the judge is permitted to hand down a fixed sentence that cannot later be altered by a parole board. Determinate sentencing has the effect of treating all offenders similarly. It also has the effect of ensuring that criminals will be incarcerated for longer periods of time than may result under indeterminate sentencing.

Mandatory sentencing is a form of determinate sentencing but differs insofar as it takes discretion away from the judge. “Three strikes” laws are examples of mandatory sentencing. For example, under California’s “three strikes” law, if a person who has two “strikeable” felonies on his or her record commits a third felony of any type, he or she will go to prison for life. The Supreme Court has decided that such laws do not constitute cruel and unusual punishment (Lockyer v. Andrade, 538 U.S. 63 [2003]; Ewing v. Andrade, 538 U.S. 11 [2003]).

Sentencing guidelines provide direction to the judge in determining the appropriate sentence. They are a middle ground between indeterminate and determinate methods of sentencing. As such, they serve to promote consistency in sentencing by recommending certain terms of imprisonment for a certain type of offender. Sentencing guidelines can be voluntary or involuntary, depending on state or federal law. Sentencing guidelines that must be strictly followed are known as presumptive guidelines.

Determining the Appropriate Sentence

Determining the appropriate sentence almost always involves considering both the seriousness of the offense and the offender’s prior record. Other factors that are considered include the defendant’s possible threat to the community and his or her degree of remorse for committing the crime. Even age, family ties, employment status, and other demographic factors can come into play. Moreover, the defendant who pleads guilty may receive a different sentence than the defendant who is found guilty in a trial. A guilty plea suggests that the defendant is willing to admit what he or she did and, as such, should be treated more leniently.

In Roberts v. United States, 445 U.S. 552 (1980), the Court held that the sentencing judge was permitted to consider the defendant’s refusal to cooperate with the police in investigating his crime. Still other factors, such as the offender’s mental status, can be considered. In fact, it has been held that a mentally ill individual can be held in custody, such as in a mental institution, for a longer term than would otherwise be imposed for the crime charged (see Jones v. United States, 103 S.Ct. 3043 [1983]). This often happens following an insanity plea.

Death Penalty Sentencing.

The most serious punishment that can be imposed is capital punishment, or the death penalty. In the landmark case Furman v. Georgia, 408 U.S. 238 (1972), the Court held that the death penalty was carried out in the United States in a way that amounted to cruel and unusual punishment, in violation of the Eighth Amendment. Then, in 1976, the Court reinstated the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976), holding that death is an acceptable sentence, provided the sentencing process is reasonable.

In the states that have not abolished the death penalty, determining whether death should be imposed is now frequently in the hands of a jury. Most state statutes call for, in essence, two proceedings. In legal terms, this is called a bifurcated trial. In the first proceeding, the defendant’s guilt is determined, similar to a trial for a noncapital offense. Then, the jury sits for a second proceeding to determine whether a death sentence should be handed down. The importance of such a procedure is that it allows a jury of the defendant’s peers, not just a judge, to determine whether capital punishment is appropriate. In addition, the jury must take into account aggravating and mitigating circumstances (Roberts v. Louisiana, 428 U.S. 325 [1977]).

Other Important Sentencing Decisions.

Several other recent decisions have sought to clarify the circumstances in which death or other types of sentences can be imposed. The following are examples of these cases:

Woodson v. North Carolina, 428 U.S. 280 (1976). Decided on the same day as Gregg, the Court held that mandatory death penalty laws—that is, those that do not take aggravating and mitigating circumstances into account—are unconstitutional.

Enmund v. Florida, 458 U.S. 782 (1982). It is unconstitutional to impose death if a person participates in a felony that results in murder without considering the participant’s level of intent.

Cabana v. Bullock, 474 U.S. 376 (1986). The death penalty cannot be imposed on a mere accomplice, unless there is clear finding that the accomplice killed, attempted to kill, or intended to kill.

Ford v. Wainwright, 477 U.S. 399 (1986). The execution of someone who is insane violates the Eighth Amendment.

Tison v. Arizona, 107 S.Ct. 1714 (1987). The death penalty can be imposed in the absence of intent to kill if the defendant substantially participated in a felony likely to result in a loss of life.

Harmelin v. Michigan, 501 U.S. 957 (1991). A life sentence without the possibility of parole for a first-time, nonviolent drug offender does not constitute cruel and unusual punishment.

Kansas v. Hendricks, 521 U.S. 346 (1997). Civil commitment was upheld for convicted child molesters who have served their sentences under the state’s Sexually Violent Predators Act.

Apprendi v. New Jersey, 530 U.S. 466 (2000). Any fact, other than prior conviction, that increases the penalty for a crime beyond that allowed by statute must be submitted to a jury and proven beyond a reasonable doubt.

Atkins v. Virginia, 122 S. Ct. 2242 (2002). The execution of a mentally disabled person violates the Eighth Amendment.

Kansas v. Crane, 534 U.S. 407 (2002). Offenders under Kansas’s Sexually Violent Predators Act cannot be civilly committed without having proof that they have serious difficulty in controlling their behavior.

Blakely v. Washington, 542 U.S. 296 (2004). A fact, other than prior conviction, that increases a sentence to the maximum permitted by statute must be presented to a jury and proven beyond a reasonable doubt.

Roper v. Simmons, 543 U.S. 551 (2005). The execution of offenders who committed their capital crime while under the age of 18 violates the Eighth Amendment.

Deck v. Missouri, 544 U.S. 622 (2005). The Constitution forbids the use of visible shackles during a capital trial’s penalty phase.

United States v. Booker, 543 U.S. 220 (2005). Federal sentencing guidelines are advisory, not mandatory.

Oregon v. Guzek, 546 U.S. 517 (2006). The Constitution does not permit defendants facing the death penalty to present new evidence during the sentencing phase.

Carey v. Musladin, 549 U.S. 70 (2006). It was not unfairly prejudicial for trial spectators to wear buttons depicting the murder victim.

Rita v. United States, 551 U.S. 338 (2007). Sentences that fall within the federal sentencing guidelines are presumptively reasonable.

Cunningham v. California, 549 U.S. 270 (2007). State determinate sentencing laws violate the Sixth Amendment right to jury trial when they permit judges to impose enhanced sentences based on facts not found by a jury or admitted to by the defendant.

Kimbrough v. United States, 552 U.S. 85 (2007). The federal cocaine sentencing guidelines, like other federal sentencing guidelines, are advisory.

Baze v. Rees, 553 U.S. 35 (2008). A three-drug lethal-injection protocol does not violate the Eighth Amendment’s prohibition of cruel and unusual punishment.

Graham v. Florida, 560 U.S. ___ (2010). Juvenile offenders cannot be sentenced to life in prison for nonhomicide offenses.

United States v. Comstock, 560 U.S. ___ (2010). It is constitutionally permissible for the federal government to use civil commitment to keep a “sexually dangerous person,” under the Adam Walsh Child Protection and Safety Act, confined beyond the date of scheduled release.

Miller v. Alabama, 567 U.S. ___ (2012). Life in prison without parole for juvenile homicide offenders is cruel and unusual punishment, in violation of the Eighth Amendment.

Southern Union Co. v. United States, 567 U.S. ___ (2012). The decision Apprendi v. New Jersey (see above) applies to the imposition of fines.

Alleyne v. United States, 570 U.S. ___ (2013). Any element of a crime that increases the mandatory minimum punishment must be submitted to a jury and proven beyond a reasonable doubt.

Constitutional Rights during Sentencing

A convicted offender enjoys several important constitutional rights during the sentencing process. First, the double-jeopardy provision of the Fifth Amendment, as discussed in the last chapter, applies. Further, the defendant may only be subjected to a reasonable punishment for his or her crime. Namely, the punishment should reflect the seriousness of the offense.

In United States v. Tucker, 404 U.S. 443 (1972), the Supreme Court invalidated an individual’s 25-year sentence because the sentencing judge arrived at the sentence by considering the defendant’s past convictions, for which he was not afforded counsel.

APPEALS

An appeal is a process in which a defendant who is found guilty can challenge his or her conviction. When an appeal is filed, an appellate court, such as one of the federal circuit courts of appeal, examines a lower court’s decision in order to determine whether the proper procedure was followed, or the law was correctly applied. In other words, when a defendant appeals, he or she is claiming that the court made an error regarding the law applicable to the case. Further, the appeal provides a means by which another judge or panel of judges, who were not involved in making decisions in the initial trial, will review the case and make a decision.

Types and Effects of Appeals

At both the state and federal levels, a convicted criminal is usually granted at least one direct appeal (also known as an appeal of right). An appeal of right, or direct appeal, is automatically granted to the defendant by law. That is, an appeal of right must be heard by an appellate court. It is not up to the appellate court to decide whether to hear such an appeal. By contrast, the appellate court can decide, at its own discretion, whether to hear a discretionary appeal. Also, appeals of right are limited, but discretionary appeals can be filed several times, provided they are not redundant.

The Appellate Process

The Supreme Court has held, on a number of occasions, that when an appeal is permissible, the government must follow certain procedures. Specifically, the government must ensure that the defendant has (1) access to trial transcripts, (2) the right to counsel, and (3) the right to be free from government retaliation for a successful appeal. Before the defendant is afforded these rights, he or she must file a notice of an appeal.

Ensuring That the Defendant Has Access to Trial Transcripts.

In Griffin v. Illinois, 351 U.S. 12 (1956), the Supreme Court reviewed an Illinois appellate procedure that required the defendant to produce transcripts of the trial—even if he or she could not afford to do so. The Court struck down this requirement, holding that the government cannot impose a restriction on the right to appeal “in a way that discriminates against some convicted defendants on account of their poverty.”

Ensuring the Defendant’s Right to Counsel during Appeals.

The Sixth Amendment expressly states that this right only applies in criminal prosecutions. Even so, the Supreme Court has required that counsel be provided to indigent defendants on appeal as a matter of either equal protection or due process. Interestingly, though, the Court has also said that there is no right to self-representation at the appellate stage (see Martinez v. Court of Appeal, 528 U.S. 152 [2000]).

The first case discussing the right to counsel during the appellate stage was Douglas v. California, 372 U.S. 353 (1963). There, the Court concluded that the government must provide an indigent defendant with counsel to assist in his or her appeals of right. The Court stated that “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel . . . an unconstitutional line has been drawn between rich and poor.” The Court has also held that the Constitution requires effective counsel for a nonindigent defendant in his or her appeals of right (see Evitts v. Lucey, 469 U.S. 387 [1985]).

Government Retaliation for Successful Defense Appeals.

In several cases, the Supreme Court has dealt with retaliation by the prosecution for a successful defense appeal. The first noteworthy case in this regard was North Carolina v. Pearce, 395 U.S. 711 (1969). The defendant was reconvicted after a successful appeal and was actually punished more harshly the second time around. The Court concluded that due process required that the “defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.”

The Defendant’s Rights during the Appeals Process: A Summary.

In order to make an appeal meaningful for a criminal defendant, the Supreme Court has required that three important rights be observed during this process. First, the defendant must be given access to the trial transcripts, even if he or she cannot afford them, in order to make an appeal. Second, the defendant must be given counsel during the appellate process, regardless of whether he or she can afford representation. Finally, neither the judge nor the prosecutor can act in a retaliatory fashion when the defendant decides to appeal.

Timing of Defense Appeals

The defense can file an appeal at one of two stages: (1) prior to adjudication—that is, prior to the reading of the verdict; or (2) following adjudication. The typical appeal is filed after adjudication, but there may be reasons to file an appeal prior to adjudication, as well.

Appeals Prior to Adjudication.

Appeals are generally governed by the final judgment rule, which generally limits appeals until the court hands down its final judgment as to the defendant’s guilt. However, in very limited circumstances, a defendant may file an interlocutory appeal—an appeal filed prior to adjudication. This type of appeal is governed by a complex and confusing body of case law.

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), is perhaps the first noteworthy case in which the Supreme Court recognized certain interlocutory appeals, which it defined as:

a small class [of preadjudication decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

Appeals after Adjudication.

Compared to interlocutory appeals, appeals filed after adjudication are subject to few restrictions. Indeed, there appear to be few Supreme Court cases addressing the right to file postadjudication appeals. Nonetheless, it is important to understand that postadjudication appeals are almost limitless in terms of their possible substance. Nearly anything from the trial (as recorded in the transcripts) that the defense perceives to be in error can be appealed.