TRIAL, SENTENCING, AND APPEAL
The object of punishment is prevention of evil (Horace Mann)

    A trial is a structured proceeding based on the adversary process, an open battle between opposing lawyers that is assumed to be the best way to discover the truth.  Trials are rare events, only occurring about 10% of the time in criminal justice, and jury trial are even rarer, only occurring about 4% of the time.  Trials take up considerable time and resources.  Attorneys frequently spend weeks and months preparing for them.  The following table lists the steps in a criminal trial: 

    A firm distinction exists between the trial stage and the sentencing stage of criminal procedure. SENTENCING, or the imposition of a penalty, occurs after a trial where someone is convicted of a crime.  Some states require that sentencing be a separate hearing, and in other states, sentencing is held right after trial.  Most places separate the two, and these are called bifurcated proceedings. At the sentencing stage, the gloves are off, and all kinds of evidence can be admitted, but this usually depends upon who the sentencing judge is.  When juries are allowed to exercise sentencing power, the judge must issue instructions to the jury about the law, its application to sentencing, and which factors should be given more consideration than others.  Sentencing is more an art than a science. It's also a joint decision-making process involving all members of the courtroom workgroup. Probation officers, prosecutors, defense attorneys, and judges all usually reach agreement on whatever sentence is to be imposed, and sometimes this is even decided fairly early on in charge bargaining when the past pattern of a judge's sentencing is considered in what to charge the defendant with. Judges say that sentencing, however, is the most difficult part of the job. Sentences are supposed to be individualized, but they often represent whatever the "going rate" is in that jurisdiction or whatever the "normal penalty" in for "normal crimes" (Sudnow 1965) in that state.  Sentencing is a part of the criminal justice process closely related to the philosophies of punishment, and since sentencing is in the hands of the judicial system, whatever philosophy that judges use may be inconsistent with whatever philosophy the correctional system uses. 

    The most important factors in sentencing are the seriousness of the offense and prior record, with a certain amount of leverage extended to uncertainty and public opinion. Uncertainty is due to the workgroup's attempt to factor in what the "real offense" was, regardless of what the charges, conviction, or finding of legal guilt was. Courts differ over what they perceive as serious AND in how they consider "prior record". Some courts choose to consider prior arrest record; others consider only a conviction record. In addition, the velocity of crime, or the estimated amount of street time between offenses, is often a consideration. The amount of bail is often the best predictor of sentence length because it indicates whatever threat to society the offender poses.

SENTENCING STRUCTURE AND VARIATION

    Basically, there are two (2) types of sentencing structures: indeterminate and determinate, although a number of other types exist which aren't easily classified, and a third (3) type might include presumptory sentencing.

    (1) Indeterminate sentencing means that the judge sets a minimum and maximum outdate, and then a state parole board starts conducting hearings for that inmate every 1-3 years starting with the minimum outdate year; e.g. Aggravated robbery = 10 - 15 years, with the opportunity for parole every two years after the tenth year.  In its most extreme form, the judge simply hands the offender over to corrections officials and lets those officials determine the length of the sentence.  This is the way sentencing was done for hundreds of years in American history, until dissatisfaction surfaced in 1971 and determinate sentencing became popular.  However, thirty-six (36) states and the District of Columbia still allow the practice of indeterminate sentencing, although legislatures have become involved, fixing the statutory limits for the minimum and maximum range that a judge can impose.

    (2) Determinate (or fixed) sentencing means that judges apply whatever the legislature has said the sentence is for the crime; e.g., Aggravated robbery = 15 years.  States with determinate sentencing (and there are 14 of them, including North Carolina) deny the judge any discretion over the length of the sentence and also often rule out any possibility of probation or alternative to prison (although this latter aspect is sometimes called Mandatory sentencing).  Determinate sentencing eliminates parole boards and credit for participation in rehabilitation programs.  Each sentence is fixed with a known outdate, and the only way this outdate can be reduced is for good behavior while in prison (day-for-day good behavior, as determined by security personnel).   

    Indeterminate sentencing was the dominant philosophy up until the 1970s, and by the 1990s, most states were using a determinate sentencing model in one form or another. Parole, in fact, was officially abolished under federal guidelines in 1984. No sentencing system operates in pure form.  A third common model is:

    (3) Presumptive sentencing is a fairly new strategy that came about around 1984, and means that the legislature, or some sentencing commission, has developed a "grid" (or sentence guidelines, using the Minnesota model) depicting a range for each offense that the judge cannot sentence either less or more than. If the judge wants to go outside of this range (upward or downward revisions), they must justify their decision in writing on an "override" form. Then, in some cases, a sentencing commission adjusts the exact outdate to even out the sentence disparity with similar cases in the system; e.g., Aggravated robbery = 10 - 15 years, with an override for aggravating factors applied, for a sentence of 17 years, revised by commission as a sentence of 16 years.  The federal courts and a handful of states (most notably Florida) used presumptive sentencing, although many states have sentencing commissions looking into it.  A picture of what a sentencing grid looks like is reproduced in almost any criminal justice textbook, and the link above (to the Minnesota model) also gives you a look at it.  Modern versions of it use computer software, such as SAGES (Sentencing Analysis Guidelines Entry System) which is operational in Florida.   

    Beyond these three types of sentencing structures, there is one thing that judges still have power over, and that's what to do when the offender is convicted of multiple charges or multiple counts (not an uncommon occurrence).  A "tough" judge will usually be one that makes all the sentences for multiple charges add up to a really long sentence, and that's called letting the charges run consecutively.  The following describes this, and it's opposite, letting the charges run concurrently:

    (A) Concurrent sentences only apply if the defendant is convicted of multiple offenses, and each sentence on each offense is served at the same time; e.g.,  Robbery = 10 years + Battery = 5 years = 10 years max, with credit for time served on the battery running concurrently with the time to be served on the robbery.

    (B) Consecutive sentences also only apply if the defendant is convicted of multiple offenses, and each sentence on each offense can not run concurrently. Therefore, all the sentences stack up: e.g., Robbery = 10 years + Battery = 5 years = 15 years minimum, with the only credits for time served to be good time afforded by the prison authorities. 

Sentencing philosophy is guided by different objectives:

• Uniformity - similar offenses should receive similar punishments; when virtually identical offenses receive wildly different sentences, this is called sentencing disparity.

• Certainty and Truth in Sentencing - the sentence imposed should be the actual sentence served

• Retribution, Deterrence, Incapacitation - rehabilitation of the offender is not the primary concern

    Mandatory minimums are presumptory sentencing models which focus in on raising the minimum part of the range allowable with crimes involving violence and narcotics. Generally, this means a harsher sentence if the offense is either gun-related or drug-related.

    Three Strikes You're Out sentencing requires a mandatory life imprisonment term (usually without the possibility of parole) for any third conviction of a felony.  States vary on how serious each crime has to be before it counts for this.

    Both mandatory minimum and three strike systems have resulting in a "trickle down" effect where prosecutors become pressured to engage in more (lenient) plea bargaining because the judge's hands are tied and, in some cases, it doesn't make sense to put somebody away for life on 3 minor felony charges.

    What is called sentence DISPARITY is the study of whether one group of offenders (such as poor people or minorities) are regularly getting tougher sentences that another group of offenders, for the same crimes.  The results of such studies have produced mixed findings.  Some studies find evidence of disparity while other studies don't.  One area where disparity was found is in the penalties for crack cocaine versus powder cocaine, since people sentenced in federal court for crack cocaine (from 1986 until 1997 when the laws were changed) usually received a much harsher sentence.  People who seem keen on finding criticism with the criminal justice system usually study sentencing disparity with an eye to whether or not mandatory minimums and three strikes laws produce disparity.   

SENTENCING RIGHTS

    The 6th Amendment right of confrontation does not apply at sentencing. Judges can consider all sorts of information from sources that did not come out at trial -- suppressed evidence, hearsay evidence, victim impact statements, presentence investigation (PSI) reports by probation officers, anyone who knows the offender's background, etc. Judges can also consider the conduct of the defendant during the trial. There is a right to counsel at sentencing, but it's essentially a stand-up role with the defendant while he's being sentenced.

    The 5th Amendment right to protection against double jeopardy does not apply at sentencing. Judges are allowed to consider a defendant's past acquitted record, if say, they've been lucky at escaping conviction in previous trials. The inferred prior conduct can then be used to impose a harsher sentence. This is called a sentencing enhancement. 

    The cruel and unusual clause of the 8th Amendment limits the sentencing authority of judges, legislatures, and sentencing commissions. According to Supreme Court interpretation, this clause does not apply to the length of a sentence, only the form of punishment (something is cruel and unusual if it inflicts unnecessary or wanton pain, is shocking to the conscience of society, or is grossly disproportionate to the offense - the proportionality principle). The only exception is the "death is different" rule, which automatically triggers consideration of the cruel and unusual clause. 

THE SENTENCE OF DEATH

    The Supreme Court has held that a sentence of death is not cruel and unusual as long as the judge or jury have considered both mitigating and aggravating factors. Looking at seriousness of the offense and prior record (which are the two main factors in most sentencing) is not enough when the death penalty is at stake. Mitigating and aggravating factors are also used in the determination of other crimes not carrying the death penalty, and students should not confuse these with the aggravating factors built into the elements of certain statutory offenses, like aggravated battery, for example. Mitigating factors are background factors that work in the defendant's favor at sentencing, while aggravating factors are "real offense" characteristics that work against the defendant. The following table summarizes these factors:

OTHER TYPES OF SENTENCES

    Probation is by far the most common sentence (for all crimes, both major and minor), with either imprisonment (more than a year) or jail (less than a year) tied for a close second. The following table expresses, for major crimes, the national average for three common sentences, imprisonment, jail, and probation:

ISSUES IN SENTENCING

    Almost all issues in sentencing can be summed up by the words discrimination and disparity. Discrimination refers to illegitimate, extralegal factors in sentencing, like bias, racism, or gender inequality. Disparity refers to inconsistencies in the sentencing process. Discrimination can not be proven by evidence of imbalances in outcomes, nor is statistical social science evidence allowed to prove discrimination (McCleskey v. Kemp 1987), even though blacks who murder whites are 11 times more likely to be sentenced to death than blacks or whites who murder blacks. 

    The Court has ruled that statistics doesn't prove anything, and there are plenty of other studies showing that there's no causal linkages between race and sentencing. The gender and sentencing studies are much more suggestive, however, but not in the direction of harsher sentences, but more lenient ones. Disparities are usually due to geographical variation, judicial backgrounds, and the attitudes of judges even in the same jurisdiction. Southern judges tend to be "hanging judges"; Republican judges tend to be tougher than Democrats. Religion and the judge's experience as a district attorney are also factors. Individual judges often get colorful nicknames like "Hang Em High Harry" or "Cut Em Loose Bruce" in the courtroom workgroup.

PUNISHMENT PHILOSOPHIES

   It is important to consider Sentencing and Punishment Philosophies -- what they are, why they're important, and where to find information on them. Throughout history, there have been four theories put forward as adequately justifying punishment: (1) rehabilitation; (2) retribution; (3) incapacitation; and (4) deterrence. These will be defined later, but for now, it's important to ask "Why would we need to justify punishment anyway?" and "Why can't we just punish for punishment's sake?"

    There are several answers, but the most important one is that punishment always needs to be justified because it is wrong. It's immoral. It's fighting evil with evil. It's two wrongs attempting to make a right. This is the puzzle that has intrigued philosophers for years. Vengeance is NOT a punishment philosophy, and it's not even a rationale.  For something to be a philosophy, it must provide a theory of human nature (ontology), a theory of learning (epistemology), and a theory for prioritizing values (axiology).  Can you imagine what kind of society we'd have if vengeance was at the top of our values?

    A second reason is rooted in society's deep-seated need to undo the crime.  If it were only possible to turn back the hands of crime or throw the switch on a time machine, and make it all happen over again differently, we would do it.  Unfortunately, we cannot, and that's why punishment needs a philosophy.  It would serve ideological purposes by giving us something to believe in, something stronger and more sublime than our basic needs.  

    The third reason is that punishment in the hands of nonexperts is dangerous.  We elect people to the highest calling of office to make the the decisions about how to hurt, harm, injure or kill our fellow citizens. That's just the nature of democratic government.  Our overall crime control policies are determined in large measure by the punishment philosophies we believe in, or at least, our legislators believe in.  Almost every instance of disarray, disorganization, and chaos in the criminal justice system is due to the collective failure of our two party system to consistently agree upon and follow a common philosophy of punishment.

    (1) Rehabilitation, or reformation, of the offender focuses on providing the opportunities for change and self-improvement, for example through education, religion, or therapy. The backbone of this philosophy was the indeterminate sentence where expert treatment personnel would decide when a person could be safely released. It dominated U.S. criminal justice policy during the 1960s and 1970s until about 1981 when an America fed up with crime turned to more get-tough policies.

    (2) Retribution is based on two ideas: (1) that the offender has treated law-abiding citizens unfairly, and owes them a debt of some kind that must be repaid; and (2) that the offender deserves to be punished because failure to do so would be a sign of disrespect for the human being or a sign of weakness in the state. Sometimes the twin notions of debt and deserving are combined in the concept of desert, as in the modern "just deserts" philosophy which holds that if the state has provided punishment, the punishment is deserved. It's the rationale for mandatory sentencing. Critics argue retribution is simply the old idea of revenge disguised behind a bunch of philosophical window-dressing.

    (3) Incapacitation is the idea of doing whatever is necessary to keep the offender from ever repeating the offense again. It's not just a "lock 'em up and throw away the key" philosophy. That just transfers the violence to prison guards, although incarceration may be the only thing we can do given Eighth Amendment prohibitions. In earlier times, we amputated thiefs, castrated rapists, or disfigured prostitutes, but some times today, "chemical castration" is not unheard of, and is a technique fully compatible with this philosophy. America has experimented with selective incapacitation since the mid-1980s, trying to target the most hard-core repeaters.

    (4) Deterrence is based on the belief that crime is rational and can be prevented if people are afraid of the penalties. Specific deterrence is aimed at preventing repeat offenders. General deterrence is aimed at preventing others from committing similar acts. The deterrence philosophy has a couple of sound bites going for it: (1) punishment should fit the crime, not the criminal; and (2) punishment should be swift, certain, and severe. You'll soon discover that most research carried out in this area is on the death penalty, and that the research results are contradictory. It may be that only certain types of crime and certain types of people can be deterred. The relatively new area of study into perceived deterrence looks at internalization of norms rather than fear.

WHERE TO FIND INFORMATION

    The Sherman Report is a well-presented compendium of what works in criminal justice, and Bruce Hoffman, a criminologist, has also posted an interesting paper on Beccaria, Deterrence and Punishment.   It's also interesting to explore the Attorney General offices, which are usually found off of state government home pages: http://www.government.thelinks.com/. You can also try using this list of Attorney General and crime data sites as a starting point. Try looking in unusual places to get information.  There's also an unusual website on the history of stocks and pillories, as well as ElectricChair.com. (At this site, you can also find out what the capital punishment is for your home state, if you don't know already. You can even learn why the electric chair is a chair and not a bed.

    Lethal injection, of course, is the most popular form of execution today, and it goes like this. A room is prepared where the subject is strapped down on a stainless steel table. Eight syringes are prepared, two filled with saline solution (to mix with the other chemicals), two with Sodium Pentathol, two with Pancuronium Bromide, and two with Potassium Chloride. All the syringes are connected to a multiple inlet device which controls the mix and release of chemicals via an electronic control box which the executioner operates in an adjacent room. Manual pull rods are also available to release the chemicals if the electronic device fails to function. All tubes lead to one hyperdermic needle that sticks intravenously into the subject's arm. Although some states have special procedures, most states follow the 8-Step Unified Execution Protocol, which consists of the following:

1. an injection of 10cc antihistamine, one half hour prior to execution.
2. an injection of 8cc 2% Sodium Pentathol five minutes prior to transmittal of subject to death chamber.
3. an injection of 15cc Sodium Pentathol 2% Solution delivered over a ten second time period.
4. a one minute wait.
5. an injection of 15cc Pancuronium Bromide over a ten second time period.
6. a one minute wait.
7. an injection of 15cc Potassium Chloride.
8. a two minute wait (subject should be dead by this time).

    Lethal injections are a peaceful way to die, a lot better than the violent and messy method of electrocution. However, in some states that allow it, the subject can choose their own method of execution, and not all of them prefer lethal injection. Some prefer a firing squad, if that's available, perhaps because they can look their executioner(s) in the eye or perhaps because of a "live by the gun, die by the gun" ideology. Maybe lethal injection is too peaceful. Is it really modern? What precedent does it set? What does it say about the role of punishment in society? These are all questions we need to ask ourselves after knowing all we can about the methods of execution.

    If you'd like to know who is scheduled to receive the death penalty, and hear a little bit about what they did to receive their sentence, a good place to get that information is Pending Executions. To take it a step further and learn what life is like awaiting execution on death row, then visit the University of Alaska Justice Center's Focus on Death Row, which contains the web's one and only collection of death row links from various state department of correction web sites.

DNA EXONERATION

    Every defendant in court and every inmate in state correctional facilities across America it seems, right now, is demanding a DNA exoneration test, at state expense, to prove their wrongful conviction. They also want to see the test results and analyze the results for themselves. Unfortunately, there's no discovery or disclosure processes at the postconviction stage, and the procedures are no more simplified at the pretrial level. The best that the government can do is set up hearings to determine if "reasonable probability" exists to order a DNA test. Ordinary citizens, in the meantime, can have their DNA tested for any significant "law enforcement purpose."

    In September 1999, the Justice Department released its Guidelines for Handling Requests for Postconviction Testing. It's an interesting document, but it offers little hope to the potentially thousands of wrongfully convicted. First of all, it's important to understand what "wrongfully convicted" means. It may include repeat offenders who may have committed many (or related) crimes, but are innocent of the specific charge for which they are serving their present offense. It may include innocent people who, faced with overwhelming evidence against them, such as wrongful identification, perjury, or forged documentation, were greatly tempted to accept the plea bargain that their lawyer so strongly recommended. It may include or exclude people who got "lost in the system," or were held without trial for long periods of time while being detained in a jail, out on bond, or simply awaiting charges (such cases are more properly termed wrongful imprisonment). It may exclude those who are factually guilty but are found not guilty by reason of the exclusionary rule, or who have escaped justice because of some loophole, police mishandling of evidence, violation of constitutional rights, or reversal upon appeal (there is a difference between being "legally innocent" and complete exoneration because one is factually innocent).

    Many states have no wrongful-conviction compensation laws.  As of late 2004, only 18 states have such laws, which financially compensate someone if they were "wrongfully convicted."  In the states that don't have such laws, the person would have to sue the state privately or lobby for some new legislation in that state.

    There's a shortage of DNA Crime Laboratories (BJS 1998) in America. As of 2004, there are only about 120 of them, and they all have at least a year's backlog of work. Meanwhile, starting in 1999, the U.S. government has concentrated its efforts on taking samples of blood for a CODIS database on 99.8 percent of all babies born. Inmates routinely have their DNA samples tested in a handful of states with DNA identification laws. Defendants and ordinary citizens can voluntarily include themselves in state DNA databanks.

    It's a nightmare at a trial with DNA evidence. Most everyone remembers the O.J. Simpson trial where DNA testimony was the longest part of it. It's often said that juries rebel against complicated scientific evidence. DNA evidence has the potential to be exculpatory, but DNA lab reports aren't exactly the easiest thing to discuss, challenge, or replicate. The reports either say "inclusion," "exclusion," or "inconclusive," and they express probabilities out to so many decimal places that it covers the potential population of three or four solar systems. They bring an unaccustomed degree of certitude to the courts.

    So what can you do if you're a defense lawyer and the report says "inclusion"? Well, before you try any last-minute strategies of claiming your client left their DNA at the scene by accident or during a previous visit (as you might with fingerprints), you'll probably want to obtain your own test, but this has the same self-incrimination effect as putting your client on the stand. In any event, further DNA testing will only cause delay and additional expense. About the only thing you can do is attack the lab for its (lack of) quality assurance and proficiency testing, use a "Chewbacca defense" (thanks to the South Park TV show for this phrase), or try to razzle-dazzle the jury about how complex and complicated the other side's evidence is. It's a defense strategy of putting the government on trial, reversing the role of who's the prosecutor, and trying the case in the media. The last thing you want to hear about if you're a lawyer or judge is DNA testing, and there are various ways to do DNA testing, as follows:

1. RFLP -- Restriction Fragment Length Polymorphism, the oldest, most accurate and time-consuming technique, involving radioactive fragmentation and examiner comparison
2. PCR -- Polymerase Chain Reaction, a copying technique for small or broken pieces of DNA, which are copied or amplified, not cloned, and a computer or operator estimates match probabilities
3. STR -- Short Tandem Repeats (sometimes called VNTR, Variable Number of Tandem Repeats), a method which uses markers for short, repeating segments of microvariant allele patterns, as short as three to seven base pairs, usually involving computer expert systems although visual detection is possible
4. Mitochondrial DNA -- a type of PCR used by the Defense Dept. to identify war remains, or by archeologists on samples subjected to extreme environmental conditions, and because mitochondrial DNA is inherited solely from the mother, it has also been used in cases of disputed maternity
5. Rapid DNA ID Microchip-Based Genetic Detectors -- these are field-ready laptop analysis units capable of being used at crime scenes, displaying profiles onsite or electronically uploading to a CODIS database. The technology uses the same microchips that detect genetic diseases, but modified to transport, concentrate, and hybridize DNA via electric currents and to discriminate individual genetic markers

    DNA testing has only freed about sixty-three people since the late 1980s. There's often resistance on the part of police and prosecutors to reopen cases. It may very well turn out to be a technology that overpowers the criminal justice system. If we use it on inmates, how do we decide which inmates? If we use it on average citizens are we invading their privacy? These are all questions that are sure to be in the public spotlight for the next few years.

    The prison population has been rapidly expanding with an annual growth average of 5 percent a year since 1990. According to BJS data, there were 1,860,520 inmates at mid-year 1999, about 60,000 more than a year earlier. The nation’s jail population at mid-year 1999 was 712,000 inmates. This amounts to about one of every 147 Americans living behind bars. Louisiana, California, Texas, Ohio, and the federal prison systems hold approximately a quarter of all inmates in the United States, and have been the leaders behind the growth trend. All states, with the exception of Maryland, Wyoming, and Washington, D.C., have been experiencing growth.

    Mandatory minimum sentences, especially for drug crimes, appear to be the leading cause of prison overcrowding. You can learn all you ever wanted to know about Mandatory Minimum Sentences (MMS) at the R.E.A.L. web site called Families Against Mandatory Minimums. Essentially, they are laws requiring judges to hand out tough sentences regardless of mitigating factors. An example would be the law requiring a five-year sentence for five grams or more of crack cocaine. The Sentencing Project web site contains information in the form of fact sheets about the controversies of crack cocaine laws if you are interested in this particular cause of overcrowding.

    Another cause is reflected in the rather simple phrase “If you build it, they will come.” It’s no secret that states are now spending about 10-15% of their annual budgets on new prison construction. Northern and Eastern states like Vermont, New Jersey, and Virginia are among the fastest builders. The South, in places like Louisiana and Texas, already has large mega-complexes like Angola and Huntsville with huge amounts of land in a ready state of expansion. States without an adequate amount of prison space, or “carrying capacity,” have to pay other states or contract with private companies to hold their overflow.

    The consequences of prison overcrowding can be both positive and negative. It’s positive if a number of predatory or disorderly offenders get off the streets as this will lead to an improvement in the quality of life for law-abiding citizens. That’s exactly what many of the public opinion polls show. Crime rates go down, but people don’t necessarily feel safer since fear of crime operates on a different (irrational) basis than actual risk of victimization. Quality of life, however, is something that citizens almost always think has improved, especially when they are informed and asked what they think about prison overcrowding. This is the positive consequence. The negative consequence is that prisons become harder and harder places to control. Overcrowding is definitely an environmental, predisposing, or preconditioning factor in prison violence and riots. At the risk of sounding psychic, we're sitting on a powder keg these days, and one could fully expect major prison riots these years. We haven’t seen anything like that since the tumultuous decade of the seventies.

APPEAL

    There is no constitutional right to appeal; federal and state statutes have created the right to appeal. Appeals are either: (1) automatic - to a state appellate court; or (2) discretionary - to a state supreme court. The principles of mootness, raise or waive, and plain error govern the appeals process. Appeals are direct attacks on conviction, while habeas corpus reviews (testing the lawfulness of imprisonment) are indirect attacks on conviction. The constitution does provide the right to habeas corpus review, but that right has seriously eroded in recent years.

Every jurisdiction in the United States has created a statutory right to appeal. The defense must initiate the appeal process in any effort to overturn a finding of guilty by a judge or jury. The role of defense attorney is more like a sword than a shield for their client. Most states have a two-tiered appellate structure. This means that there is an automatic right to appeal to the next higher court, usually an intermediate appellate court. To appeal even higher - to a state Supreme Court - requires that the case have some constitutional merit, and such an appeal is not a right, but discretionary, since any Supreme Court (be it state or federal) only hears cases on the basis of a writ of certiorari (outlining the constitutional significance of the case). Beginning in the 1980s, most Supreme Courts have limited the number of certiorari cases they will hear. Intermediate appellate courts, however, are extremely busy. The process of working a case through the intermediate courts is called appellate review.

APPELLATE REVIEW

    There are three (3) doctrines that define the scope of appellate review:

• Mootness doctrine -- This determines if the case is or is not a "moot" point; that is, whether it really matters or not. Defendants who have already served their time or paid their fines generally are considered to be "moot" cases because the sentence has already been served. The case is over with. Some states, but not all, allow appeals for the purpose of clearing someone's "good name", and there is something called the collateral consequences exception which gives favorable consideration to things like loss of professional license or loss of employment upon conviction.

• Raise or waive doctrine -- This requires the defense to have raised some objection to something at trial, or otherwise, they forever waive their right to bring it up again on appeal. Even when counsel is overruled on an objection, they usually indicate their future appeal intentions by saying "We except". This doctrine is also called the contemporaneous objection rule or timely objection requirement.

• Plain error doctrine -- This catches all the sorts of objections that could have been made, but were not, at trial. It applies when there are "plain errors affecting substantial rights" or cases of "manifest injustice" or "miscarriages of justice". Courts generally apply the doctrine sparingly, and the "harmless error rule" protects judges by not allowing a trial judge's error alone to be the basis of a reversal. Plain errors are usually procedural or evidentiary errors.

    When appellate courts review cases, they may affirm the decision of the lower court, reverse the decision of the lower court, or affirm only a portion of the lower court's decision and reverse other portions of it. Although a reversal accomplishes the same thing, they also have the power to order the whole case dismissed, as if it didn't happen. More often, if this is the case, however, the appellate court will remand the case, which means that it is returned to the trial court and may be retried. If they feel strongly about what the ultimate outcome should be in a case, they will indicate reverse and remand. If the appellate court indicates that there was insufficient evidence to convict in the first place, the state trial court cannot even retry the case because double jeopardy protection kicks in. In any retrials the state cares to do, they cannot charge the defendant with anything other than what they were charged with in the original trial, but the sentence at the retrial can be harsher following a successful appeal.

HABEAS CORPUS

    In the normal appeals process, defendants take their cases from a state trial court to a state intermediary court to a state Supreme Court and then to the U.S. Supreme Court. Habeas corpus, on the other hand, is a form of collateral attack. In a collateral attack, the convicted offender takes their case from a state trial court to a federal district court and then through the federal appellate system up to the U.S. Supreme Court. It's a way of asking the federal government to challenge, or at least look at, the legality of the state conviction by using federal law as a benchmark.

    It's important to understand that initiating a habeas corpus proceeding in federal court for a state conviction is not an ordinary criminal proceeding, and according to reforms passed in 1996, there's a 1-year statute of limitations. It challenges the lawfulness of the defendant's imprisonment, either in jail prior to conviction or in state prison following conviction, or both. It's not the same as a conditions-of-confinement lawsuit for overcrowding, second-hand smoke, or any other allegations of prison mistreatment. It's also not the same as a post-conviction petition which is filed in a state court. The doctrine of exhaustion requires that an inmate must exhaust their post-conviction remedies in state court before filing for federal habeas corpus review.

    The U.S. Constitution (Article I) specifically mentions that the "several courts of the U.S. shall have the power to grant writs of habeas corpus in all cases [in all states] where any person may be restrained of his or her liberty in violation of the Constitution, or any treaty or law of the United States." This clause has been interpreted both broadly and narrowly:

    The broader interpretation was dominant during the Warren Court days, when the philosophy of the Court was more liberal. The Rehnquist Court of the 1990s has taken a decidedly narrow interpretation, for conservative reasons.

    The problem with habeas corpus is that inmates can file an endless number of them, although there are some restrictions such as requiring a "certificate of appealability" from a judge denying any previous claims, usually for reasons of involving a constitutional issue. If they fail to gain relief the first time, they are encouraged and assisted by "jailhouse lawyers" to keep filing and filing, and sometimes they are written completely by jailhouse lawyers. There's always some new angle at federal or constitutional law that can be used to modify or change the contents of each writ; and prisons usually have excellent law libraries. Why can they file so many times over and over again? The rule of res judicata (that once a matter is decided, it cannot be reopened) does not apply to habeas corpus. 

    Here are some of the various requirements for filing habeas corpus writs:

• The convicted offender must claim that their defense counsel was incompetent. It's not enough to say that they made tactical errors or didn't have time to raise an objection at trial. In repeated habeas corpus claims, the offender must come up with some new way of describing how their counsel was incompetent or ineffective, otherwise the claim is regarded as frivolous (abuse of writ rule).

• The convicted offender must show that the failure to raise any objection, or the fact of being represented by ineffective counsel substantially prejudiced their case, either by some piece of evidence weighing too heavily on the judge or jury or by a prejudiced atmosphere covering the whole trial (cause and prejudice rule).

• The convicted offender must demonstrate that they are victims of a manifest injustice or miscarriage of justice. It's not that they are claiming their innocence. They are questioning the fact that they are legally guilty via some mention of procedural irregularities, but they are not normally allowed to refer to the reasonable doubt standard. (manifest injustice rule).

POST-SENTENCING PRINCIPLES

    This section is not anywhere near an adequate coverage of prisoner rights. Instead, it's a discussion of two theoretical principles associated with the work of Professor Sieh (1989): the Principle of Non-Superiority and the Principle of Less Eligibility. These common-law principles underlie and make sense of a number of other issues, such as the rights an ex-convict loses permanently. 

THE PRINCIPLE OF NON-SUPERIORITY

    This is the principle that no ex-inmate should live better after prison than they lived before prison. It's not measured in terms of economics, but in terms of quality of life. "Paying your dues" to society extends well beyond completion of the sentence. There's supposed to be some sort of "lasting stigma" that affects social standing. Common law roots of the principle are practical, and in many ways, endorse the policy of asset forfeiture. Inmates are not supposed to have any hidden wealth or loot that accumulates interest while they are in prison. 

    Another part of the principle is that ex-inmates should receive no further financial (or social) support from their prison upon release. There should be no prisoner support groups, no prisoner credit unions, no alumni organizations, and definitely nothing more than the $50-100 they get from the prison upon their release. They should never show up again at the prison gate, saying "Warden, can you spare an extra $100". Likewise, for any fraternization with prison staff.

THE PRINCIPLE OF LESS ELIGIBILITY

    This principle was actually first expressed by Jeremy Bentham back in 1780 in The Principles of Morals and Legislation. It's best seen as a reaction to the 14th Century "Black Death" plague that wiped out a third of the Earth's population. During those times, one of the most important crimes was vagrancy (wandering about aimlessly with no visible means of support). England passed its Poor Laws (which distinguished between the deserving and undeserving poor, but that's another story about the difference between workhouses and almshouses) and as Bentham pointed out, the key element in these legislations was the Principle of Lesser Eligibility -- no poorhouse, not even houses of corrections, should ever be attractive or comfortable enough that the pauper or criminal comes to prefer idleness to decent, honest labor (working for a living). 

    In other words, "The ordinary condition of a convict ought not to be made more eligible than that of the poorest class of subjects who work for an honest living" -- and that's exactly what Bentham said. In modern terms, no inmate should enjoy a standard of living that's better than that of the poorest, honest folk in society. Similarly with welfare, society should never make the benefits so attractive that it serves as an incentive for dishonest people to find out ways to make themselves "eligible" for the benefits. There's a lot more to this principle, and it makes for interesting discussion.

LOST RIGHTS

    At common law, it's acceptable to penalize people even after they have served their sentence to society. This is called the law of attainder, although the term also refers to any law aimed at a specific person. An attainder is the loss of all civil rights due to conviction for a felony offense, and although the Constitution (Article 1, Section 9) specifically prohibits "bills of attainder" which forfeit all rights, creating a situation of "civil death", many states take away a significant number of selective rights for ex-felons. Although legislators are constantly changing the law (the most recent gain being return of the right to vote for ex-offenders), here's a list of lost rights and some indication of how common they are:

• almost all states allow spousal divorce on grounds of imprisonment

• almost all states prohibit ex-offenders from serving on a jury

• almost all states allow criminal records to impeach testimony as a witness

• almost all states prohibit ex-offenders from owning a gun

• almost all states disqualify ex-offenders from adopting children

• about half of all states prohibit ex-offenders from holding public office

• about half of all states prohibit ex-offenders from public employment (those that don't still require a showing that the offense is not possibly job-connected)

• about half of all states take away parental privileges from ex-offenders

• about half of all insurance companies (possibly more) make it difficult or expensive for ex-offenders to get life and automobile insurance

• about half of all 1500 licensed occupations (possibly more) automatically bar ex-offenders from applying by licensing board action

INTERNET RESOURCES
Lecture on Trial Format
Lecture on Objections at Trial
Families Against Mandatory Minimums
Death Penalty Links
History of Prisoner Appeals & Litigation
Minnesota Sentencing Commission Guidelines
National Association of Criminal Defense Lawyers
The Other Side of the Wall
Reasons to Amend Three-Strike Laws
Sentencing: The Judge's Problem
Tales of Justice and Vengeance
U.S. Sentencing Commission

PRINTED RESOURCES
Garland, D. (1990). Punishment and Modern Society. Chicago: Univ. Press.
Hickey, T. (1998). Criminal Procedure. NY: McGraw-Hill.
Kittrie, N., E. Zenoff & V. Eng. (2002). Sentencing, Sanctions, and Corrections. NY: Foundation Press.
Petersilia, J. (1987). Criminal Sentencing. Santa Monica: RAND Corp.
Samaha, J. (1999). Criminal Procedure. Belmont, CA: Wadsworth.
Sieh, E. (1989). "The Principle of Less Eligibility" CJ Policy Review 13: 159-83.
Sudnow, D. (1965). "Normal Crime" Social Problems 12: 254-64.
Webb, G. (1981). Plain Language Law: Criminal Judicial Process. Atlanta: Prof. Impressions.
Wicharaya, T. (1995). Simple Theory, Hard Reality. Albany: SUNY Press.

Last Updated: 09/14/04
Syllabus for JUS 111
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