SENTENCING AND APPEAL
"I've seen wicked men and fools, and I believe they both get their's in the end, but the fools first." (Robert Louis Stevenson)

    A firm distinction exists between the trial stage and the sentencing stage of criminal procedure. Some states require that there be separate trials, and these are called bifurcated proceedings. At the sentencing stage, defendants enjoy fewer rights -- the right to appeal, for example. 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.

    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.

    The most important factors in sentencing is 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 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 SYSTEMS

    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. 

    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.

    Indeterminate sentencing was the dominant philosophy up until the 1970s, and by the 1990s, almost every state was 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. Another common model is:

    Presumptive sentencing means that the legislature, or some sentencing commission, has developed a "grid" (or sentence guidelines, usually 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.

    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. It usually doesn't matter how serious the felonies are.

    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.

    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.

    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 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.

APPEALS

    Offenders don't have a constitutional right to appeal, but 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

    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: 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 a convict or ex-convict lose 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. 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
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
U.S. Sentencing Commission

PRINTED RESOURCES
Garland, D. (1990). Punishment and Modern Society. Chicago: Univ. Press.
Hickey, T. (1998). Criminal Procedure. NY: McGraw-Hill.
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: 04/02/04
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