Fall 2010 By: Joshua Ryan Collums


Sentencing Policies a. Deterrence1 i. Discouraging Risk Taking. If the public is made to believe that criminal behavior will be answered by painful consequences, it is hoped that some individuals will be discouraged from risking such consequences. ii. Respect for the Law. On a more abstract plane, the imposition of punishment may disseminate a generalized message that criminal transgressions are treated seriously by society. Thus, information about criminal sentences may encourage people to respect the law as a whole and increase the numbers of law-abiding citizens. iii. Irrational Offenders/Irrational States of Mind. Both special and general deterrence have an assumption that people weight rationally the consequences of their behavior. 1. Irrational offenders or offenses routinely committed in irrational states of mind are thus affected little by the possibility of criminal sanctions. iv. Severe Mandatory Sentencing Can Backfire. Can arouse public sympathy for the offender on whom it is imposed, the community not only fails to be deterred, it also loses respect for criminal justice. 1. Courts therefore rely on equity to require or permit a lesser sentence in specific cases. v. Dissemination of Sentencing? Only a small amount of the thousands of sentences are reported each day in the mass media. vi. Disconnect Between Crime and Sentencing. The long period of time that frequently stretches between crime and sentence imposition weakens the rationale. b. Retribution i. Retribution is the older of sentencing rationales and springs from the notion that the criminal owes the community a measure of suffering because of that which he inflicted. 1. It has been the most broadly supported sentencing rationale since the 1980s.


Deterrence is utilized in either of two forms: general or special. While deterrence includes individual deterrence directed at prevented the specific offender from repeating the same or other criminal acts, it is also include general deterrence which aims to discourage the general public from recourse to crime.

2. Retributivists believe that punishment is justified when it is deserved. It is deserved when the wrongdoer freely chooses to wrongdoer should be punished whether or not it will result in a utilitarian reduction in crime. ii. Central to the retributive concept is the notion that inflicting punishment on willful offenders will restore some abstract balance of right and wrong to the social order. 1. Underlying this notion: offenders themselves, not environmental influences, are morally responsible for criminal activity; and criminal codes embody current morality. iii. Collective Vengeance. So strong is this demand that even its expression in death sentences has been legitimized by our highest court upon pragmatic grounds. iv. anti-social impulses. c. Incapacitation i. There is no question that some degree of disablement occurs whenever groups of offenders are incarcerated or are subjected to the restraint and surveillance of nonprison sanctions. 1. To this extent, all sentencing systems are incapacitative, intentionally or not. ii. Most Will Get Out. The weakness of incapacitation as a rationale for incarceration is obvious: offenders are incapacitated only as long as their confinement lasts. Thus, advocates of this sentencing theory must endorse extremely long terms at enormous taxpayer expense. iii. Most Dangerous Offenders Only? The most efficient use is to restrict this rationale to justifying imprisonment for only the most dangerous offenders and recognize the need for more accurate presentence studies. d. Rehabilitation i. This rationale analogizes crime to a disease which for any number of should therefore attempt to cure or at least treat this disease. 1. Remedies range from vocational training and psycho-therapy through electrical and chemical behavior modification to incarceration, depending on which is considered most effective for the particular offender. ii. As recently as the 1960s and early 1970s, rehabilitation was the prevailing theory of sentencing and corrections, and was the principal justification for the traditional structure for indeterminate sentences and parole. 2

1. Rehabilitation, however, has lost its position of preeminence almost everywhere, but has hardly disappeared from view. 2. Many incarcerative and nonincarcerative programs continue to attempt to reform offenders while at the same time serving other goals, such as punishment, deterrence and incapacitation. iii. Rehabilitation has been offered as an approach to the key weakness of incapacitation: its failure to deal with the fact most prisoners will eventually be released into the community. Thus, society can actually be protected only by rehabilitating offenders. iv. Diluted by Other Rationales. The doctrinal strength it gathered from embracing or satisfying other sentencing rationales became an impediment when rehabilitation objectives were diluted by concerns for deterrence, in e. Restitution i. Restitution requires that offenders compensate their injured victims. ii. This consequentialist purpose aims toward the restoration of losses suffered by crime victims, when possible. Obviously, restitution cannot adequately be achieved in all criminal cases. 1. Some injuries defy compensation and most offenders lack the resources to make adequate payments. 2. When restitution can be made, however, it is hard to posit a reason not to provide for it in the criminal justice system iii. Since the 1990s, financial restitution has become an integral part of iv. Other Sentencing Rationales. Restitution rides upon a variety of sentencing rationales, although most courts ties it to deterrence and rehabilitation. v. Compared with Fines designed to punish, and forfeitures, which dispossess the offender. Indeterminate Sentencing a. Indeterminate Sentencing. Under this type of system, the legislature prescribes broad potential sentencing ranges and the trial judge sentences without meaningful legal guidance and typically without offering a detailed explanation for the sentence. i. Role of Parole Boards. An executive branch agency usually determines the actual sentence a defendant serves. ii. There are virtually no judicial opinions explaining or reviewing a sentence, and legal counsel ordinarily makes oral arguments at sentencing hearings without any written submissions to the court. b. Williams v. New York 337 U.S. 241 (1949). i. Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide 3


discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within the limits fixed by law. ii. In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. 1. In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. a. Rules of evidence have been fashioned for criminal trial which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. 2. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. a. Highly relevant if not essential to his selection of an appropriate sentence is the possession of the fullest characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable at trial. iii. Undoubtedly the New York statutes emphasize a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime. 1. The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. c. McMillan v. Pennsylvania, 477 U.S. 79 (1986). i. In re Winship against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. ii. Patterson v. New York stressed that in determining what facts must be elements of the offense is usually dispositive. 1. However, in certain limited circumstances Winship doubt requirement applies to facts not formally identified as elements of the offense charged.



iii. sentencing consideration rather than an element of a particular offense, we s requires that visible possession be proved by at least clear and convincing evidence. 1. Like the court below, we have little difficulty concluding that in this case the preponderance standard satisfies due process. Petitioners do not and could not claim that a sentencing court may never rely on a particular fact in passing sentencing without finding that fact by traditionally heard evidence and found facts without any prescribed burden of proof at all. See Williams v. New York. Determinate Sentencing a. Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence b. Overview of the Federal Sentencing Guidelines: How the Guidelines Work i. Offense Seriousness. The sentencing guidelines provide 43 levels of offense seriousness the more serious the crime, the higher the offense level. 1. Base Level. Each type of crime is assigned a base offense level, which is the starting point for determining the seriousness of a particular offense. More serious types of crimes have higher base offense levels. 2. Offense Characteristics. Each offense type typically carries with it a number of specific offense characteristics. These are factors that vary from offense to offense, but that can increase or decrease the base offense level and, ultimately, the sentence an offender receives. ii. Adjustments. Adjustments are factors that can apply to any offense. Like specific offense characteristics, they increase or decrease the offense level. 1. Categories of offense adjustments include: victim-related justice. 2. Multiple Counts of Conviction. When there are multiple counts of conviction, the guidelines provide instructions on how to achieve a s provide incremental punishment for significant additional criminal conduct. The most serious offense is used as a starting point. The other counts determine whether to and how much to increase the offense level. 5


iii. Criminal History. The guidelines assign each offender to one of six criminal how recently these crimes took place. 1. Criminal History Category I is assigned to the lease serious criminal record and includes many first-time offenders. 2. Criminal History Category VI is the most serious category and includes offenders with lengthy criminal records. iv. Determining the Guideline Range. The final offense level is determined by taking the base offense level and then adding or subtracting from it any specific offense characteristics and adjustments that apply. The point at which the final offense level and the criminal history category intersect on guideline range. v. Sentencing Options. In addition to providing a guideline range, there are a series of rules that determine the availability of non-imprisonment sentencing options for offenders. vi. Departures. After a guideline range is determined, if the court determines that there is a factor that the guidelines did not adequately consider, it may 1. When departing, the judge must state the reason for the departure. If the sentence is an upward departure, the offender may appeal the sentence; if it is a downward departure, the government may appeal. 2. Substantial Assistance Departure. One special kind of departure is the be granted if the offender has provided substantial assistance in the investigation or prosecution of another offender. a. Made by Prosecution. A motion to depart for substantial assistance must be made by the prosecution, but it is the judge who decides whether to grant it and, if so, to what extent. c. Sentencing Reform Act.2 The Act, as adopted, revises the old sentencing process in several ways: i. It rejects imprisonment as a means of promoting rehabilitation, and it states that punishment should serve retributive, educational, deterrent, and incapacitative goals. ii. It consolidates the power that had been exercised by the sentencing judge and the Parole Commission to decide what punishment an offender should suffer. This is done by creating the United States Sentencing Commission,


As set out in Mistretta v. United States (1989).


directing that Commission to devise guidelines to be used for sentencing, and prospectively abolishing the Parole Commission. iii. It makes all sentences basically determinate. A prisoner is to be released at the completion of his sentence reduced only by any credit earned by good behavior while in custody. iv. although it preserves for the judge the discretion to depart from the guidelines applicable to a particular case if the judge finds an aggravating or mitigating factor present that the Commission did not adequately consider when formulating guidelines. The Act also requires the court to state its imposing a sentencing different from that described in the guideline. v. It authorizes limited appellate review of the sentence. It permits a defendant to appeal a sentence that is above the defined range, and it permits the Government to appeal a sentence that is below that range. It also permits either side to appeal an incorrect application of the guideline. d. Mistretta v. United States, 488 U.S. 361 (1989). i. Nondelegation Doctrine. The Nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. 1. Th ii. Assistance from Other Branches. Recognition that the separation-of-powers principle and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. 1. another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government coordination. a. Intelligible Principle. So long as Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to exercises the delegated authority is directed to conform, such legislative action is not a iii. In light of our approval of broad delegations, we harbor no doubt that Congres sufficiently specific and detailed to meet constitutional requirements. iv. Location of the Commission. That judicial rulemaking, at least with respect to some subjects, falls within this twilight area3 is no longer an issue for dispute. None of our cases indicate that rulemaking per se is a function that

Youngstown separation of powers argument.


may not be performed by an entity within the Judicial Branch, either because rulemaking is inherently nonjudicial or because it is a function committed exclusively to the Executive Branch. 1. Although the judicial power of the United States is limited by have never held, and have clearly disavowed in practice, that the Constitution prohibits Congress from assigning to courts or auxiliary bodies within the Judicial Branch administrative or rulemaking duties that, in the words of Chief Justice Marshall, are judgments which the j e. In re Winship, 397 U.S. 358 (1970). i. Facts. At age twelve, Samuel Winship was arrested and charged as a juvenile delinquent for breaking into a woman's locker and stealing $112 from her pocketbook. The charge also alleged that had Winship's act been done by an adult, it would constitute larceny. Relying on Section 744(b) of the New York Family Court Act, which provided that determinations of juvenile's guilt be based on a preponderance of the evidence, a Family Court found Winship guilty, despite acknowledging that the evidence did not establish his guilt beyond a reasonable doubt. Winship's appeal of the burden of proof, was rejected in both the Appellate Division of the New York Supreme Court and in the New York Court of Appeals before the Supreme Court granted certiorari. ii. Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. iii. The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence

iv. The same considerations that demand extreme caution in fact finding to protect the innocent adult apply as well to the innocent child. v. Due Process commands that no man shall lose his liberty unless the Government has borne the burden of convincing the factfinder of his guilt. To this end, the reasonable-doubt standard is indispensable, f trier of fact the necessity of reaching a subjective state of certitude of the facts in issue. 1. Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold the Due Process Clause 8

protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. f. Apprendi v. New Jersey, 530 U.S. 466 (2000). i. Facts. Charles C. Apprendi, Jr. fired several shots into the home of an African-American family. While in custody, Apprendi made a statement, which he later retracted, that he did not want the family in his neighborhood because of their race. Apprendi was charged under New Jersey law with second-degree possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. The count did not refer to the state's hate crime statute, which provides for an enhanced sentence if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of race. After Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence. The court found, by a preponderance of the evidence, that the shooting was racially motivated and sentenced Apprendi to a 12-year term on the firearms count. In upholding the sentence, the appeals court rejected Apprendi's claim that the Due Process Clause requires that a bias finding be proved to a jury beyond a reasonable doubt. The State Supreme Court affirmed. ii. Issue. Whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt. iii. Beyond a Reasonable Doubt Standard. Beyond a Reasonable Doubt Standard. At stake in this case are constitutional protections of surpassing importance:

together, these rights indisputably entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. iv. Other than the fact of a prior conviction,4 any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.


Apprendi preserves the Almendarez-Torres of prior offenses. The Court also held in Harris v. United States, 536 U.S. 545 (2002), that a sentencing judge can find those facts necessary to trigger a minimum sentencing provision.


g. Ring v. Arizona, 536 U.S. 584 (2002).5 i. The Court in Ring unconstitutional because it allowed judges to find whether factors justifying imposition of the death penalty exist. h. Blakely v. Washington, 542 U.S. 296 (2004). i. Facts. Blakely pleaded guilty to the kidnapping of his estranged wife and the facts admitted in his plea supported a maximum sentence of 53 months. Washington state law allows a judge to impose a sentence above the standard range if he finds "substantial and compelling reasons" for doing so that were not computed into the standard range sentence. The judge in this case imposed an "exceptional" sentence of 90 months after determining Blakely had acted with "deliberate cruelty." Blakely appealed, arguing that this sentencing procedure deprived him of his federal Sixth Amendment right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. A state appellate court affirmed the sentence and the state supreme court denied review. ii. This case requires us to apply the rule we expressed in Apprendi v. New Jersey penalty for a crime beyond the prescribed statutory maximum must be iii. Statutory Maximum for Apprendi Purposes. Our precedents make clear that the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other w additional facts, but the maximum he may impose without any additional findings. iv. allow, the jury has not found all the facts which the law makes essential to the punishment and the judge exceeds his proper authority. i. United States v. Booker, 543 U.S. 220 (2005). i. Primary Holding. Concluded that the Sixth Amendment, as construed in Blakely, applies to the Federal Sentencing Guidelines. ii. 1. As the dissenting opinions in Blakely recognized, there is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in that case.


The Court in Schriro v. Summerlin, 542 U.S. 348 (2004), held that the rules from Apprendi and Ring are not to be applied retroactively.


2. If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. 3. Blakely applies to the Federal Sentencing Guidelines. iii. 1. The Court adopts an approach which makes the Guidelines system advisory while maintaining a strong connection between the conduct a connection important to the increased uniformity of sentencing that Congress intended it Guidelines system to achieve. 2. Application of these criteria indicates that we must sever and excise two specific statutory provisions: the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify departure), and the provision that sets forth standards of review on appeal, including de novo review of departures from applicable Guidelines range. 3. Standard of Review for Sentences Post-Booker. The text of the statute in effect before 2003 directed appellate courts to review sentences outside the guidelines range to determine whether the sentence was unreasonable, having imposing a sentence, as set forth in § 3553(a).6 a. Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable. iv. Post-Booker, the Sentencing Guidelines are only advisory. The Supreme Court and the lower courts continue to struggle with what it means for the Sentencing Guidelines to be advisory and not mandatory. 1. Sentences falling within the advisory guidelines are presumptively reasonable. Rita v. United States, 127 S. Ct. 2456 (2007). 2. decision to impose a sentence outside the Guidelines range. Gall v. United States, 128 S. Ct. 586 (2007). j. 18 U.S.C. 3553(a). Factors to be Considered in Imposing a Sentence. (a) Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph



standard of review. See United States v. Husein, 478 F.3d 318 (6th Cir. 2007).


(2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider-(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for-(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines-(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); (5) any pertinent policy statement-(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.1 (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 12

k. Sentencing Court Errors Post-Booker7 i. First. Sentencing judge violates the Sixth Amendment by making factual findings and mandatorily enhancing a sentence above the range applicable to facts found by a jury or admitted by a defendant. ii. Second. Sentencing judge commits procedural error by mandatorily applying the applicable Guidelines range that was based solely on facts found by a jury or admitted by a defendant. The Court in its Remedy Opinion made clear that, even though the resulting sentence would not violate the Sixth Amendment, the judge would have erred by mandatorily acting under the now-excised requirement of subsection 3553(b)(1). A sentence explicitly based upon a non-existent statutory provision, even if

selected. iii. Third. A sentencing judge commits statutory error in violation of 3553(a) applicable ranges) as well as the other factors listed in section 3553(a), and instead simply selected what the judge deemed an appropriate sentence without such required consideration. iv. Fourth. A sentencing judge also violates 3553(a) by limiting consideration of the applicable Guidelines range to the facts found by the jury or admitted by the defendant, instead of considering the applicable Guidelines range, as required by 3553(a)(4), based on the facts found by the court. Departures. The SRA gives judges express authority to depart from the guidelines into consideration by the Sentencing Commission in formulating the guidelines 3553(b). i. Statutory Departures. Section 28 U.S.C § 994(n) directs that judges



. This provision for departure is based

ii. Guidelines Departure. According to the Guidelines Manual, a sentencing factors differ significantly from the norm and were therefore not considered by the drafters of the guidelines. 1. United States v. Koon, 518 U.S. 81 (1993). The Court held that a


United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).


most cases be due substantial deference, for it embodies the traditional m. United States v. Husein 478 F.3d 318 (6th Cir. 2007). i. Procedural Reasonableness. A sentence is procedurally unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration. 1. . The district court need not discuss each and every § 3553(a) factor, but the reasons that it does provide for the sentence must sufficiently reflect consideration akin to those enumerated in the statute. ii. Substantive Reasonableness. A sentence is substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to any pertinent factor. n. United States v. Watts, 519 U.S. 148 (1997). i. 18 U.S.C. § 3661 concerning the background, character and conduct of a person convicted or an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. 1. Williams v. New York relevant if not essential appropriate sentence is the possession of the fullest information ii. Acquitted Charges? Under the pre-Guidelines sentencing regime, it was well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted. The Guidelines did not alter this aspect of 1. In Witte v. United States, 515 U.S. 389 (1995), the Court explained that sentencing enhancements do not punish a defendant for crime of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction. 2. Different Standard of Proof at Trial and Sentencing. Acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of reasonable doubt as to his guilt. It is impossible to know exactly why a jury found a defendant not guilty on a certain charge.


a. The Guidelines, on the other hand, state that it is a preponderance of the evidence, and the Court has held that application of the preponderance standard at sentencing generally satisfies due process. McMillan v. Pennsylvania (1986). o. Double Jeopardy. The Supreme Court in Witte v. United States rejected a double jeopardy claim, noting th



i. The opinion also concluded that the same practice is acceptable under the federal sentencing guidelines. p. Presentence Investigation. i. In the federal system, presentence reports are required. See Fed. R. Crim. Pro. 32(c)-(h). Confrontation Clause and Sentencing a. The evidentiary rules governing hearsay do not apply to sentencing hearing in federal or state courts. Howeve (and the equivalent provisions of a state constitution) still might require that a defendant be allowed to cross-examine witnesses at the sentencing hearing. b. Crawford v. Washington, 541 U.S. 36 (2004). i. Bars unavailable and the defendant had a prior opportunity for cross examination of the declarant. c. Pre-Crawford. Before Crawford, courts mostly concluded that the confrontation clause did not apply to the evidence presented during a sentencing hearing. i. Post-Crawford. After Crawford, the lower federal courts and state courts reopened the question of whether the use of testimonial hearsay during noncapital sentencing proceedings violates the rights. Most have concluded that it does not. d. Capital Cases. The imposition of a death sentence based on information that a defendant does not have the opportunity to deny or explain may run afoul of the confrontation clause. Right to Remain Silent a. Mitchell v. United States, 526 U.S. 314 (1999). i. The Supreme Court held that a defendant, after pleading guilty to a specific offense, can assert her Fifth Amendment privilege against selfincrimination at the sentencing hearing and not have the judge draw an adverse inference ii. functioned as a waiver of her right to remain silent at sentencing. 15

iii. Relied on Griffin v. California, 380 U.S. 609 (1995), which held that it is constitutionally impermissible for the prosecutor or judge to comment at VI. Capital Punishment (& the Eighth Amendment) a. Arbitrariness. A consensus seems to have emerged that the Constitution prohibits death imposed by sentencers with unbridled discretion; to minimize risks of arbitrary and capricious imposition, the sentencing decision must be made under a system of guided discretion. i. Furman v. Georgia, 408 U.S. 238 (1972). 1. being struck by lightning is cruel and unusual. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. b. Systematic Structure to Avoid Arbitrary Imposition i. Gregg v. Georgia, 428 U.S. 153 (1976). 1. mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of c. Categorical Exclusions. i. Proportionality is the key concept for testing whether the intrinsic nature . The inquiry is whether in disproportional for the act under scrutiny to carry a death sentence. See Law of Sentencing § 6:2 Death Sentences. ii. Coker v. Georgia, 433 U.S. 584 (1977). (Rape of an Adult Woman) 1. Furman and Gregg and companion cases settled that the death penalty is not invariable cruel and unusual punishment within the meaning of the Eighth Amendment; it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed. 2. At no time in the last 50 years have a majority of the States authorized death as punishment for rape. a. In reviving death penalty laws to satisfy Furman none of the states that had not previously authorized death for rape chose to include rape among capital felonies. 3. Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied 16

by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. a. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. iii. Other Categorical Exclusions 1. Kennedy v. Louisiana, 554 U.S. ___ (2008) (rape of a child); Atkins v. Virginia, 536 U.S. 304 (2002) (mentally retarded); Roper v. Simmons, 543 U.S. 551 (2005) (offenders under 18 years of age); Tison v. Arizona, 481 U.S. 137 (1987) (must have a mens rea of at least reckless indifference to human life). iv. Graham v. Florida 130 S. Ct. 2011 (2010). (Life Without Parole for NonHomicide Juvenile Offenders). 1. To determine whether a punishment is cruel and unusual, courts of decency that mark the progress of a maturing Estelle v. Gamble, 429 U.S. 97 (1976). 2. Proportionality Concept precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime. The concept of proportionality is central to the Eighth Amendment. Embodied in

Weems v. United States, 217 U.S. 349 (1910). a. sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty. 3. Categorical Rules. This classification in turns consists of two subsets, one considering the nature of the offense, the other considering the characteristics of the offender. a. Nature of the Offense. With respect to the nature of the offense, the Court has concluded that capital punishment is permissible for nonhomicide crimes against individuals. b. Characteristics of the Offender. In cases turning on the characteristics of the offender, the Court has adopted 17

categorical rules prohibiting the death penalty for defendants who committed their crimes before the age of 18 or whose intellectual functioning is in a low range. 4. In cases adopting categorical rules the Court has taken the following approach: a. standards, as express in legislative enactments and state against the sentencing practice at issue. b.

meaning and purpose, the Court must determine in the exercise of its own judgment whether the punishment in question violates the Constitution. 5. This case, however, involves a term-of-years sentence challenge but one that implicates an entire class of offenders who have committed a range of crimes. a. As a result, the appropriate analysis is one used in cases that involved the categorical approach. i. Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments. ii. As for the punishment, life without parole is the second most severe penalty permitted by law. It is true that a death sentence is unique in its severity and irrevocability yet life without parole sentences share some characteristics with death sentences that are shared by no other sentences. 6. The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term. d. Mandatory Death Sentences i. Woodson v. North Carolina, 428 U.S. 280 (1976). 1. North Carolina enacted a new statute that was essentially unchanged from the old, pre-Furman statute except that it made the death penalty mandatory.


2. It is now well established that the Eighth Amendment draws much

a. One of treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. 3. h penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of punishment of death and thus cannot be applied

standards. 4. The statute fails to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. a. In Furman, members of the Court acknowledged what cannot fairly be denied that death is a punishment different from all other sanctions in kind rather than degree. e. Mitigating Evidence i. Lockett v. Ohio, 438 U.S. 586 (1978). 1. We conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a ances of the offense that the defendant proffers as a basis for a sentence less than death. 2. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. a. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence. ii. Elaboration on Lockett. The Court has elaborated on the basic holding of Lockett in a series of cases on jury instructions and evidentiary rulings. See Eddings v. Oklahoma told jury to ignore nonstatutory mitigating evidence); Skipper v. South Carolina, 476 U.S. 1 (1986) (defendant can put in evidence of good behavior in prison to demonstrate nondangerousness).


iii. Access to Aggravating Evidence. Defense counsel must also have access to the aggravating evidence that the prosecutor plans to present, to prepare for cross-examination or other testing of its accuracy. See Gardner v. Florida, 430 U.S. 349 (1977) (defense counsel must have access to all information in the presentence investigation report provided to the sentencer, based on the right to confrontation). f. Victim Impact Evidence i. State v. Muhammad, 678 A.2d 164 (N.J. 1996). 1. Historically, the legal system did not view crime victims as having any rights. Because criminal attacks were viewed as attacks and threats on the entire community, and were prosecuted by the state another piece of evidence. 2. In Payne v. Tennessee, 501U.S. 808 (1991), the Supreme Court overruled the prior holdings of Booth v. Maryland (1987), in which the Court held that the Eighth Amendment prohibits a capital sentencing jury from receiving victim impact evidence relating to the personal characteristics of the murder victim and the emotional South Carolina v. Gathers (1989) in which the Supreme Court extended the rule adopted in Booth to statement made by the prosecutor about the personal qualities of the victim. a. Payne rejected two of the premises underlying Booth and Gather: i. Evidence of the personal characteristics of the victim and of the emotional impact of the crime on the blameworthiness ii. Only evidence of moral culpability is relevant to a capital sentencing decision. b. Booth unfairly weighted the scales in a capital trial because it allowed the defendant to introduce virtually all mitigating evidence concerning his own circumstance, but barred the State from offering any victim impact evidence. c. If a State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. d. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type longer considered by sentencing authorities. 20

e. Payne left undisturbed the holding in Booth that the and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. VII. The Eighth Amendment a. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted b. Two concerns of Eighth Amendment cases:8 i. Excessiveness ii. Barbaric c. In Rummell v. Estelle, 445 U.S. 263 (1980), the defendant was sentenced, under the years for his third felony: obtaining $120.75 by false pretenses. The Supreme Court, in a decision authore did not amount to cruel and unusual punishment. d. Determining When a Sentence is Proportional i. Solem v. Helm, 463 U.S. 277 (1983) 1. Facts. Helm was convicted of writing a check from a fictitious account, a crime carrying with it a five-year jail sentence. However, since this was his seventh felony conviction in South Dakota since 1964, he was sentenced to life imprisonment without parole under a state recidivist statute. 2. essive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments, but also sentences that are disproportional to the crime committed. 3. When sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized: a. First, we look to the gravity of the offense and the harshness of the penalty. i. State is justified in punishing a recidivist more severely than it punishes a first offender. ii. The court in Rummell v. Estelle relied heavily on the fact that there was a possibility of parole. b. Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction. If more serious

Gregg barbaric excessive n to the

crime committed.


crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue is excessive. c. Third, courts may find it useful to compare the sentences imposed of the same crime in other jurisdictions. 4. Concurrence a. The prevailing view up to now has been that the Eighth Amendment reaches only the mode of punishment and not the length of a sentence of imprisonment. ii. Harmelin v. Michigan, 501 U.S. 957 (1991) 1. Justice Scalia, in a historical analysis, stated that the Eighth Amendment does not require proportionality review. He continued that Eighth Amendment challenges should be limited to attacks on the mode of punishment. 2. Justice Kennedy identified four principles that should govern: a. Deference should be given to legislatures as to the appropriate sentence for specific crimes. b. The Eighth Amendment does not mandate adoption of any one penological theory. c. Marked divergences both in underlying theories of sentencing and in length of prescribed prison terms are the inevitable, often beneficial result of the federal structure. d. Proportionality review should be informed by objective factors to the maximum extent possible. e. Proportionality and Three Strikes Laws i. Ewing v. California, 538 U.S. 11 (2003) 1. Facts. On March 12, 2000, Gary Ewing, a serial offender with a long history of criminal convictions, was arrested for stealing three golf clubs, each worth $399, from a Los Angeles-area golf course. At the time of his arrest, Ewing was on parole from a 9-year prison term for convictions in three burglaries and one robbery. Under California's three strikes law, another felony conviction would require a sentence of 25 years to life. Ewing was charged with and convicted of one count of felony grand theft for the incident at the golf course. During sentencing, Ewing requested the judge in the case exercise discretion permitted under California law and reduce the conviction to a misdemeanor. The judge declined and sentenced Ewing in accordance with the three strikes law. 2. Throughout the States, legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct 22

has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety. 3. When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. 4. -guess these policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in a substantial way. f. Multiple Charges and the Eighth Amendment i. Proportionality review can only be applied to each conviction, not to the sum of the consecutive prison terms imposed.


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