The Sentencing Decision in Criminal Law

The Sentencing Decision

Sentencing

I.               Rule

a.    Meltzer says: most important part of criminal process

b.    Traditional, indeterminate, sentencing system (no guidelines) (See Jackson and Williams cases)

·         Judge has presentencing report from a probation officer (includes interviews with cops, family, doctors, etc). D can dispute the facts in it.

·         Judge has all of the evidence from the trial, whether or not it was admitted.

·         Fatico hearing: devise a judge might use to determine the validity of facts to be used in sentencing.

·         Limits on a judge are virtually nonexistent (Judge’s worries: victim and family, voters, appellate review, peer review, adhere to P’s plea agreement to induce pleas, prison overcrowding)

·         After sentencing, prisoner still has ‘good time credit’, and parole to mitigate sentences.

·         Note: In the whole operation of indeterminate sentencing, there are a lot of actors that influence the sentence. Hopefully, if there is any one actor that is too harsh, the others may be able to mitigate that damage (e.g. early parole after a harsh sentencing judge). But the system is also dynamic because people anticipate what others will do (e.g. if a judge is notoriously lenient, the prosecutor may overcharge the crime).

·         No requirement for judge’s explanation

c.     Problems with the sentencing system

·         Huge sentencing disparities

·         Lack of transparency

·         Pressure on judges not to be labeled soft on crime

d.    In response to these problems

                                       i.     Mandatory minimum sentences became popular

1.      Critique: generally too harsh and don’t allow for individualization

                                     ii.     Determinate sentencing became popular (cutting back on judicial discretion, rules described by legislature or administrative commission that guided sentencing typically involve elimination of parol)

1.      ~20 states now have them

e.    Federal Sentencing Table (p1057)

1.     Massive redistribution of authority to prosecutors and away from judges

2.     If D accepts responsibility (pleads guilty without too much fuss) there is a downward departure.

3.     Also, adjustment for rendering substantial assistance to government in cases with more than one D.

a.     Strong incentives for D to accept responsibility and assist government in prosecution.

II.              Cases

a.    Williams v. New York (p.1045) SCOTUS 1949

·         Facts: Appellant found guilty of first degree murder and jury recommended life in prison. TJ imposed death sentence after considering additional information of the D’s ccriminal record. D sought appeal on basis that he was not given the opportunity for cross-examination or rebuttal of this evidence.

·         Holding: Sentence upheld.

·         Rule: NY procedural policy encourages a trial judge “to consider info about the convicted person’s past life, health, habits, conduct, and mental and moral propensities. The sentencing judge may consider such info even though obtained outside the courtroom from persons whom a D has not been permitted to confront of cross-examine.”

·         Policy: This procedural flexibility is guided “by the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship.” (argument about individualization)

·         Dissent: Due Process violated here. “In a capital case...where the report would concededly not have been admissible at the trial, and was not subject to examination by the D, I am forced to conclude that the high commands of DP were not obeyed.”

·         *For capital cases, Williams has in effect been overruled. For noncapital cases, the holding of Williams – that the federal constitution does not bar reliance on confidential information at sentencing – remains undisturbed.

b.     United States v. Thompson (p.1061) Dist Ct. MA 2002

·         Facts: Thomspon pled guilty to dealing crack and was sentenced to 60 months in prison, a 17 month downward departure based on “extraordinary family circumstances.” Gov appeals sentence departure.

·         Holding: Thompson’s family situation cannot be characterized as extraordinary because “once someone is in jail for a period of time, he has presumably already been replaced.” But he does deserve the mandatory minimum because of his excellent post-sentencing rehabilitation record.

·         Rule: From other 1st Circuit cases. “family circumstances must be measured against the population of all federal defendants regardless of offense, rather than, in the statute’s language, defendants ‘with similar records who have been found guilty of similar criminal conduct.’” “D must show that the care he or she rendered was ‘irreplaceable or otherwise extraordinary’” to warrant a downward departure.

·         Policy: J follows rules from his circuit, but he doesn’t want to. He believes that the objective family circumstances rule is contrary to congress’s purpose in making the family provision for sentencing in the first place, which was to discourage courts from considering family ties in order to keep them from departing upward in the case of disadvantaged defendants.

c.     Blakely v. Washington (p.1064) SCOTUS 2004

·         Facts: Blakely charged with second degree kidnapping after a plea agreement. Washington’s Sentencing Reform Act provides for a ‘standard range’ of 49 to 53 months for commission of this offense, but judge imposed exceptional 90 month sentence instead, on the ground that “petition had acted with deliberate cruelty, a statutorily enumerated ground for departure in domestic violence cases.” Petitioner appeals, “arguing that this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.”

·         Holding: Petitioner’s sentence is invalid.

·         Rule: Apprendi v. NJ: “Other than the fact of a prior conviction, 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.”

·         “The statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the D, without any additional findings.”

·         In light of Blakely, a number of state courts—after holding their sentencing guideline systems unconstitutional—have required jury findings, beyond a reasonable doubt, for facts necessary to trigger a higher sentencing range.

·         Congress had wanted mandatory guidelines and wanted judges to be the fact-finders. Blakely says that you can’t do that. Breyer’s opinion (having been one of the Guidelines’ drafters) says “okay, we’ll make them not mandatory, but rather just advisory.” He manages to get Ginsburg to join his side by turning the guidelines into an advisory system. Under this system, a judge must make a calculation, but she can ignore them if she wants to. This is really an indeterminate system in which the judge can give anything up to the statutory (not guideline) maximum.

d.    McMillan v. Pennsylvania (p.40)

·         Any fact other than prior criminal record that increases the maximum penalty applicable to an offense is an “element” of the offense, which therefore must be proved beyond a reasonable doubt. The right to a jury trial does not apply to facts that increase the minimum term.

e.    United States v. Weston (p1049)

·         Confidential informant testifies that D’s involvement in heroin dealing is huge, judge believes confidential informant and gives defendant 20 years (no authentication)

f.      United States v. Jackson (p.112)

·         Facts: Jackson was released from prison (two bank robberies) and immediately robbed another bank. Trial court sentenced him to life without parole.

·         Holding: sentence upheld

·         Easterbrook: Section 1202 provides that anyone who possesses a firearm who has three felony convictions shall not be granted probation for whatever sentence they’re given... made the imposition of life in prison permissible. That sentence is within the statutory range.

·         Posner: Agrees with the judgment but feels the sentence is too harsh, although there is no ground for the court to set aside an excessive sentence. Thinks the sentence is too harsh because people age out of a tendency to commit crimes, and locking people up until they die is not civilized.

g.    Apprendi v. N.J.

·         Fired shots at black family who moved into white neighborhood. Charged w/ unlawful possession of firearm, pled guilty. At sentencing, there was a dispute about whether it was a hate crime. NJ law moves max penalty from 10-20yrs if it’s a hate crime. Judge sentenced D to 12yrs b/c found hate crime, although this was not an element of the crime he pled guilty to

·         Rule: violation of jury trial right to make fact finding of element of a different crime by preponderance of evidence. Any fact other than criminal record whose finding authorizes increase in maximum must be found by jury beyond a reasonable doubt

·         Note: the way to get around this is for the Legislature to say that the maximum penalty is 20 years and if it’s not a racially motivated crime, the judge can choose to depart downward.

·         ALSO, prosecutors can get around the Apprendi rule. If you’re a prosecutor, you just make sure that, in the plea bargain, you get the defendant to admit to any fact on which you want the defendant to be sentenced.

h.    Booker case

·         Federal guidelines are unconstitutional. So now either the jury will be the fact finders, OR guideleines won’t be mandatory, but merely advisory.

·          New System:

1)     Judge is required to make guideline calculation, but then judge has to write out reasoning. Once judge got it right, she can depart from the guidelines as she please.

2)     It’s an intederminate sentencing system where jduge can sentence up to the statutory max, but guidelines give judge hoops to jump through before she can sentence.

3)     In range sentences: before 78% were in range, now only 58% are (more downward departures in blue states.

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Discretion and the Criminal Justice System

Decision to Charge

What is discretion?

·         Legitimate authority—board area in which to choice to enforce laws or not

·         Limited oversight of choices by courts or those in prosecutor’s office

·         No explanation of choice required

Potential solution to problem of too much prosecutorial discretion?

·         Have prosectuor’s offices themselves come up with additional official policies and prosecutors. May require more paperwork, but gives you better data.

Linda RS v. Richard D US 1973

·         Appellant alleged discriminatory application of child neglect statute.

·         TX said it applied only to children born in wedlock.

·         Richard D has refused to pay child support, Linda is mom of illegit child.

·         Holding: Plaintiff can’t force the government to prosecute. In this case the π has no standing to bring suit. Instead, a ∆ hurt by law would have to bring suit (e.g. father of legitimate child)

·         Private citizen lacks cognizable interest in criminal prosecution or non-prosecution of another.

·         Dissent: State is under-protecting a specific class.

Attica 2^nd Cir. 1973 p1011 – Admin is usually subject to judicial review selective prosecution

·         Alleged that police & corrections intentionally killed some inmates without provocation, beat them, and withheld medical assistance.

·         These crimes aren’t being investigated.

·         Unlike Linda RS – inmates suffered direct physical injury at the hands of those they want prosecuted.

·         Inmates have been prosecuted for their roles in the riots à discriminatory enforcement.

·         Holding: Separation of powers says judiciary shouldn’t force prosecution.

·         Major problems would arise from taking away prosecutorial discretion, forcing prosecutors to open files, reveal why/how they’re using their discretion

United States v. Armstrong US 1996 (equal protect tion clause via heightened scrutiny) See also Melesky death penalty

·         D’s allege they were selected for prosecution because they’re black.

·         In all of the office’s drug cases, D’s were black.

·         D’s wanted discovery for 3 years of crack & guns cases

·         Issue: determine appropriate standard for discovery for a selective prosecution case

·         Holding:  1) Required threshold for discovery is a credible showing of different treatment of similarly situated persons. 2) Need to show intent—purposeful discrimination by officials

·         So D’s must show evidence of nonblacks who weren’t prosecuted to even get discovery. ∆ did not do this. Leaves ∆ in catch-22—need discovery to show sufficient cause to get discovery

Conclusions: 2 huge problems—1) massive prison population, 2) disproportionate impact on blacks (6x rate of whites) and inner city communities

·         Complicated factors:

o    Policing strategies (more “outdoor crimes” in inner city)

o    Drug usage rates similar, but higher levels of violent crime due to discrimination, bad opportunity structure

o    Drugs are used as proxy prosecution for suspected more violent offenses

o    Decreased deterrence from reduce stigma when crime becomes the norm

Plea Bargaining

Requirement for pleas

must be 1) voluntary 2) knowingly entered into (see Brady)

2 categories of pleas: 1) charge bargaining (lesser charge), 2) sentence concessions

·         Note: different from guilty plea which can be entered at any time

Policy

Why would one plead guilty without a plea bargain?

            -expect concession from the judge

            -want to avoid an embarrassing trial

            -want to start serving sentence immediately

If terms of a plea bargain aren’t honored by the prosecution, then the D can vacate the plea.

Pros of plea bargaining system:

·         Makes things more certain for D’s and prosecutors

·         More efficient for open and shut cases

·         Better for grey-area cases where an intermediate solution is better than 1^st degree murder or acquittal.

Cons:

·         Unequal information of D and prosecutor

·         Agency costs – prosecutor may not be representing the public, might be lazy

·         Potential penalties for D are so much greater than the prosecutor.

Grounds for a D to challenge plea bargain?:

·         Counsel was incompetent (difficult claim)

·         Failure to inform D of all things D needs to be informed of: constitutional rights, consequences of pleading, adequate factual basis.

*D has to be told of deportation consequences about pleading guilty

Brady v. United States, 397 U.S. 742 (1970), p. 1025 (S.Ct. formally accepts p-b)

1.       Summary:  Petitioner was facing the death penalty in connection with his kidnapping charge and switched his plea to guilty from not guilty; argues plea was not voluntary because he faced the death penalty if he exercised his right to a jury trial.

2.       Ruling:  Conviction affirmed. Waivers of constitutional rights must be voluntary and must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences – no problem on both counts. P was represented by competent counsel. State may not produce a plea by actual / threatened physical harm or mental coercion, but this did not happen here; also no evidence that Brady could not have rationally weighed advantages. Plea-bargaining creates a mutuality of advantage to defendants and prosecutors – for d’s, exposure is reduced, correctional process can start, and practical burdens of trial eliminated; for state, prompt punishment, and conservation of judicial / prosecutorial resources. Record supports the conclusion that Brady’s plea was intelligently made.

Notes after Brady

i.      For guilty plea to be valid, it must be the product of a knowing and intelligent choice, and must be voluntary in the sense that it does not result from any threats or promises other than those involved in the plea agreement. Trial judge typically explains to defendant the elements of the offense, the potential sentence, and the principal rights being waived (privilege against self-incrimination, right to jury trial, and right to confront accusers).

ii.      Extent – at time of Brady, 70-85% of felony convictions were obtained by guilty plea; now – about 90%, and 95% in federal courts.

Santobello v. New York – if prosecution fails to honor commitments made to defendant in exchange for guilty plea, defendant must be able to withdraw the plea. (Prosecutor can get around this by promising to recommend a particular sentence – then, as long as he recommends, if the judge doesn’t adopt, state is still fine.)

iii.      Trial penalty imposed on defendants substantial – sentences after jury trial are on average 3x longer than sentences imposed in comparable cases after a plea.

iv.      PA approach – defendants receive no inducement to plead guilty, but gain sentencing concessions by waiving right to jury and accepting a bench trial (still retain right to confront, to cross-examine, to appeal, etc.) – nearly all American jurisdictions reject this approach, however.

v.      Justification for different sentences for same crime if plea-bargained or not? Judges – “He takes some of my time; I take some of his.”

vi.      Bargaining argument – D doesn’t lose his constitutional rights; rather bargains them away – worth less than the leniency he gains by “selling” them to prosecution.

1.       D trading right to force a trial to prosecutor’s right to seek the maximum sentence.

vii.      Structural problems – public and defendant act through agents (prosecutor and attorney) in arriving at plea-bargaining. Problem because they may have individual interests that run counter to that of the public and / or the defendant.

ii.      Bordenkircher v. Hayes (S.Ct. 1978, p. 1036)

·         Summary: D indicted for uttering forged instrument for $80, punishable 2-10 years prison. Prosecutor offered recommend 5-year sentence for guilty plea, or otherwise would seek indictment under Habitual Criminal Act (mandatory life imprisonment). Pled not guilty, obtained indictment, found guilty. CoA reversed b/c prosecutor conduct violated principles protecting Ds from vindictive exercise of prosecutorial discretion. Cert to S.Ct.

·         Ruling: Reversed, life imprisonment stands. As long as D is free to accept / reject prosecutor offer, this is fine. Mutuality of advantages of plea bargaining to Ds and prosecutors. If prosecutor has probable cause, he can charge whatever legal, so long as selection not deliberately based on e.g. race, religion. Desire by prosecutor to induce guilty plea is not an unjustifiable standard. Contrary ruling would invite subterfuge by prosecutors.

·         Dissent 1: Encourages prosecutors to bring greater charge initially and only then to bargain. More difficult bargain b/c bargaining against greater charge. Preferable to hold prosecution to the charge it was originally content to bring.

·         Dissent 2: Deference would be appropriate if initial charge was mandatory life; but here, prosecutor initially deemed it unreasonable to put D in jeopardy of life imprisonment. Implementation of strategy solely to deter exercise of constitutional right to trial not constitutionally permitted exercise of discretion.

Notes after Hayes

·         Lynch (on working as assistant DA): no official rules re: plea-bargaining; prosecutors had almost complete discretion; would ignore guidelines entirely or relabel crime as something else to make it fit into sentence guideline they wanted; often would decide sentence then find crime to produce correct sentence; snap decisions; presentence investigators grossly underutilized (contra judges).

·         Common in DA offices, but not pattern in U.S. Attys. office – require written pleas and review; but still review often cursory.

·         See Lynch 1040-1043 re: white-collar criminal proceedings, quasi-judicial supervision; administrative not adversarial; prosecutors best when quasi-judicial decisionmakers on fairness rather than partisan negotiators for state.

·         Argues for greater formality of procedure to enhance fairness of p-b process; institutional checks on prosecutors (see Europe).

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