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.