Sentencing Procedure - Module 2 of 5
Module 2: Sentencing Procedure
The Sentencing Hearing
Before imposing sentence, a judge must consider both the severity of the current conviction and the defendant’s prior criminal record. A wide variety of other information may be considered, as well. In a case that involves a victim, the judge may consider how the crime has affected the victim. Both the prosecution and defense can make sentencing recommendations to the court.
Witness Testimony at Sentencing
addition to hearing from the prosecution and defense, sentencing judges may
consider the testimony of other witnesses as well. The Federal Rules of
Criminal Procedure state that a judge may allow witness testimony at
sentencing, but not that the judge must do so. While the determination is usually in the
judge’s discretion, a witness must be
permitted to testify if the witness has credible information that is “highly
relevant” to a “critical” sentencing issue.
In the Supreme Court case, Green v. Georgia, Green and Moore were jointly charged with rape and murder and were both convicted and sentenced to death. At Green’s sentencing hearing, he requested to call a witness who would testify that Moore committed the actual murder. Green didn’t dispute the murder conviction (as he was liable for being part of the conspiracy, even if he didn’t pull the trigger), but he did argue that his sentencing hearing had been flawed because the judge did not allow the testimony that Green was not the gunman.
The Supreme Court ruled
that the witness’ testimony was highly relevant to whether Green should be
sentenced to life in prison or to death. Thus, the sentencing judge erred by
refusing to allow the testimony, violating Green’s right to due process of law. Green was therefore granted a new sentencing
of the information provided to the court during a criminal sentencing hearing comes
from a pre-sentence investigation of the defendant, commonly called a
PSI. After a PSI is conducted, a
detailed report is issued that contains a wide range of information about the
defendant. The report must be provided
to all parties prior to the sentencing hearing, including the prosecution, the
defense and the judge. These reports are very commonly relied on by
sentencing judges in felony cases, but are rarely used in misdemeanor
cases. Defendants in state court may request
to decline the PSI and proceed directly to sentencing if there are no objections,
but in federal court, the Federal Rules of Criminal Procedure prohibit
defendants from waiving the PSI.
The PSI report is generally prepared by a probation officer who is assigned to the case once the defendant is found guilty. The probation officer will often begin the investigation by conducting an interview with the defendant to gain information and insight into the defendant’s current circumstances and about the crime. During PSI interviews, defendants may be asked about what was going on in their lives at the time they committed their crimes and whether they feel remorse for their criminal behavior. They might also be asked whether they have any long-term goals or plans that would help keep them from reverting to criminal activity in the future.
In addition to
conducting the defendant interview, the probation officer must also examine
court records to verify information about the defendant’s prior criminal
history. In some cases, the probation
officer will need to go through many years of court records. The probation officer may also interview
others who know the defendant to obtain additional information such as the
defendant’s family history, education, employment history and any health or
substance abuse issues. The goal of the
PSI report is to provide the sentencing judge with a profile of the defendant
that is as complete as possible.
Victim Impact Statements
there is an identified victim of the crime, a victim impact statement may
become part of the sentencing hearing. Victim
impact statements are where victims, in their own words, discuss how their lives have been affected by the
crime. If a victim suffered injury, the
victim impact statement may describe the injury sustained as well as any
medical treatment that was needed as a result.
If the victim suffered emotionally as a result of the crime, that aspect
should be included as well. Of course,
it’s common that victims suffer trauma from criminal victimization beyond their
physical injuries that may result in the need for psychological treatment or
The goal of victim impact statements is twofold. First, they are intended to help both the defendant and sentencing judge more fully understand the effect that the crime had on the victim. Often, it is only the victim who can fully explain the extent of the injury or damage that was caused by the defendant’s actions. Second, in some cases, victims find that expressing themselves and articulating their trauma in impact statements can assist in their own emotional recovery.
Jurisdictions also vary in what limitations are imposed on the kinds of information victims may include in their impact statements. All jurisdictions allow victims to explain how the crime has affected their lives. Some jurisdictions allow victims to also say what they believe the defendant’s sentence should be. However, other jurisdictions prohibit victims from including sentencing recommendations, as sentencing determination is the province of the judge.
 Lafler v. Cooper, 566 U.S. 156, 157 (2012).
 SeeWilliams v. New York, 337 U.S. 241, 251 (1949); United States v. Watts, 519 U.S. 148, 151 (1997).
 See Mempa v. Rhay, 389 U.S. 128, 134 (1967).
 Gideon v. Wainwright, 372 U.S. 335 (1963).
 Fed. R. Crim. P. 32(i)(4)(A).
 See Kimberly A. Thomas, Beyond Mitigation: Towards a Theory of Allocution, 75 Fordham L. Rev. 2641, 2649 (2007).
 Fed. R. Crim. P. 43(c)(1)(C).
 Fed. R. Crim. P. 43(c)(1)(A).
 Fed. R. Crim. P. 43(c)(1)(B).
 Fed. R. Crim. P. 32 (i)(2).
 Green v. Georgia, 442 U.S. 95, 97 (1979).
 Gardner v. Florida, 430 U.S. 349, 362 (1977).
 U.S. Sentencing Guidelines Manual, §6A1.1 (U.S. Sentencing Comm’n 2016).
 Paul G. Cassell, In Defense of Victim Impact Statements, 6 Ohio St. J. Crim. L. 611 (2009).
 See President’s Task Force on Victims of Crime, Final Report 18 (Dec. 1982), https://www.ovc.gov/publications/presdntstskforcrprt/87299.pdf
 18 U.S.C. § 3771(a) (2004).
 Kenna v. United States District Court, 435 F.3d 1011(9th Cir. 2006).
 See Ky. Rev. Stat. Ann. § 421.520 (2018); see also N.C. Const. art.1, §37.
 See Marsy’s Law for All
 Tex. Code Crim. Proc. Ann. § 42.03 (2017).
 Bosse v. Oklahoma, 580 U.S. ___, 137 S.Ct. 1 (2016).