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Sentencing Procedure - Module 2 of 5

Module 2:  Sentencing Procedure


             The sentencing hearing is one of the “critical stages” of a criminal prosecution, according to the Supreme Court.[1]  Judges must decide what sentence to impose on each criminal defendant that comes before them to ensure that justice is served.  This module will discuss the different types of information upon which sentencing decisions are based and the steps that take place during the sentencing hearing. 

 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.  

             The prosecution begins a sentencing hearing by arguing in favor of its recommended sentence.  The prosecution represents the government and recommends a sentence designed to punish the defendant and protect the public.  The sentencing judge may consider any information the prosecution offers that provides insight into why the defendant committed the crime or that assesses the defendant’s future risk to society.  This may include the defendant’s history and the number and severity of any prior criminal convictions.  The judge may also consider whether the defendant faces other obstacles in life that contribute to lawbreaking behavior, such as financial or psychological challenges.  Courts have ruled that the types of information sentencing judges can consider is very broad and may even include evidence that was not admissible during the criminal trial itself.[2]  

             Following the prosecutor’s sentencing recommendation, the defense may offer an alternative recommendation. Just as the sentencing judge considers the prosecutor’s recommendations, the judge must also consider information presented by the defense, so long as it is factual and relevant.  A defense attorney can argue for an alternative sentence to that recommended by the prosecution.  For example, the defendant’s attorney might argue that the community is protected by sentencing the defendant to house arrest with GPS monitoring, and so that incarceration could be avoided. 

 Defendants may choose to represent themselves during sentencing or may request legal counsel.  The Supreme Court has ruled that defendants have a constitutional right to have attorneys represent them during sentencing unless they waive that right.[3]  Having an attorney during sentencing can help ensure that the statements made by the prosecution are both fact-checked and relevant.  An attorney can also help by compiling and providing to the court positive information about the defendant to mitigate any damaging information about the defendant the prosecution has offered. Because it’s considered a critical stage in the proceeding, if the defendant cannot afford an attorney, the state must provide the defendant with one.[4

Defendant’s Statement

                 Judges also consider the statements of defendants themselves before imposing sentence.  Defendants must be given the opportunity to speak on their own behalves during the sentencing process.  The Federal Rules of Criminal Procedure require that federal judges personally address each defendant to determine whether the defendant wishes to speak before the sentence is pronounced.[5] In state cases, a defendant’s right to speak at sentencing is often similarly provided for by state statutes or inferred from state constitutional provisions.[6]  Defendants are not, however, required to speak at their sentencing hearings.  In some cases, an attorney might strategically determine that remaining silent is in a defendant’s best interest. 

 Whether a defendant chooses to speak or not, he has a legal right to be present at sentencing.  If, however, a defendant’s behavior during sentencing becomes extraordinarily disruptive and the court finds the defendant is intentionally obstructing the hearing, the defendant may be removed from court.  The Federal Rules of Criminal Procedure require that the judge first give the defendant a warning that continued disruptive behavior may result in removal and only if the disruptive behavior persists may the judge lawfully order that he be removed.[7]

 Defendants may choose to voluntarily waive their legal rights to be present at sentencing.[8]  A defendant’s deliberate absence from the proceeding will not necessarily delay sentencing if it can be shown that the absence is voluntary. However, at least under the federal rules, defendants may not waive presence in death penalty cases.[9] 

Witness Testimony at Sentencing

            In 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.[10]  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.[11] 

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 hearing. 

Pre-Sentence Investigations

            Much 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.[12]  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.[13]

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.

            Because PSI reports are intended to be so thorough, they are generally several pages in length, and can take weeks to complete.  However, the sentencing judge does have the authority to request additional information beyond what is typically contained in a standard PSI.  A judge who noticed unusual behavior by a defendant during trial might, for example, request that a mental health evaluation be included as part of that defendant’s PSI report.   Or, for a defendant convicted of drug crimes, the judge may ask the probation officer preparing the report to drug test the defendant prior to sentencing and to include the result in the PSI report. 

 In cases where PSI reports are used, they are routinely and heavily relied on by sentencing judges.  The judge has had the opportunity to study the report in advance of the hearing and will likely arrive at sentencing with at least some predetermined ideas about what kind of sentence to impose.  For this reason, it is essential that defendants enter into the PSI process aware of the potential impact their statements and behavior during the PSI interview can have on their sentencing outcomes - yet another reason why exercising the right to an attorney during the sentencing process can be beneficial.

Victim Impact Statements

            Where 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 counseling.    

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.[14]

             A victim impact statement may also address any restitution sought by the victim.  Restitution, in this sense, refers to payment for any financial losses the victim sustained as a result of the defendant’s criminal actions.  For a victim who sustained physical injury, this would include doctor bills and the cost of ongoing treatment.  Or, if the offense caused damage to the victim’s property, the restitution sought might be the amount needed to repair or replace the damaged property.

                 Victim impact statements were rarely used before the early 1980s but have since become common practice.[15]  While states vary on exactly how victim impact statements may be used during the sentencing process, all fifty states now allow them to some degree.  The use of victim impact statements in federal cases is governed by the Crime Victim’s Rights Act,[16] which was passed in 2004.  The Act assures that victims in federal cases can be heard during sentencing, and that the right to be heard includes the right to read a victim impact statement aloud.[17]   

 Most states afford victims the same rights, although a few states have somewhat different rules.   Kentucky and North Carolina statutes had historically only guaranteed victims the right to submit their input in written form.[18]  However, with the recent passage of ballot measures known as Marsy’s Law in both states, their laws may be changing.[19]  In Texas, a victim has the right to prepare a written victim impact statement and the sentencing judge has the duty to read and consider it, but the statement itself does not become part of the record and the victim does not have the guaranteed right to read it aloud during sentencing.  Rather, the victim may only appear in person to read the statement after the judge has imposed the sentence.[20]

                 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. 

     In death-penalty cases, as murder victims are deceased and thus unable to speak on their own behalves, surviving family members may provide impact statements.  However, the Supreme Court has ruled that in death-penalty cases, improper use of impact statements can violate the Constitution.[21]  In Bosse v. Oklahoma, Bosse was convicted of murdering a mother and her two children.  During sentencing, wherein the prosecution sought the death penalty, three of the victim’s surviving family members spoke, and all three survivors asked that the defendant be sentenced to death.  The sentencing jury recommended the death penalty. Bosse appealed, arguing that consideration of the survivors sentencing recommendations violated his Eighth Amendment protection against cruel and unusual punishment.  The Supreme Court ruled that a death sentence should be based on the blameworthiness of the defendant, including his background and the nature of the crime.[22]  To allow the focus to instead shift to the wishes of the survivors could lead to imposition of the death penalty in an arbitrary manner, dependent on the beliefs of the survivors in one case versus survivors in another.  The Court found that Bosse’s Eighth Amendment rights were violated by allowing his victims’ survivors to recommend the death penalty. Under Bosse, while survivors are permitted to say how they have been affected by the crime, they are constitutionally barred from including a recommendation that the defendant should be sentenced to death.

 In Module 3, we will wrap up our coverage of criminal sentencing with a discussion of the ways in which the federal and state governments have sought to bring consistency to sentencing with the imposition of sentencing statutes and guidelines, and how these rules are applied. 

[1]  Lafler v. Cooper, 566 U.S. 156, 157 (2012).

[2] SeeWilliams v. New York, 337 U.S. 241, 251 (1949); United States v. Watts, 519 U.S. 148, 151 (1997).

[3] See Mempa v. Rhay, 389 U.S. 128, 134 (1967).

[4] Gideon v. Wainwright, 372 U.S. 335 (1963).

[5] Fed. R. Crim. P. 32(i)(4)(A).

[6] See Kimberly A. Thomas, Beyond Mitigation: Towards a Theory of Allocution, 75 Fordham L. Rev. 2641, 2649 (2007).

[7] Fed. R. Crim. P. 43(c)(1)(C).

[8] Fed. R. Crim. P. 43(c)(1)(A).

[9] Fed. R. Crim. P. 43(c)(1)(B).

[10] Fed. R. Crim. P. 32 (i)(2).

[11] Green v. Georgia, 442 U.S. 95, 97 (1979).

[12] Gardner v. Florida, 430 U.S. 349, 362 (1977).

[13] U.S. Sentencing Guidelines Manual, §6A1.1 (U.S. Sentencing Comm’n 2016).

[14] Paul G. Cassell, In Defense of Victim Impact Statements, 6 Ohio St. J. Crim. L. 611 (2009).

[15] See President’s Task Force on Victims of Crime, Final Report 18 (Dec. 1982), https://www.ovc.gov/publications/presdntstskforcrprt/87299.pdf

[16] 18 U.S.C. § 3771(a) (2004).

[17] Kenna v. United States District Court, 435 F.3d 1011(9th Cir. 2006).

[18] See Ky. Rev. Stat. Ann. § 421.520 (2018); see also N.C. Const. art.1, §37.

[20] Tex. Code Crim. Proc. Ann. § 42.03 (2017).

[21] Bosse vOklahoma580 U.S. ___, 137 S.Ct. 1 (2016).