Sentencing and Punishment

Question 1

What procedural rights are involved in sentencing?

Answer 1

defendant has a right to counsel.
Sentence may be based on hearsay/un-cross examined reports (no right to confrontation or cross-examination)
But facts related to sentence enhancements must be found in context granting right to confrontation and cross
Defendant in death penalty case is afforded more opportunity for confrontation than defendants in other proceedings

Question 2

Can a defendant be more harshly sentenced on reconnection after appeal?

Answer 2

Yes but judge must set forth in the record the reasons so as to ensure it is not a penalty for taking an appeal (not applicable to jury sentencing unless second jury. told of first jury’s sentence)

Question 3

What are the defendant’s substantive rights regarding punishment?

Answer 3

8A prohibits cruel and unusual punishment, which is a penalty grossly disproportionate to the seriousness of the offense

Question 4

When may the death penalty be imposed for murder?

Answer 4

Can be imposed only under a statutory scheme giving judge/jury reasonable discretion, full information, and guidance. Statute cannot be vague and must allow consideration of all mitigating evidence.

Question 5

Can a death sentence be partially based on the aggravating factor of a prior conviction?

Answer 5

yes, but if the prior conviction is invalidated, the sentence must be reversed

Question 6

What is the standard of review for a death sentence?

Answer 6

death sentence affected by an unconstitutional factor may be upheld but only if all aggravating and mitigating factors are reweighed

Question 7

Can the death penalty be imposed for rape?

Answer 7

no if the rape was neither intended to result nor did result in death/8A prohibition

Question 8

What kinds of prisoners does the 8A prohibit executing?

Answer 8

Those insane at the time of execution, even if sane at time of crime
Intellectually disabled prisoners
those who were minors at the time of the crime

Question 9

Can a person who does not remember the crime committed be executed?

Answer 9

yes, if they can still form a rational understanding of the reason for the death sentence

Question 10

When can a defendant challenge an execution procedure as cruel and unusual?

Answer 10

where they can show there is a serious risk of unnecessary pain or that there is a feasible alternative that can be readily implemented and reduces the risk of severe pain

Question 11

What does the 8A require of minors with regard to life imprisonment?

Answer 11

no life without parole sentence for non-homicide crimes

may be sentenced to life without parole for homicide, but no mandatory imposition of the sentence

Question 12

Can a judge take a defendant’s perjury into account in sentencing?

Answer 12

yes

Question 13

When is imprisonment for inability to pay costs/fines an equal protection violation?

Answer 13

where the aggregate imprisonment exceeds that maximum statutory period and results directly from involuntary nonpayment of fine/costs

Question 14

When is revocation of probation accompanied by a right to counsel?

Answer 14

when it also involves imposition of anew sentence
if it is an already imposed sentence springing into application, or parole revocation, right to counsel only available if representation is necessary to a fair hearing

Question 15

When do prison regulations impinge on due process rights?

Answer 15

when they impose atypical and significant hardship in relation to the ordinary incidents of prison life

Question 16

Do prisoners have 4A protections for cell searches?

Answer 16

no, no reasonable expectation of privacy

Question 17

How may prisoners’ 1A rights be burdened?

Answer 17

by regs reasonably related to penological interests

note: incoming mail can be regulated but outgoing mail cannot

usually need compelling interest to interfere with religious practices

Question 18

When does double jeopardy attach?

Answer 18

5A/person may not retried for the same offense once jeopardy attaches

Attaches in jury trial at empaneling and swearing of jury
Attaches at bench trial when first witness sworn
Commencement of juvenile proceeding bars subsequent criminal trial for same offense

Question 19

What exceptions to double jeopardy permit retrial even after jeopardy attaches?

Answer 19

First trial ends in hung jury
Manifest necessity to abort original trial or termination of first trial at behest of defendant
Defendant successfully appeals condition (unless ground for reversal is insufficient evidence to convict)
Reinstatement of charges after breach of plea bargain
Defendant could have been tried on all charges at once, but elected to have separate trials

Question 20

When are two crimes not the same offense?

Answer 20

two crimes are the same offense unless each crime requires proof of an additional element that the other does not require, even if there are overlapping facts

Question 21

When are multiple punishments permissible even where the two crimes constitute the same offense?

Answer 21

legislative intent to have cumulative punishments

Question 22

What is the effect of double jeopardy on lesser or greater offenses?

Answer 22

jeopardy for greater offense bars retrial for lesser included
jeopardy for lesser included bars retrial for greater
Exception: – the unlawful conduct used to prove the greater offense (1) had not occurred at prosecution of lesser offense or (2) had not been discovered despite due diligence (e.g., battery victim later dies)
Exception: may prosecute offense despite guilty plea on lesser included or allied offense

Question 23

What is the jurisdictional scope of double jeopardy?

Answer 23

doesn’t apply to separate sovereigns (may be tried for same conduct by state A and State B or by state and feds but not by state and municipalities

Question 24

When may the prosecution appeal?

Answer 24

Any dismissal on defendant’s motion not constituting acquittal on the merits

Question 25

What is collateral estoppel?

Answer 25

defendant may not be tried/convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction