12.2 Sentencing Limitations

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

12.2 SENTENCING LIMITATIONS

The constitutional limits on the sentencing process are few, ⁶⁸ and appellate review of the sentencing process is difficult since only in the exceptional case do the reasons for a particular sentence appear on the record. The United States Supreme Court, however, has stated that a defendant has a legitimate interest in the character of the procedure that leads to the imposition of sentence even if he or she has no right to object to a particular result of the sentencing process. ⁶⁹

The defendant may plead guilty at any time before the return of the jury's verdict. But after the jury has returned a verdict of guilty, the defendant cannot plead guilty and eliminate the jury's authority to determine punishment. ⁷⁰

In United States v. Grayson, ⁷¹ the Court held that a court may take into account in imposing sentence whether the defendant testified truthfully at trial. In Roberts v. United States, ⁷² the Court refused to find a constitutional violation when the trial judge indicated that one factor considered in imposing sentence was the defendant's refusal to cooperate with an ongoing police investigation. A defendant's abstract beliefs may not be considered when imposing sentence, but "motive" is an important factor and may be considered. ⁷³

[Page 755]

In United States v. Booker, ⁷⁴ the Supreme Court, relying on its decisions in Apprendi and Blakely,⁷⁵ held that mandatory federal sentencing guidelines violated the Sixth Amendment. The trial judge in Booker found additional facts by a preponderance of the evidence at the sentencing stage. Because these findings mandated a sentence between 360 months and life, the judge gave Booker a 30-year sentence instead of the 21-year, 10-month sentence he could have imposed based on the facts proved to the jury beyond a reasonable doubt. The Supreme Court held that the increased sentence violated the Sixth Amendment because the evidence relied on was not proven beyond a reasonable doubt and not presented to the jury.

In Harris v. United States, ⁷⁶ the Supreme Court held that the judge's imposition of a higher sentence based on a finding of preponderance of the evidence that the defendant had brandished a firearm during the commission of the offense for which he was found guilty was a permissible "sentencing factor" and not an element of the "crime." The defendant had protested that he was not charged with brandishing and that the failure to present evidence of that offense to the jury for its determination violated both his Fifth ⁷⁷ and Sixth Amendment ⁷⁸ rights. The Supreme Court held that none of these safeguards were required for judicial fact-finding that results in a sentence within the range provided by statute. ⁷⁹

In limited circumstances, some courts have found constitutional violations when the sentence imposed was influenced by race or sex ⁸⁰ or because the defendant elected to be tried before a jury. ⁸¹ A court may not consider, as

[Page 756]

part of the "history of the accused," a prior acquittal on another criminal charge, ⁸² and the United States Supreme Court has held that the sentencing authority may not consider prior invalid convictions. ⁸³ Failure to consider whether a jury sentence should be mitigated because of a belief that a jury's verdict is inviolate is an abuse of discretion, ⁸⁴ as is a trial court's policy of imposing the maximum sentence in a particular type of case regardless of the circumstances. ⁸⁵ While it is proper for a trial court to consider a defendant's refusal to accept responsibility or show remorse when considering whether to set aside a death sentence and impose a sentence of life imprisonment, the court's ruling may not be linked to the defendant's prior claim of innocence or not guilty plea, or to the exercise of the right to remain silent, which would penalize the defendant at sentencing for having mounted a legal defense to the charges. ⁸⁶

The United States Supreme Court has indicated that when special sentencing procedures are used, such as those for habitual offenders or persons convicted of certain sex-related crimes, due process requires that, before the sentence is imposed, the accused be given the right to be heard through counsel, to be confronted with witnesses, to cross-examine witnesses, and to offer evidence. ⁸⁷ A program for sex offenders that requires them to admit past criminal sexual conduct without immunity in order to participate in a rehabilitation program as an alternative to maximum security confinement with fewer privileges does not violate the Fifth Amendment. As long as the consequences the inmate faces do not exceed the conditions otherwise imposed for conviction, there is no unconstitutional compulsion. ⁸⁸

[Page 757]

Hearsay evidence of unadjudicated criminal activity is admissible at sentencing upon a showing of some indicia of reliability. The Sixth Amendment right of confrontation is a trial right and does not apply in post-trial sentencing proceedings—the Due Process Clause defines the evidence available at sentencing. ⁸⁹ Likewise, a sentencing court may consider hearsay evidence to establish the...