Chapter 17 Sentencing

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 17 Sentencing

It is well known that conviction rates in felony cases tend to be quite high. It is also true that conviction rates in murder cases tend to be higher than in other cases.¹ As a result, defense counsel may recognize that in many murder cases the best outcome that is realistically achievable for a defendant will often be damage limitation rather than a total acquittal. In other words, minimizing the sentence may be achievable where an acquittal may not be a realistic hope.

On the other hand, prosecutors must realize that a finding of guilty is simply the green light to get to the stage of the proceedings that really matters—the sentencing stage. The pronouncement of guilty alone does little more than impose a judicial scolding on the defendant.² It is the sentencing that matters. Important crimes deserve important sentences.

What Are the Sentencing Possibilities?

The first variable to be identified is the maximum sentence available for the offense of conviction. Sometimes it is not so easy to figure that out. For instance, if the defendant has been convicted of two murders, two counts of desecration of a body, one count of burglary, illegal possession of a firearm, illegal possession of explosives, two counts of kidnapping, and one count each of witness tampering and obstruction of justice, one may need a chart to keep track of each of the potential sentences. Then there is the issue of whether the offenses "merge" with each other for sentencing purposes and the issue of consecutive or concurrent sentencing for each offense.³ Finally, there may be issues of mandatory minimum sentencing, probation, parole eligibility, and restitution. The laws vary widely from one jurisdiction to another. None of this is unique to murder cases, so here we simply alert you to the issues that must be considered. In a death penalty case, one may still have all of the above issues whether or not the defendant is sentenced to death.

One also needs to be aware of specific provisions in statutes that can affect a sentence. For example, certain firearms enhancement statutes have mandatory minimum sentences for possession or use of a firearm during an offense. Other statutes might prohibit probation or determine parole processes. Indeed, some homicide offenses may result in mandatory imprisonment. One needs to be aware of these provisions that relate to the charged offenses.

Who Does the Sentencing?

Sentencing authority varies widely from one jurisdiction to another. Some jurisdictions have sentencing by the judge, others by the jury. Some may have jury recommendations that the judge simply takes into consideration when deciding the sentence. In those cases, advocates must convince both the jury and the judge as to the appropriate sentence. This may influence how one conducts the sentencing hearing—whether one calls witnesses and presents evidence or whether one simply makes an argument based on a pre-sentence report or the evidence presented at trial.

In the federal system since Booker,⁴ the federal guidelines—formerly controlling—have essentially become advisory. Since judges can depart from the guidelines, an advocate has even a greater opportunity to influence the sentence.

In some jurisdictions, the reality may be that neither the judge nor the jury effectively determines the time the defendant will serve. This might be true in jurisdictions that have mandatory "indeterminate" or "range" sentences for specific offenses. For example, if your jurisdiction requires a judge to impose a sentence of five years to life as a result of a murder conviction and your jurisdiction authorizes a parole board to decide when or if the defendant will be released, then the parole board is the real sentencing authority. In this last instance, follow-through with the parole board is called for. For prosecutors, it is imperative that the parole board has all of the information necessary to result in a just sentence. In some jurisdictions, prosecutors may submit written comments on the case to the parole board—an invitation that ought not to be overlooked. For the defense, parole boards need to be given the information in mitigation of the crimes and periodically updated with new information as to why the defendant is a suitable candidate for parole.

Once one has determined what the possible sentence(s) are and who will decide the sentence, you are in a position to begin preparation for a sentencing hearing. For both sides of the case, what was presented at trial and what happened at trial will have a profound impact on the sentencing hearing.

Impact of the Trial on Sentence

Cases are often disposed of by plea agreements. This serves two purposes: (1) It assures the prosecution of a conviction and (2) for the defendant it usually results in a limitation upon or a reduction of the potential sentence. An agreed plea may result in providing the prosecution with the testimony of the defendant in other cases, which will also allow the defendant to further influence the sentence by arguing "cooperation" and "remorse." But not all cases will result in an agreed disposition. Some go to trial, and statistically a large number of those result in a conviction and sentencing.

Consider the following in a jurisdiction in which juries do the sentencing: The defendant has taken the witness stand and sworn that he didn't commit the crime, then the defense counsel has argued in closing argument that defendant is innocent, after which the jury finds the defendant guilty beyond a reasonable doubt. When one arrives at the sentencing hearing, the defendant who swore that he didn't do it will have even less credibility by then saying he's really sorry he committed the murder(s). The jury also heard the trial argument made by the defense counsel, and after that voted that the argument was not worthy of belief—beyond a reasonable doubt! That same defense counsel whom the jury found unpersuasive during the case-in-chief now rises to make a sentencing argument to that same jury. If there is more than one defense counsel, then the defense should consider having the sentencing argument made by the counsel who did not argue the case-in-chief.

Obviously, there are factors presented at trial that affect the sentence. Among these are

• The number of murders
• What other crimes were committed, especially violent crimes
• The gruesomeness of the murder(s) and aggravated method of torture
• The motive for the murder (e.g., murder for hire)
• The victim (the murder of a child may have a different impact on a jury than the murder of another killer/drug dealer)
• The prior record of the defendant including his background and upbringing⁵
• The demeanor of the defendant at trial (including the credibility of his testimony, if any)
• The defendant's mental status
• His explanation, if any, for the crime, and
• The vibrancy of the evidence (a tape recording of the murder being committed, for example).

More subtle considerations might include how well the jury likes or dislikes the attorneys for each side. It may be inappropriate for the jury to consider this, but anecdotally, the reality is that they do.

Because the sentence is important and because trial presentations by both sides can significantly affect the sentence, counsel need to prepare for the sentencing hearing in advance of the trial. This will enable counsel to have an integrated presentation and a consistent theme from beginning to end. This is especially true in cases that have bifurcated proceedings. The whole presentation can be tailored to the culmination—the sentencing arguments. For example, consider a case in which the defense raises the defendant's mental status, suggesting that he was acting bizarrely and "just snapped" due to a substandard intellect and an abnormal mental condition. In such a case the prosecutor and investigators should prepare in advance of trial by locating lay witnesses who can testify to the defendant's seemingly normal demeanor and above-average achievements. In anticipation of this sort of rebuttal evidence, defense counsel needs to have his expert witnesses explain how such evidence does not contradict the conclusion that the defendant has a substandard intellect and a mental disability. These same themes can be argued at sentencing by each side.

Pre-Sentence Reports

Most jurisdictions provide for a pre-sentence report.⁶ Advocates can influence these reports by making sure that the author of the report has all of the information that bears on the recommendation. Since the preparation of the pre-sentence report is common to many criminal cases, there is no need to dwell upon this subject.⁷

Victims and Surviving Family Members

Both sides of the case have to consider the effect the victim of the crime will have on the sentencing authority. Obviously, some victims garner more sympathy than others, such as a child victim of murder as compared with that of a co-conspirator drug dealer who ends up murdered by his "accomplice."

Victim impact evidence, at a sentencing hearing, can significantly affect the sentence. In Payne v. Tennessee, the U.S. Supreme Court held that the receipt into evidence of the impact of the crime upon the victim or the surviving family members does not violate the Eighth Amendment to the Federal Constitution (overruling Booth v. Maryland).⁸ However, what constitutes "victim impact evidence" is not unlimited. Payne did not overrule the prohibitions against the admission of "information concerning a victim's family members' characterization of and opinions about the crime, the defendant, and the appropriate sentence."⁹

Victims' rights laws provide, in most cases, that the murder victim's family members may make a victim impact statement at the sentencing hearing.¹⁰ In fact, legislative authorization may be necessary to make victim impact statements admissible.¹¹ Victim impact statements can significantly affect the attitude of the sentencing authority. From the very...