Sentencing: Procedural Protection

The Supreme Court has drawn a sharp distinction between the constitutional requirements applicable to the guilt/innocence stage of the trial, and those applicable to the sentencing phase. Although a few of the constitutional rights traditionally associated with the trial of criminal cases apply at sentencing, the Court has held that many others do not.

Right to counsel. Perhaps the most important constitutional right afforded a defendant at the sentencing phase is the right to counsel. In Mempa v. Rhay, 389 U.S. 128 (1967), the Supreme Court held that the sentencing hearing is a part of the "criminal proceedings" for purposes of the Sixth Amendment right to the assistance of counsel. Accordingly, a defendant who cannot afford a lawyer is entitled to the assistance of counsel provided by the state during the sentencing hearing. The Supreme Court reasoned that defense counsel can play an important role in ensuring the accuracy of the information put before the sentencing judge. Counsel is needed at sentencing both to present evidence on the defendant's behalf and to respond to adverse information.

Privilege against self-incrimination. Another right that applies at the sentencing phase is a facet of the Fifth Amendment privilege against compelled self-incrimination. The Supreme Court has long held it is improper to penalize a defendant for invoking the privilege against self-incrimination, and for that reason the trier of fact in a criminal trial may not draw any adverse inference from the fact that the defendant has invoked the privilege. In Mitchell v. United States, 526 U.S. 314 (1999), the Supreme Court held that the rule against drawing such negative inferences applies with equal force to the sentencing phase; accordingly, the sentencing judge was prohibited from drawing any adverse inference, as to the amount of drugs the defendant conspired to sell, from the defendant's exercise of the Fifth Amendment privilege at sentencing. The Court reasoned that the stakes at the sentencing phase, where an adverse inference might warrant many years of additional imprisonment, are quite different (and more severe) than those in a civil proceeding where adverse inferences are permissible. The practical importance of the Mitchell decision is unclear. The Court pointedly declined to express a view on the possibility that the defendant's silence might be relied upon at sentencing to support an inference of lack of remorse. Such an inference might be nearly as damning as an inference of guilt.

Consideration of the exercise of other procedural rights. Although the Supreme Court has held that due process is violated by sentencing that punishes the defendant for the exercise of his procedural rights, such prohibited vindictiveness must be distinguished from the inferences a sentencing judge is permitted to draw from trial-related conduct that reveals a defendant's character and bears on his prospects for rehabilitation. In North Carolina v. Pearce, 395 U.S. 711 (1969), the Supreme Court held that due process would be violated by the vindictive imposition of a higher sentence at retrial to punish a defendant for the successful appeal of his first conviction. The Court stated that it would presume vindictiveness whenever a trial judge imposed a higher sentence following an appeal that set aside an earlier conviction for the same offense. Later decisions indicate that this presumption can be rebutted by objective information justifying an increased sentence (LaFave and Israel, pp. 1128–1134). Subsequent decisions have also determined that Pearce does not apply where the defendant's conduct during the trial involves perjury, which bears on the defendant's character and prospects for rehabilitation. In United States v. Grayson, 438 U.S. 41 (1978), the Supreme Court held that the sentencer could properly give weight to his conclusion that the defendant had perjured himself at the trial, since that conduct provided important information about the defendant's character. The Court rejected the argument that this would chill the exercise of the right to testify, commenting that there is a right to testify truthfully, but no protected right to commit perjury.

Evidentiary reliability. There is considerable support in the cases for the principle that due process requires that the evidence upon which a criminal sentence is based must meet minimal standards of reliability, though it is unclear how far this principle extends. Two decisions of the Supreme Court recognized a due process requirement of evidentiary reliability, though they do little to clarify its scope. In Townsend v. Burke, 334 U.S. 736 (1948), the Supreme Court reversed the defendant's state sentence because it was premised, in part, on the sentencing judge's erroneous belief that the defendant had several previous convictions. The Court emphasized that its decision did not mean that any error in resolving a question of fact at sentencing would be a due process violation. In the case before it, however, an uncounseled defendant pleaded guilty, and the sentence rested upon an error that counsel could easily have corrected. In a later decision, United States v. Tucker, 404 U.S. 443, 447 (1972), the Court held that a new sentencing proceeding was necessary because the sentence was founded "at least in part upon misinformation of constitutional magnitude." In Tucker the sentencing court relied upon the fact that the defendant had three prior convictions, and was unaware that the defendant has been unconstitutionally imprisoned for more that ten years (some of them on a chain gang) after being convicted in proceedings in which he was not represented by counsel.

Many decisions in the state courts and the lower federal courts rely upon Townsend v. Burke and Tucker for the principle that a sentence may not be based upon misinformation of a constitutional magnitude, or that the evidence upon which a sentence is based must show indicia of reliability. These decisions do not, however, establish sharp criteria for the determination of such reliability, and they do not equate the standards for sentencing with the standard applicable to the evidence supporting a conviction.