Sentencing: Procedural Protection

Many constitutional rights afforded at the trial stage no longer apply once the sentencing phase begins. In Williams v. New York, 337 U.S. 241 (1949), the Supreme Court decisively rejected the claim that due process limits the sentencing judge to considering the same sources and kinds of evidence that would be admissible at trial. The Court distinguished the function of the trial and that of sentencing. At trial, the issue is the defendant's guilt or innocence of the elements of the offense and rules of evidence are used to limit the fact-finder to information that is material to these limited issues. At sentencing, in contrast, the judge traditionally had a wide range of discretion in setting an individual defendant's punishment, and in making that discretionary determination the judge should be permitted to consider a broad spectrum of information regarding the defendant's life and characteristics. The Court concluded that the judge should not be limited to considering only evidence provided in open court by witnesses who would be subject to cross-examination, but should also be permitted, for example, to consider the reports prepared by probation officers. Although the Court referred to modern efforts to employ sentencing for rehabilitative purposes intended to benefit offenders, the issue in Williams was the trial judge's reliance on hearsay evidence in the presentence report that the defendant had committed thirty burglaries for which he had never been convicted. Even though this evidence would not have been admitted at trial, the Supreme Court upheld Williams's death sentence.

Williams was a landmark decision that set the pattern for much of the analysis in the next half century. In Williams the Supreme Court drew a sharp distinction between the trial itself—with its full panoply of constitutional protections for the accused—and the sentencing hearing, at which relaxed procedures are permitted and perhaps desirable. Later decisions dealing with a number of other constitutional guarantees followed this pattern. The one exception, Specht v. Patterson, 386 U.S. 605 (1967), involved a state statute allowing the imposition of a life sentence on a defendant convicted of certain sexual offenses who was also found to be mentally ill and a habitual offender. The Supreme Court distinguished Williams on the ground that the sex offender act required the invocation of a separate criminal proceeding under a different statute. Specht has been largely limited to the particular statutory scheme involved in that case, and has not been extended to sentencing proceedings in general.

Proof beyond a reasonable doubt. In the trial itself, due process requires that the prosecution prove each fact necessary for conviction beyond a reasonable doubt. The Supreme Court has repeatedly recognized, however, that the reasonable doubt standard is not constitutionally required at the sentencing phase. In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Supreme Court noted that traditionally sentencing courts heard evidence and found facts without being required to observe any particular burden of proof. Declining to constitutionalize the burden of proof at sentencing, the Court rejected the argument that a sentencing factor that subjected a defendant to a mandatory minimum sentence must be proven by more than a preponderance. In McMillan the sentencing factor in question required that the defendant receive a mandatory minimum sentence within the authorized sentencing range for the offense. As noted below, a more recent decision of the Supreme Court raises the question whether McMillan will be applied when the sentencing fact in question increases the range of the sentence to which a defendant is subject above that ordinarily applicable to the offense of conviction.

Since the government's burden of proof at trial is far higher than it is at sentencing, evidence that would not meet the standard of proof beyond a reasonable doubt may meet the preponderance ("more likely than not") standard applicable at the sentencing phase. Given this difference in the burden of proof, the Supreme Court concluded in Watts v. United States, 519 U.S. 148 (1997), that the government may rely at sentencing on conduct of which the defendant had been acquitted. The Court rejected the argument that reliance on acquitted conduct would be inconsistent with the jury's verdict or violate the double jeopardy clause. It reasoned that a jury acquittal is not a finding of innocence, but only a finding that the government has not established guilt beyond a reasonable doubt. Accordingly, an acquittal should not preclude the government from relitigating an issue in a subsequent proceeding, such as a sentencing hearing, where it need only meet a lower standard of proof. This issue arises principally in real offense sentencing systems, where facts that are not elements of the conviction offense can have a major impact on the severity of the sentence.

Trial by jury. In McMillan v. Pennsylvania , the Supreme Court also considered and rejected the claim that the Sixth Amendment right to trial by jury applies to the sentencing phase. The issue in McMillan was whether the defendant visibly possessed a firearm during the commission of his offense. The defendant argued that the Sixth Amendment requires the necessary findings should be made by the jury, rather than the court, at least where the factor relates to the commission of the offense of conviction. The Supreme Court rejected this claim with the comment that "there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact." Later decisions by the Court have reaffirmed this principle, which is consistent with the traditional Anglo-American allocation of sentencing authority to the court. Indeed, even in the context of capital punishment the Supreme Court has repeatedly rejected the argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence. It should be noted, however, that many jurisdictions that authorize the death penalty provide for jury sentencing in capital cases, and a few states authorize jury sentencing (or jury recommendations) in noncapital cases as well.

Confrontation and cross-examination. As noted above, in the Williams case the Supreme Court rejected a claim that due process was violated by the introduction of evidence, such as a probation report, that presented adverse information in a form that provided the defendant with no opportunity for confrontation and cross-examination in open court. Subsequent cases in the lower courts raised the same general arguments under the confrontation clause of the Sixth Amendment. Although this issue has not been addressed by the Supreme Court, nearly every federal circuit has relied upon the sharp distinction between the guilt phase of the trial—where full rights of confrontation are accorded—and the sentencing phase, which begins once the fact finder concludes that the defendant's guilt has been established. However, many of these decisions also recognize that due process is violated if a defendant is sentenced on the basis of "misinformation of a constitutional magnitude," and accordingly that the evidence upon which a conviction is based must show some indicia of reliability. It should be noted that many of these decisions, such as United States v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc), were rendered by divided courts, and that the dissenting judges would have required confrontation.

The Fourth and Fifth Amendment exclusionary rules. The Supreme Court's decisions outlining the scope of the exclusionary rules under the Fourth and Fifth Amendments focus on the guilt-innocence phase of the criminal trial, and the Court has not ruled on the question whether the exclusionary rules apply to sentencing proceedings. In general, the lower federal courts have concluded that the exclusionary rules do not apply to federal sentencing. These decisions follow the approach employed by the Supreme Court to determine whether the exclusionary rule should be applied to other kinds of proceedings (such as immigration deportation proceedings, grand jury proceedings, and civil tax proceedings) where the Supreme Court balanced the likelihood of deterring constitutional violations against the cost of withholding relevant and reliable information. Although recognizing the possibility that government investigators might have an incentive to illegally seize evidence in order to increase a suspect's sentence, the lower courts have generally concluded that the potential for deterrence is outweighed by the need for the sentencing judge to have access to a wide range of information in tailoring individual sentences.

On the other hand, several state courts have concluded that their state constitutions provide greater protection and bar the admission at sentencing of evidence obtained by an illegal search or by a confession obtained from a suspect who was not given his Miranda warnings. It should also be noted that some courts that do not generally apply the exclusionary rule to sentencing proceedings have indicated that illegally seized evidence will be suppressed at sentencing if it can be shown that it was seized in order to increase the defendant's sentence.