The Rights of the Accused following Trial

Conduct at trial can affect a defendant's sentence. For example, under the Federal Sentencing Guidelines, a defendant may receive an increased penalty (usually a longer prison term) if the defendant "willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution." In other words, if, in the estimation of the judge, the defendant "testif[ied] untruthfully" at trial, the defendant may receive a harsher-than-normal sentence.

The sentencing phase follows a criminal conviction. Between the day of conviction and the day of sentencing, the court has the option of jailing the defendant or releasing the defendant into the community until the sentencing date. If the court decides to release the defendant, the defendant may be required to post a security bond with the court to ensure his or her return to court for sentencing.

Convicted criminal defendants have the right to present a case for themselves at the sentencing phase. In most states, if the conviction was a violation or petty misdemeanor and the defendant is not being sentenced to jail or prison, the court conducts no hearing and simply imposes a sentence on the defendant immediately after the verdict is reached. In any case, the judge gives the defendant an opportunity to make a statement in his or her defense before the judge hands down the sentence.

In most states, the court holds a sentencing hearing for felony convictions and convictions that can lead to incarceration. This hearing is usually held several days or weeks after delivery of the verdict and can consist of oral testimony, cross-examination of witnesses, evidence, and arguments to the sentencing authority (either the judge or the jury). Sentencing options for judges include fines, imprisonment, restitution to victims, probation, and a variety of lesser penalties.

Probation is a status of conditional liberty. That is, the defendant is free only so long as he fulfills certain conditions and refrains from certain conduct. A judge may order a probationer to do or refrain from doing a number of things for the length of the probationary period. The length of a probationary period can depend on a variety of factors, most significantly the seriousness of the crime.

On the federal level and in most states, sentences are formulated from "sentencing guidelines." Sentencing guidelines set forth a presumptive sentence for a conviction based on factors that relate to the defendant and the crime involved. Such factors include the nature of the defendant's crime or crimes and the defendant's criminal history. The judge may depart from the sentencing guidelines, and if the sentence stays within the minimum and maximum allowed under the guidelines, the judge does not have to state the reasons for the departure on the record. If, however, a judge decides to increase or decrease a defendant's sentence beyond the maximum and minimum sentences allowed under the guidelines, the judge must clearly state the reasons for the departure on the record.

For years, the general rule on sentencing under U.S. Supreme Court decisions was that the Eighth Amendment prohibited punishments that were grossly disproportionate to the offense committed. However, this rule was officially questioned by the Supreme Court in Harmelin v. Michigan (1991). In that case, the Court upheld the life sentence of Ronald Harmelin. Although Harmelin did not have any prior felony convictions, the trial court was compelled by the sentencing guidelines in Michigan to impose a life sentence after Harmelin was convicted of selling more than 650 grams of cocaine.

Capital defendants are entitled to a full sentencing hearing before a sentencing authority. The sentencing authority is either the judge or jury or both. In most cases, the sole sentencing authority in a capital case is the jury that delivered the verdict. At the hearing, the sentencing authority must be given sufficient guidance to make an informed decision. If the prosecution argues to the jury that a capital defendant should be put to death because he presents a future danger to the community, the defendant has the right to inform the sentencing authority that he would be ineligible for parole and would die in prison if it decides to reject the death penalty.

Sentences may be appealed. The standards for sentencing review vary from state to state. Approximately half of all states allow appeals courts to review all sentences, even sentences that are within statutory guidelines. Other states allow appellate review only of sentences that fall below or above the state's sentencing guidelines.