Criminal Procedure

Sentencing After conviction, a defendant may be allowed to remain free until sentencing. The decision on this issue is made by the court, and it depends on the nature of the conviction and the nature of the defendant's perceived character. For example, a court will not allow a convicted murderer or rapist to remain free until sentencing. A court may, however, allow a nonviolent convict to post a bond and to remain free pending sentencing.

Sentencing for a felony conviction is usually heard by the court in a separate hearing held several days or weeks after the verdict. At a felony sentencing hearing, the prosecution makes a recommendation of punishment, and the defendant usually argues for leniency. For lesser offenses, such as misdemeanors and violations, sentencing may immediately follow the verdict.

Judges generally have wide discretion to craft individualized sentences within statutory guidelines. However, states violate defendants' Sixth Amendment right to trial by jury in capital cases when they authorize the sentencing judge alone to determine the presence or absence of aggravating factors required for the imposition of the death penalty. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). And where a capital defendant's future dangerousness is at issue and the only sentencing alternative to death available to the jury is life imprisonment without the possibility of PAROLE, due process requires the court to allow the defendant to inform the jury of his or her parole ineligibility, either by a jury instruction or in arguments by counsel. Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed. 2d 178 (2001).

Sentencing can include any combination of community service, FORFEITURE of property, fines, and incarceration. Courts may also exercise their sentencing discretion and order a term of PROBATION.

Under state and federal forfeiture laws, law enforcement authorities are authorized to confiscate property of certain criminal defendants. Under federal law, persons who have been convicted of controlled-substance violations or RACKETEERING schemes may be forced to relinquish much of their PERSONAL PROPERTY, including real estate, stocks, cash savings, and vehicles. States also authorize forfeitures for the violation of certain state laws, such as those regarding controlled substances and the solicitation of prostitution.

Probation releases a convicted defendant into the community under the supervision of a probation officer. This type of sentence is generally reserved for first-time offenders, to give them an opportunity to reform and rehabilitate.

A probationer will be called back into court and sentenced to serve a term of incarceration if he or she breaks the terms of the probation. For example, suppose that a person who has been convicted of marijuana possession and sentenced to probation has been ordered to complete treatment for chemical dependency and to report to a probation officer twice a week. If the probationer fails to complete these requirements, the court may order the defendant to serve a period of incarceration for the marijuana offense.

If probation is revoked, the probationer is entitled to counsel. However, an indigent probationer is not automatically entitled to a court-appointed attorney. Whether a probationer receives free counsel depends on a number of factors. Generally, the court will appoint an attorney if an indigent probationer denies committing the alleged act and faces lengthy imprisonment.

Under the Eighth Amendment prohibition of cruel and unusual punishment, sentencing and confinement in jail or prison may not involve torture or barbarity. The Eighth Amendment is also construed as meaning that the punishment should fit the crime. For example, it would be cruel and unusual punishment to sentence a person who has been convicted of trespassing to the same punishment as a person who has been convicted of HOMICIDE.

With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The U.S. Supreme Court has considered the issue of proportionality, particularly in the context of the death penalty. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Court held that death was a disproportionate penalty for the crime of raping an adult woman.

But the high court has held that the death penalty itself is not inherently cruel, instead describing it as "an extreme sanction, suitable to the most extreme of crimes" (GREGG V. GEORGIA, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976]). Modern methods of administering CAPITAL PUNISHMENT, such as shooting, hanging, electrocution, and lethal injection, have been upheld as constitutional by federal and state courts. The U.S. Supreme Court has held that statutes providing a mandatory death sentence for certain degrees or categories of murder are unconstitutional because they preclude sentencing authorities from considering aspects of a particular defendant's character or record, or from considering circumstances that might mitigate a particular crime (see Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), the Court held that the Eighth Amendment prohibits states from inflicting the penalty of death upon a prisoner who is insane.

The U.S. Supreme Court has also ruled that the execution of mentally retarded criminals violates the Eighth Amendment's guarantee against cruel and unusual punishment. ATKINS V. VIRGINIA, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Citing "evolving standards of decency," the Court stated that its decision was informed by a national consensus reflected in deliberations of the American public, legislators, scholars, and judges. Atkins overruled Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13 years earlier. However, in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15.

Appeal Contrary to popular belief, the U.S. Constitution does not guarantee the right to appeal a criminal conviction. Most states do provide the right to an appellate review of criminal convictions, to protect against trial court errors. However, many states limit their review of state court convictions by hearing only short oral arguments and issuing decisions without explanation.

Federal statutes grant criminal defendants in federal court the right to appeal. Only one review is granted as a matter of right, and this is to a U.S. court of appeals. Review of state and federal convictions in the U.S. Supreme Court is discretionary.

Where a criminal appeal is granted by state law as a matter of right, the court is required to appoint an attorney to represent indigent defendants on appeal. An indigent defendant is also entitled to a free trial transcript or other means of affording appellate review; this applies to any indigent defendant, including one who is punished only with a fine.

On appeal, the burden is on the defendant to prove that an error occurred in the trial or that the evidence was insufficient to convict. Appellate courts reviewing a defendant's challenge to the appropriateness of a particular sentence must generally apply a deferential standard of review. Sentencing courts are in a better position than are appellate courts to decide whether a particular set of individual circumstances justifies the imposition of a given sentence under the sentencing guidelines, the U.S. Supreme Court has observed. Burford v. United States, 532 U.S. 59, 121 S. Ct. 1276, 149 L. Ed. 2d 197 (2001). Defendants must raise all claims of trial error in their first appeal in order to preserve the claims for future appeals.

Habeas Corpus Petitions After an incarcerated defendant has exhausted all appeals without success, he or she may file a writ of HABEAS CORPUS. This is a civil suit against the warden of the prison (in his or her professional capacity), challenging the constitutionality of the incarceration. There is no right to the assistance of an attorney for habeas corpus petitions.

A habeas corpus petition is not another appeal. The only basis for a writ of habeas corpus is the deprivation of a constitutional right. For example, an inmate may claim that he or she was denied the assistance of counsel guaranteed by the Sixth Amendment, because the defense attorney was incompetent. But defendants generally may not rely on habeas corpus proceedings to challenge a federal sentence on the ground that the prior state convictions upon which the federal sentence was based had been unconstitutionally obtained. Daniels v. United States, 5532 U.S. 394, 121 S.Ct. 1567, 149 L. Ed. 2d 608 (2001).

Parole If an inmate is released on parole and then violates the terms of the parole, he or she must attend a hearing to determine whether parole will be revoked. The parolee may be entitled to the assistance of counsel at the revocation hearing. This entitlement will depend on a number of factors, including whether the parolee denies committing the alleged acts, as well as the rules of the parole board. If the parolee can afford a private attorney, he or she is free to hire one; there is no bar to representation in parolerevocation hearings.

Inmates who seek parole often cite mitigating factors that existed either before, after, or at the time the crime was committed. However, parole boards and related EXECUTIVE BRANCH departments are under no obligation to give mitigating evidence any weight, and may typically reject an inmate's request for parole without providing any reason for doing so. Accordingly, the federal Bureau of Prisons has the authority to adopt regulations that categorically deny early-release incentive to prisoners whose current offense was a felony attended by "the carrying, possession, or use of a firearm." Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L. Ed. 2d 635 (2001).