Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has struck down criminal sentences on due process grounds when the sentencing judge relied on inaccurate information1 or the sentencing jurors considering invalid factors.2 Aside from those circumstances, procedural due process imposes few limits on criminal sentencing.3 In Williams v. New York, the Court upheld the imposition of the death penalty, despite a jury’s recommendation of mercy, where the judge acted based on information in a presentence report not shown to the defendant or his counsel.4 The Court opined that it was undesirable to restrict judicial discretion in sentencing by requiring adherence to rules of evidence that would exclude highly relevant and informative material. Further, disclosure of such information to the defense could dry up sources who feared retribution or embarrassment. Thus, hearsay and rumors can be considered in sentencing. In Gardner v. Florida, however, the Court limited the application of Williams to capital cases.5

In United States v. Grayson, a noncapital case, the Court relied heavily on Williams in holding that a sentencing judge may properly consider his belief that the defendant was untruthful in his trial testimony in deciding to impose a more severe sentence than he would otherwise have imposed.6 The Court declared that the judge must be free to consider the broadest range of information in assessing the defendant’s prospects for rehabilitation, and the defendant’s truthfulness, as assessed by the trial judge from his own observations, is relevant information.7

There are some sentencing proceedings, however, that so implicate substantial rights that additional procedural protections are required.8 In Specht v. Patterson, a defendant had been convicted of taking indecent liberties, which carried a maximum sentence of ten years, but was sentenced under a sex offender statute to an indefinite term of one day to life.9 The sex offender law, the Court observed, did not make the commission of the particular offense the basis for sentencing. Instead, by triggering a new hearing to determine whether the convicted person was a public threat, a habitual offender, or mentally ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. In Mempa v. Rhay, the Court held that, when sentencing is deferred subject to probation and the convicted defendant is later returned for sentencing following an alleged probation violation, the sentencing is a point in the process where substantial rights of the defendant may be affected, so the defendant must be represented by counsel.10

A state may also violate due process if it attempts to withhold relevant information from the sentencing jury. For instance, in Simmons v. South Carolina, the Court held that due process requires that if prosecutor makes an argument for the death penalty based on the future dangerousness of the defendant to society, the jury must then be informed if the only alternative to a death sentence is a life sentence without possibility of parole.11 But, in Ramdass v. Angelone, the Court refused to apply the reasoning of Simmons because the defendant was not technically parole ineligible at time of sentencing.12

Due process prohibits penalizing a defendant for exercising a right to appeal. Thus, it is a denial of due process for a judge to sentence a convicted defendant on retrial to a longer sentence than he received after the first trial, if the object of the sentence is to punish the defendant for having successfully appealed his first conviction or to discourage similar appeals by others.13 If the judge imposes a longer sentence the second time, he must justify it on the record by showing, for example, the existence of new information meriting a longer sentence.14 By contrast, the Court has declined to apply the requirement of justifying a more severe sentence upon resentencing to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence, reasoning that the possibility of vindictiveness in jury resentencing is de minimis.15 The presumption of vindictiveness is also inapplicable if the first sentence was imposed following a guilty plea, as a trial may afford the court insights into the nature of the crime and the character of the defendant that were not available following the initial guilty plea.16

Footnotes

1

In Townsend v. Burke, 334 U.S. 736, 740–41 (1948) the Court overturned a sentence imposed on an uncounseled defendant by a judge who in reciting defendant’s record from the bench made several errors and facetious comments. “[W]hile disadvantaged by lack of counsel, this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.” Id.

2

In Hicks v. Oklahoma, 447 U.S. 343 (1980), the jury had been charged in accordance with a habitual offender statute that if it found defendant guilty of the offense charged, which would be a third felony conviction, it should assess a punishment of forty years’ imprisonment. The jury convicted and gave the defendant forty years. Subsequently, in another case, the habitual offender statute under which Hicks had been sentenced was declared unconstitutional, but Hicks’ conviction was affirmed on the basis that his sentence was still within the permissible range open to the jury. The Supreme Court reversed, holding that Hicks was denied due process because he was statutorily entitled to the exercise of the jury’s discretion and could have been given a sentence as low as ten years. That the jury might still have given the stiffer sentence was only conjectural. On other due process restrictions on the determination of the applicability of recidivist statutes to convicted defendants, see Chewning v. Cunningham, 368 U.S. 443 (1962); Oyler v. Boles, 368 U.S. 448 (1962); Spencer v. Texas, 385 U.S. 554 (1967); Parke v. Raley, 506 U.S. 20 (1992).

3

Due process does not impose any limitation on the sentence that a legislature may affix to any offense; such restrictions come from the Eighth Amendment. Williams v. Oklahoma, 358 U.S. 576, 586–87 (1959). See also Collins v. Johnston, 237 U.S. 502 (1915). On recidivist statutes, see Graham v. West Virginia, 224 U.S. 616, 623 (1912); Ughbanks v. Armstrong, 208 U.S. 481, 488 (1908), and, under the Eighth Amendment, Rummel v. Estelle, 445 U.S. 263 (1980).

4

337 U.S. 241 (1949). See also Williams v. Oklahoma, 358 U.S. 576 (1959).

5

430 U.S. 349 (1977). In Gardner, the jury had recommended a life sentence upon convicting defendant of murder, but the trial judge sentenced the defendant to death, relying in part on a confidential presentence report that he did not characterize or make available to defense or prosecution. Justices John Paul Stevens, Potter Stewart, and Lewis Powell found that because death was significantly different from other punishments and because sentencing procedures were subject to higher due process standards than when Williams was decided, the report must be made part of the record for review so that the factors motivating imposition of the death penalty may be known, and ordinarily must be made available to the defense. 430 U.S. at 357–61. All but one of the other Justices joined the result on various other bases. Justice William Brennan thought the result was compelled by due process, id. at 364, while Justices Byron White and Harry Blackmun thought the result was necessitated by the Eighth Amendment, id. at 362, 364, as did Justice Thurgood Marshall, id. at 365. Chief Justice Warren Burger concurred only in the result, id. at 362, and Justice William Rehnquist dissented, id. at 371. See also Lankford v. Idaho, 500 U.S. 110 (1991) (due process denied where judge sentenced defendant to death after judge’s and prosecutor’s actions misled defendant and counsel into believing that death penalty would not be at issue in sentencing hearing).

6

438 U.S. 41 (1978).

7

438 U.S. at 49–52. See also United States v. Tucker, 404 U.S. 443, 446 (1972); Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973). Cf. 18 U.S.C. § 3577.

8

See, e.g., Kent v. United States, 383 U.S. 541, 554, 561, 563 (1966), where the Court required that before a juvenile court decided to waive jurisdiction and transfer a juvenile to an adult court it must hold a hearing and permit defense counsel to examine the probation officer’s report that formed the basis for the court’s decision. Kent was ambiguous whether it was based on statutory interpretation or constitutional analysis. In re Gault, 387 U.S. 1 (1967), however, appears to have constitutionalized the language.

9

386 U.S. 605 (1967).

10

389 U.S. 128 (1967).

11

512 U.S. 154 (1994). See also Lynch v. Arizona, 136 S. Ct. 1818, 1820 (2016) (holding that the possibility of clemency and the potential for future legislative reform does not justify a departure from the rule of Simmons); Kelly v. South Carolina, 534 U.S. 246, 252 (2002) (concluding that a prosecutor need not express intent to rely on future dangerousness; logical inferences may be drawn); Shafer v. South Carolina, 532 U.S. 36 (2001) (amended South Carolina law still runs afoul of Simmons).

12

530 U.S. 156 (2000).

13

North Carolina v. Pearce, 395 U.S. 711 (1969). Pearce was held not to be retroactive in Michigan v. Payne, 412 U.S. 47 (1973). When a state provides a two-tier court system in which the accused may have an expeditious and somewhat informal trial in an inferior court with an absolute right to trial de novo in a court of general criminal jurisdiction if convicted, the second court is not bound by the rule in Pearce, because the potential for vindictiveness and inclination to deter is not present. Colten v. Kentucky, 407 U.S. 104 (1972). But see Blackledge v. Perry, 417 U.S. 21 (1974).

14

An intervening conviction on other charges for acts committed prior to the first sentencing may justify imposition of an increased sentence following a second trial. Wasman v. United States, 468 U.S. 559 (1984).

15

Chaffin v. Stynchcombe, 412 U.S. 17 (1973). The Court concluded that the possibility of vindictiveness was so low because normally the jury would not know of the result of the prior trial or the sentence imposed, nor would it feel either the personal or the institutional interests of judges leading to efforts to discourage the seeking of new trials. The presumption that an increased, judge-imposed second sentence represents vindictiveness is also inapplicable if the second trial came about because the trial judge herself concluded that a retrial was necessary due to prosecutorial misconduct before the jury in the first trial. Texas v. McCullough, 475 U.S. 134 (1986).

16

Alabama v. Smith, 490 U.S. 794 (1989).