Courts Quiz 3

Santobello v NY:

o Santobello charged with two felony counts, pled guilty to lesser-included offense on promise prosecutor would NOT make sentence recommendation at plea bargain hearing. § However, hearing didn't occur for several months. New prosecutor had replaced the old one. New prosecutor recommended maximum sentence, which was imposed. § Santobello appealed. § USSC overturned conviction and sentence, since promise had been made by prosecution and second prosecutor was "honor-bound" to observe earlier promise.

Thompson v OK:

In noting the uniform ban among all relevant state statutes against the execution of one under the age of 16, the Court explained that such an act would violate the "evolving standards of decency that mark the progress of a maturing society." The case was reversed and remanded.

Theories of Sentencing

Retribution Incapacitation Rehabilitation Restorative Justice Deterrence Reintegration

What is an Alford plea?

-NC v Alford. -This is what, in Mass, a CWOF would be considered. -Admitting to something, admitting to sufficient facts, not saying guilty. -If you want to get the CWOF plea done, have to say they agree with all of the facts. If they say they don't agree, the plea is dead in the water. -Judges might let you go talk to your client or give you another date, but plea has to be voluntary.

Implicit plea bargaining:

- Agreement of a guilty plea for a specific offense, which carries a conventional punishment. -This "going rate" is usually less than the maximum sentence that could be imposed. "Going rate" is the local view of appropriate sentence of punishment for particular offense, the defendant's prior record, and other factors. - Prosecutor and defense agree as far as the DISPOSITION. May argue sentence differently. Ex: Agree to a CWOF, but defense wants 6 month CWOF and prosecutor wants year CWOF. - Juge makes ultimate decision. - Why people think plea bargaining is discriminatory against gender, race, socioeconomic, etc... They look at age, record, etc... in making time decision.

Atkins v Virginia: 2003:

-Can't execute individuals who are developmentally disabled.

Writ of certiorari:

A writ of certiorari is issued by a higher court directing a lower court to prepare the record of a case and send it to the higher court for review •Writs of certiorari, especially from those on death row, must contain compelling arguments in order for the U.S. Supreme Court to grant them •Most writs of certiorari from those sentenced to death are denied

Ricketts v Adamson:

Adamson was one of several codefendants charged with first-degree murder. · Before conviction, Adamson entered into plea agreement with prosecutors to testify against his codefendants. · Later, at trial of codefendants, Adamson refused to testify. · Prosecutors appealed Adamson's conviction and sentence, AZ SC overturned conviction. o New first-degree murder charged filed against Adamson, later convicted. · Adamson appealed to USSC on right to double jeopardy. USSC upheld second conviction, saying his breach of original plea agreement removed double jeopardy bar.

Current state of the death penalty in the US:

After Gregg: -In January of 2020, 2600 people were on death row. 52 were women. -In 2019, 22 executions occurred. Most common form of death penalty is lethal injection. -Some other states use other things. Some states who previously had death penalty and then repealed it, didn't apply retroactively. -Connecticut, for example. -People sentenced to death penalty, but state no longer does death penalty.

Aggravating and mitigating circumstances in death penalty cases:

Aggravating circumstances: Prosecution does these. Calls victim's family or child, medical examiner (if atrocious/heinous crime), police. Aggravating circumstances INTENSIFY punishment. - Murder for hire, murder of a police officer, involving torture, during commission of another crime, etc... Mitigating witnesses: After prosecution calls aggravating witnesses, defense calls mitigating witnesses. Supposed to lessen the punishment. Show how person never got help, suffered their own abuse, etc... - Factors about a crime that may lessen the severity of sentence imposed by the judge. Cooperating with police to apprehend others involved, youthfulness or old age of defendant, mental instability, and having no prior record are considered mitigating circumstances. Have to have aggravating and mitigating circumstances in death penalty cases. If you don't, its unconstitutional.

Reintegration

Along the lines of rehabilitation but after incarceration Related to utilitarian ideals of punishment and the prevention of future crime is the notion of reintegration Reintegration involves assisting criminals to become readjusted so that they can fit back into their communities and society Many programs today focus on helping those who have been incarcerated to readjust to live outside of prison Getting people readjusted into jobs, neighborhoods, families, drivers license back, health insurance back, etc Some sort of placement or person in assisting them getting those things back in life to transition outside of jail Compounded by stereotypes and stigma - Getting a job is very hard

Retribution

An eye for an eye or just deserts What does the offender deserve as a result of their criminal behavior? •The earliest forms of punishment embodied retribution or the law of lex talionis or "an eye for an eye, a tooth for a tooth" •These notions represent the functional idea of retribution; they also imply that there should be proportionality in punishment •The goals of punishment under a retributive ideal are justified because the offender has committed a wrongful act What you did to me, I am going to do to you Proportionality in punishments - Won't take into account someone's specific circumstances - Just looks at the crime and punished based on that - Arguably inflicting punishment for the sake of justice - Some say you are inflicting punishment for the sake of it

Who helps an inmate with an appeal? Habeus corpus appeals

Another inmate usually. Johnson v Avery: - Johnson was a lifer and he assisted other inmates with habeas corpus, so the guards threw him in solitary. - the case went all the way up to the Supreme Court with the issue of whether inmates can assist one another with habeas corpus petitions? - SC ruled that states COULD NOT bar inmates from giving each other legal assistance UNLESS the prison itself had another plan for legal assistance (public defenders, law students, voluntary bar programs in that prison helping inmates). Lewis v Casey: - In Lewis, SC said it's a fundamental constitutional right of access. Prison authorities have to assist inmates in preparation of legal papers by providing adequate law libraries or adequate assistance from other programs (law students, pro bono, etc...)

Who is the Appellee and Appellant?

Appellant is the party who lost in the lower court and is appealing Appellee is the party who won in the lower court

Outcomes of Appeals

Appellate Court agrees that there was an error of law and either says - the error did not affect your case and therefore conviction is upheld - case goes back to the trial court and prosecutors decide whether to retry the defendant without the "bad evidence" Appeals court may also say that there is no error of law - you can then apply to the highest state court - if denied there, your state rights are exhausted and the next remedy would be the USSC

Charge-Reduction Bargaining:

Charge-reduction bargaining is an offer from the prosecutor to minimize the number and seriousness of charges against defendants in exchange for guilty pleas Charge Reduction: -Can get rid of charges, can reduce felony to misdemeanor, etc... -This is how prosecution encourages plea. -Both sides can negotiate this. -Defense attorney can initiate by saying they will plea to one if the other is dismissed. -Dismissals don't usually happen without prosecutor's agree. Prosecutor has to agree to dismiss.

Indigent Appeals/Counsel for appeals

Counsel for indigents are required to send notice of appeal Douglas v CA: - indigent defendants are entitled to counsel for their first appeal ONLY. - Does not apply to habeas corpus petitions. States have own statutes that can give these. - First appeals court in our situation is Mass Appeals Court. Ross v Moffitt: - states are not required to appoint attorneys for indigent defendants on second appeals. - In MA, SJC, you are not entitled to court appointed counsel. States can have their own statutes that require counsel to be appointed for indigents (providing more rights to citizens)

Sentencing disparities:

Disparity in sentencing refers to differences in incarceration rates or sentence lengths Gender disparity: More men are sentenced to incarceration than women. - Judges may be chivalrous toward female offenders - Females may be treated more leniently than males because primary caregivers Some disparities are warranted, others are not. - Usually, disparities on extralegal factors (race, sex, age) are unwarranted because the law doesn't allow judges to consider demographic characteristics. Racial, sex, and age disparities also exist. -This is when judges just impose sentences based on the offender as opposed to the crime or the factors of the crime. -With race and ethnicity, minorities are sentenced more harshly. -Largely attributable to socioeconomic status, population, etc... -Poor are disproportionately represented in the CJ system. More likely to be prosecuted for crimes that are subject to mandatory minimums. - Recent research has also revealed that ethnicity is also a predictor at the sentencing stage where ethnic minorities (Hispanics) are singled out for harsher treatment - Many researchers have also found that race and ethnicity interact with other variables such as sex and age to produce the harshest sentences for young, black and Hispanic males -Judges that Larsen goes before sentence people like them more harshly. Even in bail.

In MA, pre trial dispositions

Diversion: - Best solution - By statute - You ask pre-arraignment to divert the case - Even if a prosecutor objects, at the initial part where you ask, the judge can still do it. In the judge's discretion. - If it is diverted, the defendant will speak to a probation officer within 2 weeks of diversion and set up treatment, letters of apology, etc and then come back into court. Judge agrees, and the person has 90 days to complete it. - Never on their record. Never been arraigned, never been read charges, etc. - Only applies to 1st time offenders. - Prosecutor does not have to agree, judge does it by discretion. - Used to be restricted by age (18-21) Now the statute has changed and the judge can use discretion to have it apply to older people. - Certain offenses that are excludable: Firearms offense cannot be diverted, certain Assault and battery cannot be diverted. Pre Trial Probation (PTP): - Next best - You are arraigned, so charge is on record. - Not admitting to facts. - Continue with treatment, stay out of trouble, whatever the agreed upon terms of PTP are. - If you complete the terms, the case is on your record, but it is not considered a conviction. - Defense has to provide a memo, treatment (documentation or verification of treatment). - Prosecutor has to agree with defense for PTP to be allowed. - If the defendant screws up the PTP, case will just go back to trial list. Continued Without Finding (CWOF): - Next best. - Pre trial plea bargaining disposition. - Still good because defendant is saying that they admit to sufficiency of facts to find me guilty but I am not saying I am guilty. - Admission to sufficient facts - If defendant completes CWOF terms, the case is dismissed on their record. - Do it because it is not considered a conviction on your record if you complete the terms. Still on your record (you were arraigned), but not a conviction. - If you violate probation on CWOF, the consequences are more severe. - Prosecutor does NOT have to agree. - Might be for someone who has a small record or older record. Not going to be someone who has a horrible record, but you can get them for a little bit of a record. Nolo contendere are similar in nature to a CWOF. Guilty: Admit you did it, the facts, you don't argue any of the facts Not the best disposition.

Sentencing in Massachusetts:

Every case in superior court or district court where you are convicted, have right to appeal. -As indigent counsel, required to send notice of appeal. In Superior Court, when found guilty, have sentencing hearing date. -Allows probation to get back on information for a sentence for a defendant. Also allows defense lawyer to get all of good things person may or may not have done to argue those in sentencing. -Mitigating and aggravating factors are still used. -Federal still uses presentence investigative report for sentencing. -State courts don't. In district court, sentencing happens on the same day. In sentencing hearings, can have victim impact statements. Person can explain how crime impacted them. -During victim impact statements, defendant can't say anything. -Victim doesn't have to speak for victim impact statement. Can submit something in writing that the judge reads out, or the judge reads on their own. -Always allowed if the victim wants to do it, but they don't have to do it.

Presumptive or guidelines Sentencing

Fixed punishments for each criminal offense, graduated according to offense severity and one's criminal history. Punishments for different offenses are ranged according to months. Used to be mandatory, but then the USSC said that they were only to be a guide Largely used on the federal level - Used on the state level but not as common Get points for certain things - Point off for admitting guilt Criminal history has a number and the crime committed is a number - Go across the grid and arrive at the sentencing range Issue is that when they were mandatory, judges had no leeway - Couldn't take account extralegal factors - Came about to minimize incarceration times In 2005, they got shot down for being mandatory - US v Booker: The SC stated that guidelines were no longer mandatory, only advisory.

Determinate Sentencing

Fixed term - No minimum or maximum, just the time - 5 years for example After a certain amount of time (2/3) you can go to the parole board. No parole board discussion on release date. Still accumulate good time Wanted to limit disparity in sentencing - Not focusing on extralegal factors - Not super successful - We need more prisons, more guards if going to give everyone a fixed sentence. The only way for someone's sentence to be reduced in a determinant sentence was through good time. -Get time off. - Good time: An amount of time deducted from period of incarceration of convicted offender, calculated as so many days per month on the basis of good behavior while incarcerated. -In Massachusetts, get 2 days per month. -After 60 day sentence earn two, can earn two days per month after that.

Furman v Georgia:

In 60s, nationwide, happened more than happening today. -In 60s, a bunch of SC cases came down to slow down death penalty being allowed. -Not so much that death penalty itself was cruel and unusual, but the way it was being administered was cruel and unusual. Way death penalty was being carried out was unconstitutional, being applied in discriminatory manner. -Denied deterrent effect because saying it was arbitrarily being imposed. -In 1972, put stop to death penalty as punishment.

Habeas Corpus

Habeas corpus means literally produce the body A habeas corpus petition challenges three things: - The fact of confinement: Every event that led to the present circumstances of the appellant. - The length of confinement: Sentences too long or disproportionately harsh - The nature of confinement: Conditions of confinement often. Writ sent directly to the USSC saying you are wrongfully convicted - in order to limit petitions and frivolous claims, offenders have to put every issue in to 1 petition

The History of Sentencing

Historically, the theory would be to make an example of the defendant - Other people won't do the same thing. Not so effective, especially today. Or punishment seen as revenge on defendant. You did x to the victim, so now this happens to you. In 20th century, the focus changed on penalties and sentencing and actually became more toward the defendant. From the 90s up until today (may vary) return to tough on crime, more deterrence when sentences are imposed as opposed to rehabilitation and restorative justice Focus for sentences switches depending on what's going on in the particular time period. -Society and what's going on in the outside world impact this as well. -Grassroots organizations like MADD or SAD can lead to more serious prosecution of crimes. -Marijuana was decriminalized. Can see on local, state, or federal level that we shouldn't punish some things anymore. One question that remains is what is the proper reaction to a crime: -Punishment: -Depends on what side you're on what you ask for. -Judge is in the middle on sentencing. Supposed to take a look at everything and make a decision from there. -Certain judges are tough on certain crimes or certain defendants, however. -Ideally, the idea is more serious the crime, more serious the punishment.

Concurrent v consecutive:

If you have a multi-count complaint (two charges on a complaint) and you're sentenced, a judge can sentence you: Concurrently: Sentences run at the same time. -If guilty one year committed on both, run together concurrently. -Most are concurrent. Consecutively: Do sentence for one charge, then the sentence for the second -Very often, has to do with either actual straight committed sentences OR someone will do committed sentence on the first charge and then probation for the second. -Ex: First count, guilty one year committed. One second count, consecutive sentence of guilty two years probation "from and after". -More serious crimes, tend to run consecutively.

What are the four types of plea bargaining:

Implicit plea bargaining: Charge-reduction bargaining: Judicial plea bargaining Sentence recommendation bargaining

Incapacitation

Incarcerate them - Easiest way to have them not commit more crimes Philosophy of corrections espousing loss of freedom proportional to seriousness of offense. Belief that the function of punishment is to separate offenders from other society members and prevent them from committing additional criminal acts. Harshest of penalties - Lose housing, job, finances, family But if you are a danger to society, it is vital to protect society If we remove some individuals via incarceration, we will lower crime - Especially chronic offenders - Not 1st time offenders - Rarely (unless serious crime) do we incarcerate first time offenders - Dependent on crime Research has shown that it does not really lower crime - Costs a boat load of money to the state, city, town, etc - 40,000/year per inmate - Ability to predict who will reoffend is poor. Special statutes also exist for chronic offenders.

What are the three judicial sentencing options discussed in class?

Incarceration Probation Death Penalty

Types of Sentences

Indeterminate Sentencing Determinate Sentencing Presumptive or Guidelines Based Sentencing Mandatory Sentencing

Indeterminate Sentencing

Indeterminate sentencing is a sentence imposed by the judge that includes a minimum term of years and/or months and a maximum term Where the offender's early release from prison is determined by a parole board Thus, the maximum term may or may not be served by any particular offender, depending upon their institutional behavior and other factors Minimum and maximum - 3-5 years for the chemist in the drug lab scandal, for example. - Minimum is something you have to serve and then after that you go before a parole board If you get denied, you do the full time Argument behind this is that the lower end forces people to be good and behave so they can go before a parole board and they will let you out Indeterminate sentencing has been criticized for potential discrimination on race, gender, or socioeconomic status.

Incarceration:

Jail or prison sentence is an option in most criminal cases •US has one of the highest incarceration rates in the industrialized world •US has 5% of the world's population but 25% of the world's prison population. With inception of mandatory minimum statutes and truth-in-sentencing laws, inmates are also spending longer periods of time incarcerated.

Plea bargaining rules:

Juddge cannot participate in the plea. Everyone goes on record during a plea. Can take plea bargaining back if the decision is not what you wanted. Judge needs to ensure that defendant is knowingly and voluntarily taking the plea. With minors, parents are involved but they don't have the first or last say. -Minor gets delinquent or not delinquent (not guilty or not guilty) -When in courthouse, get to know the judges and what they're willing to do. -Figure out whether or not to offer a plea. -Court-appointed counsel knows the judges better and knows the environment better.

What is a colloqui?

Judge has to ensure defendant is voluntarily foregoing their rights Asks a particular set of questions (Name, age, education level) Whether a CWOF or a guilty, a colloqui is done! Inform the defendant what happens at trial and asks whether defendant understands that they are giving their rights up. - Actually converses with the defendant. Also tells them what the maximum penalty is. Judge may also ask the defendant if they understand the charges against them and to recite them. Defense attorney and defendant sign that collequi occurred. Do NOT have to tell defendant collateral consequences. - Except Broad immigration warning. Conviction or plea of guilty may result in deportation, denial of naturalization, restricting entrance to US. - If pleading guilty to sex offense: Requires the judge to inform defendant's that they may be subject to a sex offender registry. Does not mention any other consequences. Voting, driver's license, submit to DNA database, etc... are not included. Only thing collequi is designed to do is make sure you're pleading willingly, voluntarily, etc...

Judicial Plea Bargaining:

Judges make offers of sentences to defendants in open court in exchange for a guilty plea •These most often occur for cases involving petty offenses Informal Judge asks what defense attorney wants and what prosecutor wants. -Judge says what they're willing to do during chambers. -Not recorded made it illegal, so it doesn't happen anymore. However, judges can still push from the bench. -Judge will ask the Commonwealth if there's "anything they can do with it today". Try to push for plea. -Only on less serious charges. -If prosecutor said no, judge can't dismiss the case over their objection. Illegal. If you get a good judge and DA is paying attention that judge wants a plea, usually works somewhat okay.

Ring v AZ:

Juries, not judges, have to find imposition of death penalty.

Deterrence

Largely symbolic One direct intention of the get-tough movement is to mete out harsher penalties for offenders to set examples and deter others from crime Sentencing theory behind the death penalty Punishments are supposed to be swift, certain and severe in order for there to be a deterrent effect The wheels of justice move at a slow pace - Can we really deter if we cannot do swift punishment or justice Assumes offender is rational and weighed a cost benefit before committing a crime

Roper v Simmons:

Minimum age of death penalty is 18. If younger than 18, can't be sentenced to death. -Roper was 2005. Took several years Execution of minors was cruel and unusual punishment, violated 8th Amendment.

Restoration/Restorative Justice

More holistic approach to sentencing - Based on 1 on 1 - Offender and victim making one another whole - Also society and community or anyone who was hurt by the crime Aim of justice is that if everyone is involved (offender, victim, victim's family, etc) then the idea behind restorative justice is healing Has increased in the last decade Better crimes are suited for it - Not every crime - Most of the programs are geared towards first offenders and non violent offenders - Some exist for violent offenders Restorative circles - Everyone talks about the crime - Offender has to say why they did it and say their apologies face to face 24 states have it for homicide and rape. Allows victim to ask offender questions. Supposed to lead the victim to closure. Can take a long time - Years to do so Restoration believes that if the true aim is justice and promoting good in the future, then all parties must be involved in the punishment process

Rehabilitation

No CJ conversation without reform or rehabilitation coming into play •A high degree of cynicism is prevalent among jurisdictions, however, concerning just how well corrections in any form actually rehabilitates convicted offenders • Most prisons include various vocational, technical or educational programs for offenders who wish to take advantage of these rehabilitative services Talking about sending someone somewhere (drug addict --> program) - Also talking about past behaviors, attitudes, thought processes, etc The rehabilitation in sentencing came about largely from evidence-based policies that we now have more of. Someone, or group of people, do research and show that those who are given access to programs, education, etc... have better outcomes. Criticized largely because anyone knows that histories or involvement of dependency, has to want to reform - Difficult if the person doesn't want to do it or the treatment Can corrections really assist in rehabilitation? -Probation officers are overwhelmed. Very few are invested in their probationers and helping them. Also assumes we know why someone commits a crime Could go hand in hand with retribution or incapacitation

Other parole board/hearing characteristics:

No juveniles can be sentenced to life without parole After certain period of time goes by, you can go before the parole board again. Is there an expertise that these people have? - Larsen says it is more experience than a particular expertise Not guaranteed the right to an attorney in a parole board hearing. Have to hire someone. -Indigents not guaranteed counsel. -Attorneys help make more eloquent opening and closing argumets. No rules of evidence either Families and friends can go

Appeals process and death penalties: (Tsarnaev)

Once you're convicted and sentenced to death, there is an AUTOMATIC appeal. In Tsarnaev's case, one of the victims (the little boy who died) families didn't want death penalty because didn't want appeals process to keep bringing the case up. They were right. Tsarnaev appealed, federal appeals court overturned death portion of his sentence. Did so because of jury selection. Said that, how could anyone not have been influenced by pervasive publicity and media. Said the judge did not inquire enough about the jurors as to their opinion or what they heard, what pretrial publicity influenced them. -Goes to USSC, Tsarnaev loses. USSC reinstated death penalty. USSC said judge has wide discretion in determining what questions to ask a potential jury. -While appellate court may not have agreed with the questions the judge asked in this specific case, doesn't make it illegal.

One of the biggest criticisms of the death penalty is:

One of biggest criticisms for death penalty is wrongful convictions. -Wrongful convictions based on science where science has gotten exponentially better is part and parcel of the problem as to why death penalty is used less, due to increase in wrongful convictions and people being exonerated. Also, eyewitnesses. Historicaly, people thought eyewitnesses were best evidence to crime. However, studies are showing this isn't true. -Pre-instruction and post-instruction on eyewitness identification, racial bias, etc...

Base v Rees:

One of more recent challenges to death penalty was related to way it was being administered. 2008 case. Baze v Rees. -Four drug protocol with lethal injection. Death is supposed to be imminent, and it wasn't in this situation. -Took it to SC, said four drug protocol was violation of 8th Amendment against cruel and unusual punishment. -SC decided that it WAS NOT a violation. Did leave open the possibility that it COULD violate if better drugs were found.

Parole Board in Massachusetts:

Parole board in Massachusetts is a jumping spot for judges: -Appointed to parole board as prosecutors, go from there to become judges. -Mass parole board has 7 members. -At least one has to have a background in forensic psychology. -One has to be a defense attorney -Prisoners Legal Services gets to put one on. Appointed by the governor They then hold legitimate hearings. -Online now because of COVID -Parole board bombards parolee with questions. Hold hearings - Defendant sits with their lawyer if they have one and they bombard parolee with questions

Life without parole sentence:

Penalty imposed as maximum punishment in states that do not have death penalty; provides for permanent incarceration of offenders in prisons, without parole eligibility; early release may be attained through accumulation of good-time credits.

What is truth in sentencing?

Person actually served what the sentence was Creates overcrowding in prison Federal Crime Bill of 1994 - provided in part that money would be given to states that changed sentencing provisions in direction of harsher sanctions - offenders prior to TIS would serve 40-50% of their maximum sentences, but now TIS requires them to serve at least 85% Supposed to increase deterrence and decrease recidivism Crime specific in MA for parole eligibility - Public would then know and someone would serve what they are sentenced to

Sometimes judges will consider abnormal sentences for unique problems. What are some examples?

Pickpocketer: Allowed person to go free, but had to wear mittens every time out in public. -Mittens had to be a certain thickness. -Wouldn't pickpocket/wouldn't be able to 2012: Judge sentenced 32 year old woman to sentence of two days standing on street corner: Sign said "only an idiot would drive on the sidewalk to avoid a schoolbus" 2012: Colorado juvenile judge offered the mother a way to reduce the daughter's sentence. -Daughter and friend had befriended a toddler at a McDonald's, cut her hair off with scissors. -Judge said to the mother that they would reduce daughter's sentence if she cut her daughter's ponytail. Oklahoma, 17-year-old pled guilty to manslaughter. -As part of conditions of his sentence, had to graduate high school, graduate welding school, take drug, alcohol, and nicotine tests, wear drug and alcohol bracelet, take part in victim impact panels, and attend church for the next 10 years.

What happens for plea to occur?

Pleas are not easy. -Lawyer ensures that the defendant understands what they're doing. When someone pleas, fills out plea sheet. -Three columns. One for the defense, one for the prosecutor, one for the judge. -DON'T have to agree on this sheet. Prosecutor can offer one thing and defense another. -Disparate recommendation: Defense and prosecutor ask for different pleas, judge then decides. Can take prosecutor's, can take defense attorney's, or can make their own. If judge chooses the prosecutor's or makes their own which is more severe than defense, the defense can withdraw their plea and ask for trial date. -Judge might change by the trial date, which could be another advantage.

What are appeals?

Primarily used to correct a legal wrong, an error of law - Only get to appellate court if you're arguing something that happened during the trial - Only get to appeal if error of law. A secondary purpose of an appeal is to render judgment about one or more issues that will influence future cases Arguing that something happened during the trial process that should not have

Gregg v Georgia:

Prior to Gregg v Georgia, series of cases examined death penalty. How it was imposed, who imposed it, how administered. -Gregg ruled that death penalty was constitutional, NOT cruel and unusual, as long as imposed under careful and specific procedures. Careful and specific procedures: -Death penalty cases go in two stages: -Bifurcated proceeding: (1) Actual trial to determine guilt or not guilty. (2) If defendant is found guilty, another mini trial with regards to sentencing. Jury, same jury, decides whether or notperson gets death or gets life without parole. In second trial, both prosecution and defense put on witnesses again. -These witnesses don't testify to crime. They testify to aggravating or mitigating circumstances. - A sentencing hearing is a proceeding where evidence and testimony are presented both for and against the offender.

Probation conditions in Mass:

Probationers have contract: - When on probation, CANNOT commit other offenses. Part of contract. - Probationers also cannot: Travel, commit new offenses, must notify if changing address, can't make false statements, must get permission to leave commonwealth, must report within 48 hours if in custody. Bottom half of contract doesn't apply to everyone: -Alcohol or drug -Batterer program -Random urine for drug and alcohol testing -Mental health treatment -Stay away from named victims or particular places If you violate contract, there are consequences. Contract also lists all fees.

What is Nolle Prosequi?

Prosecutor files this when they decide not to prosecute. Commonwealth will not meet its burden, so they aren't going to prosecute. Handed to the judge and says we are not going to prosecute this case Judge must accept a nolle prosequi, it is solely in the hands of the prosecutor. More common now than the past Particularly if you have a serious case, prosecutor has to file nolle pros if they aren't going to be able to win. The judge won't want to dismiss.

Sentence Recommendation Bargaining:

Prosecutor proposes a specific sentence in exchange for a guilty plea Overt form of implicit plea bargaining In fact, judges must approve all plea bargain agreements in all jurisdictions Prosecutor says what they are willing to drop and what they want. -This is a take it or leave it. No wiggle room.

Beardon v. Georgia

SC stated that you can't revoke probation for the failure of an indigent defendant not being able to pay money. -Can't send someone to jail because they didn't pay a fine. -Automatic revocation is improper and violates defendant's rights under the 14th Amendment.

Coker v GA

Sentence of death for rape of an adult woman was cruel and unusual punishment.

What are three strike laws?

Similarly to habitual offenders, after 3rd offense whether violent or not, the penalty increases for individual Problem is that there is no distinction between violent and non-violent offenses Three-strikes-and you're- out legislation •Designed to prevent offenders from becoming recidivists; provides that persons who commit three or more serious felonies are in jeopardy of being incarcerated for life terms.

What are Habitual Offender Statutes?

Some states have them Habitual offender or persistent offender statutes are laws that proscribe increased even life sentences for those who are convicted of three or more felonies Habitual offenders are those that pose a greater risk to community - Suggest higher sentences off the bat Habitual traffic offender (in MA) exists. All jurisdictions define who is a habitual offender differently In MA Melissa's Law - Habitual offender and also a 3 strikes law - Specified violent felonies where it eliminates parole eligibility after 3 convictions - Murder, indecent assault and battery, assault and battery with a dangerous weapon, etc... - Have to serve 2/3 of the sentence after the 2nd strike and after the 3rd, you have to serve the entire sentence - If you got 2 life with paroles, you are no longer eligible for parole -Melissa's law doesn't target misdemeanors or nonviolent felonies. Only targeted at those who commit physically violent felonies or certain sex offenses.

What are the three forms of probation?

Straight probation: Person pled guilty, is put on a year of probation. Split sentence: On 11/4/2022 got guilty one year, 30 days to serve, balance suspended until 11/4/2023. In this one, get one year jail sentence, also on probation for one year. Going to serve 30 days in jail. When you get out, on probation for one year. Balance (12 months - one month) hangs over your head until the end of your probation. Straight suspended sentence: Your entire year of jail sentence is suspended. Sentenced to it, but not doing it. Hangs over your head as a consequence. Difference between these three: Penalty for violating: -Straight probation: Judge now has discretion, depending on how you violate, to revoke your probation and sentence you up to maximum sentence for crime. -Split sentence: Judge can only sentence you to remaining 11 months hanging over your head (you already did 30 in). -Suspended sentence: if you are sentenced to one year suspended sentence and violate, the judge can only revoke your probation and sentence you to the year. Can also get guilty one year committed. Jail for one year, serve time minus good time, get out. No probation.

The Death Penalty:

The death penalty is reserved only for those who have committed capital crimes, primarily first degree murder. Not without controversy. -24 states have it, 23 states don't. In the orange stages, governor imposed moratorium on the death penalthy. -Federal government and military still use and have the death penalty. The death penalty is arguably the biggest deterrent for people to commit crime. -Each state regulates the death penalty on their own. -They can also regulate what means they use. -Most states use lethal injection -Some states have firing squad as choice still. -At state level, can choose what types of death penalty are available and if they have it at all. -Usually for people who commit murder, capital crimes.

Probation:

The primary alternative to incarceration is probation A straight probation sentence does not entail confinement in jail or prison In the 2009 Bureau of Justice Statistics reports there were nearly 4.3 million persons on probation in the United States The report also shows that about 17 percent of probationers were incarcerated due to revocation of probation. Probation is a conditional freedom. It's not expected, it's not always the case. If someone is convicted and released into the community, they're released with conditions. -Allows defendant to keep their job, keep their ties with family, go to school. -However, still based on same factors in sentencing decision. -Someone will look back at someone's record to see if, in the past, they were able to complete probation. - Other conditions: Reporting drug and alcohol use, staying away from certain people, etc... Regardless of the conditions attached to a sentence of probation, all probationers are required to obey the law (not reoffend) and maintain contact through face-to-face visits with their probation officer. Other conditions: - Drug testing - Substance abuse treatment - Enrollment in educational programs

Massachusetts case outcomes and probation:

With diversion: You don't sign a contract. If you are diverted and you violate the diversion, the diversion may just be extended (aren't many severe consequences). Pretrial probation: DO sign a contract. -If you don't do what required to do on PTP or pick up new offense, case restored to the trial list. CWOF: Admit to sufficient facts based on facts of the police report, but aren't saying that you are guilty. -If you violate the probation there, you can keep your CWOF and extend the probation (they can add terms, extend time on end, etc..) OR depending on your violation, they can revoke your CWOF and enter a guilty. - Example: A&B, one year CWOF. You violate during that time. - You have right to two hearings when you violate probation. - If small violation, probation officer can withdraw the surrender. Can also ask that CWOF be extended. - If you violate CWOF, judge can also revoke CWOF and enter a guilty. Guilty: - Three forms of probation. Discussed in later question

Juries and death penalty cases:

With jury, death penalty means voir dire has to be more in depth. -Instructed on law by the judge. In death penalty case, you do have a jury. -Constitutional case says death HAS to be chosen by the jury. -Death penalty decision has to be unanimous.

Can prosecutors overcharge in order to obtain a plea?

YES Trespass, resisting arrest, disorderly conduct (acting a fool), assault and battery on a police officer Throw in 4 counts for example The prosecutor now holds the bargaining power In this case, the prosecutor agreed to dismiss counts 2&3 and the defendant pleads guilty to counts 1&4 Used to entice defendants to plead guilty Defense also has to look at the counts to say you are never going to prove these counts, let's dismiss them and the defendant will plead guilty to the other counts

Massachusetts: What happens if you violate probation?

You have a right to two hearings when you violate probation. First is a preliminary hearing: - At the time, whatever you did to violate, you're given notice what time to come into court, and the standard at this preliminary hearing is just probable cause to believe that you violated your probation. - Have bail argument of sorts. Probation officer can ask that you be held without bail or detained, OR just released. If it's a small violation, likely just release you and have you come back for second hearing. If more serious, could detain you pending your final surrender hearing. - Usually thirty days until next hearing. - Any time you sit can count toward ultimate sentence. Final surrender hearing: - Probation officer can withdraw the surrender: if not that serious, will give you time to get your act together. May not go forward on final surrender. Can withdraw the surrender. Can also ask that CWOF be extended. - If you don't get your act together, final surrender is a mini-trial. - Right to a lawyer, given a notice, if you have evidence at final surrender hearing, can present it as well. - No formal rules of evidence apply. Hearsay can be solicited. - Whether or not you violated probation is lowest standard. Preponderance of the evidence (51%)

Judicial instructions for accepting guilty pleas and rights waivers:

· Judges obligated to determine factual bases for guilty pleas, encourage frank discussion of facts in case, and facilitate further consideration of sentencing alternatives. · Judges in federal courts must observe Federal Rules of Criminal Procedure: Make sure defendants understand: § Nature of charge to which plea is offered § Maximum possible penalty provided by law § Mandatory minimum penalty provided by law § Effect of special supervised release term and special provisions for compensating victims § That defendant who doesn't have an attorney has the right to one, and if they can't afford one one will be appointed § That defendant has right to plead not guilty and withdraw guilty plea at any time § That defendant has right to trial by jury and right to assistance of counsel at trial § That defendant has right to confront and cross-examine prosecution witnesses § That defendant has right against self-incriminnation § That if guilty plea or nolo contendere is accepted, there will be no further trial § That there is factual basis for the plea § That plea is voluntarily given and that is isn't the result of force, threats, or coercion apart from plea agreement. § That judge may accept or reject plea agreement § That plea is accurate § If plea is result of prior discussion between prosecutors and defendants or their attorney

Victim-Offender Mediation Model:

• Meeting between criminal and person suffering loss or injury from criminal whereby third-party arbiter, such as a judge, attorney, or other neutral party decides what is best for all parties. •All parties must agree to decision of third-party arbiter.

Appeals process:

•All death sentences are automatically appealed The appellate process for any case, capital or otherwise, begins by filing an appeal with the most immediate appellate court above the trial court level - Notice of appeal: Formal document with court advising court that the sentence is to be appealed to higher court or appellate court. •Appellate courts may or may not decide to hear appeals from lower courts •Their powers in this regard are discretionary Incredibly long process. -Four months for appellant to file brief, four months for appellee to file their brief, three months to get date, a few months for decision to come down. Over a yearlong appeals process. Even if appellate court agrees that there was an error of law, goes back to original trial court, they decide whether or notto retry you or not without the errored evidence. -Prosecutor may not retry defendant because they already served maximum penalty. If you go up to appeals court and they don't think there was an error of law, you can apply to your state high court (in Mass, SJC). If SJC declines/denies you, your state appeals have been exhausted. Only next is USSC.

Judicial sentencing options:

•Because many jurisdictions have enacted increasingly tougher laws in the last three decades, including adopting determinate, guidelines-based, or mandatory sentencing schemes, for certain types of offenders and for certain criminal offenses, incarceration is not an option; it is a requirement. •In other words, in many jurisdictions, especially for serious and repeat offenders, judges do not have any discretion to decide between prison and probation; the offender must be sent to prison. Other than minimum-mandatory sentences, sentencing does fall squarely on the judge and their discretion. - They have the option to send the offender to prison or give them probation. - Sometimes this may depend on whether the convicted offender pleads guilty through some sort of plea agreement; in others, it is left to the judge to decide and may depend on their previous criminal history. -Take into account the nature and seriousness of the offense, recidivism, if the person is a danger to the public/society/victim, extralegal factors, age of the individual at the time they committed the offense, prior criminal record at time of offending, housing, mental health issues, addiction, etc...

Career criminals, chronic recidivists, and persistent felony offenders

•Career criminals •those offenders who make their living through crime. Usually, offenses occur over the lifetime of the offender. •Chronic recidivists •persons who continue to commit new crimes after being convicted of former offenses. •Persistent felony offenders •habitual offenders who commit felonies with a high recidivism rate.

Cons of plea bargaining:

•Defendants give up their constitutional right to a jury trial and to confront accusers •Plea bargaining leads to loss of judicial control of courtrooms - Even if judge gets ultimate decision, if judge goes over what defendant wants, they can take plea back. •Defendant ignorance of rights under the law -Sometimes, defendants plea case out instead of going to trial because penalty is known and guaranteed. -May take a plea just to have a known as opposed to the unknown. Aren't aware of secondary consequences. •Judicial revenge for not accepting plea: -If you take a case to trial, whatever the recommendation was before trial won't be the same. -When sentence is asked for after guilty finding, it will probably be way harsher than the original recommendation was. -Effectively get punished for taking a case to trial, if found guilty. •Circumvention of habitual offender statutes and other mandatory penalties - Avoiding stuff like three strikes law, mandatory minimums. Self-incrimination. -Saying you did it. -You have a fundamental right against self-incrimination. By plea bargaining, giving that up. •Sentence reductions for those undeserving •Concealing heinous aspects of crimes •Rubber stamping plea agreements •Gender and Racial/Ethnic bias •Invalidating the jury process •Hampers sentencing reform efforts •Bureaucratic Way more cons than pros, but plea bargaining continues to exist.

Shock probation or split sentencing:

•Designed to shock or scare convicted offenders, particularly those who have never served time in a prison or jail •Shock probation and split sentencing refer to planned sentences whereby judges order offenders imprisoned for statutory incarceration periods •After 30, 60, 90, or 120 days of incarceration, these offenders are taken out of jail or prison and resentenced to probation

North Carolina v Alford:

•Entering a plea agreement to avoid the death penalty is not coercive § Accused of first-degree murder, faced death penalty. Pled nolo contendere to second-degree, 30 years in prison. Contested sentence later, said he was coerced to avoid the death penalty. · USSC ruled against him. Said plea bargaining is not considered coercive when defendant chooses lengthy prison sentence to escape possible imposition of death penalty.

History of plea bargaining:

•Following the Civil War, plea bargaining became increasingly common •By the beginning of the 20th century, it was the dominant method of resolving criminal cases •Plea bargaining increased as a result of the increasing professionalism of the police and criminal court system

Benefits of plea bargaining for defendant?

•Ideally, defendants who wish to enter guilty pleas are in fact guilty •There is substantial evidence against them •Plea bargaining results in reduced charges and sentences for criminal defendants

Plea bargaining at federal level:

•In federal courts, the U.S. Sentencing Guidelines have operated to limit the negotiating parameters of prosecutors and defense counsel (Levine 2005). •Prior to the establishment of U.S. Sentencing Guidelines, federal prosecutors could tailor their plea agreements in ways that would maximize a defendant's acceptance of the plea agreement terms and encourage more guilty pleas. •When the federal sentencing guidelines were established, new rules were instituted requiring U.S. probation officers to include all relevant legal variables in presentence investigation reports (PSIs). •Prosecutors were prohibited from omitting these relevant variables. PSIs: •PSIs are reports filed by probation or parole officer containing background information, socioeconomic data, and demographic data relative to defendant. •Facts in the case are also included. •Used to influence the sentence imposed by the judge and by the parole board considering an inmate for early release.

McMann v Richardson (1970):

•Merely alleging you were coerced is insufficient for overturning conviction, you have to present evidence

When can plea bargaining occur?

•Plea bargaining can occur at any time •In some cases, plea bargains have been struck while a case is in progress or while a jury is deliberating

Plea bargaining bans:

•Plea bargaining has been banned in various U.S. jurisdictions, most notably in Alaska. •When Alaska announced that it was banning plea bargaining on a statewide basis in 1975, other jurisdictions were apprehensive. It is important to note that although plea bargaining in Alaska was officially banned, it did not disappear. o Gave prosecutors considerably greater charging powers. § Prosecutors in Alaska more careful to screen cases destined for trials. § Reduction in number of criminal prosecutions, as those that were once plea bargained were simply dropped. § Greater charge bargaining. •At the core of plea bargaining bans is the unfairness inherent in sentencing bargaining.

What is plea bargaining?

•Plea bargaining is a preconviction agreement or negotiated guilty plea between the government and defendant wherein the government offers some form of leniency, usually a lighter sentence, in exchange for guilty plea to lesser charges. •All plea bargain agreements are subject to judicial approval. - Determine if defendant is willing to waive due process rights. - Determine if there is a factual basis for the plea. •In the United States today, very few criminal cases are settled by jury trials - Large majority of cases, 85-90%, plea out. Victims have no say in the plea decision.

Bordenkircher v Hayes:

•Prosecution may use additional charges as leverage to obtain plea agreements •Must have probable cause to believe that defendant committed these additional crimes

Why do prosecutors plea bargain?

•Prosecutor has advantage in resolving cases without a trial •Plea bargain agreements are easiest way to get convictions for prosecutors

U.S. v. Benchimol (1985)

•Prosecutors are not obligated to enter into plea bargain agreements.

Pros of plea bargaining:

•Reduces the uncertainties and risks inherent in a trial •Case processing time is much faster and cheaper that if the case were to go to trial •Plea bargaining results in larger numbers of convictions (for prosecutors). Better stats. •Softens impact of rigid sentencing structures - Defendants may get benefit of leniency. •Reduces the costs of trials

What are the appeals decisions?

•Reversed and remanded - Decision by the appellate court to set aside or overturn the verdict of a lower trial court with instructions to the trial court to rehear the case with suggested modifications. •Affirm - To uphold the opinion or decision of lower trial court; usually an action by an appellate court. •Dissenting opinion - Any judicial opinion disavowing or attacking the decision of a collegial court.

Functions and goals of sentencing:

•Sentencing offenders serves the following functioning and aims: •Retribution/"just deserts" •Incapacitation/crime control •Rehabilitation •Restoration •Prevention/deterrence

Mandatory sentencing:

•The Obligatory imposition of a specified period of years and/or months for specific types of offenses •For instance, Michigan has a mandatory penalty of two years for using a gun during the commission of a felony •Under federal law there are over 60 mandatory minimums that cover over 100 offenses Mandatory sentences exist for crimes in school zones. Drug distribution in school zone, for example. Usually, judges will sentence to one day on distribution, and then get two years on and after for the mandatory school zone. Firearms have mandatory minimum. - In a car or outside is 18 months. Minimum mandatory sentences get NO good time.

Is plea bargaining coercive?

•There is no question that plea bargaining is coercive o Almost no offender wants to admit wrongdoing, so an offer to plead to reduced charges is most definitely coercive. However, judges concede that its an important trade-off between due process and crime control. •Some argue it invalidates due process and the adversary system •Even judges may think plea bargaining is coercive, but concede it is a suitable trade-off between due process and crime control It's always the client's choice whether or not they plea bargain. -Defense attorney tells where all the roads will lead. However, defendant ultimately chooses the road. -Defendant can't come back later and say they were coerced into pleading. Have to show specifically how. -Recording, signatures, and collequi set up a case against coercion. To the extent a prosecutor does make promises in a plea, they're obligated to fulfill them. -If defendant makes any promises to get a plea, the defendant has to follow through as well. -If defendant gets leniency in exchange for testimony, both sides have to hold up their sides to the bargain

Pre-sentence investigation report:

•a written summary of information usually written by probation officers about the convicted offender's background, and other relevant evidence about the crime and implications for all relevant parties, including victims. § Also includes defendant's version of the crime, investigating officer's version of the crime, defendant's reputation and attitude and activities and associates. •Defendant's/offender's sentencing memorandum •a document prepared by the convicted offender that describes the crime, why it was committed, and the attitudes and feelings of the offender concerning his/her involvement. Presentence Reports are more common on the federal level than they are at the state level Victim Impact Statements - Oral and/or written testimony concerning how the victims and their close relatives were affected by the offender's crime