POLS455-Chapter 15

________________ sentences are served separately, one after another.

Consecutive

The judge is permitted to hand down a fixed sentence that cannot later be altered by a parole board. _______________________ has the effect of treating all offenders similarly.

Determinate sentencing

A three-drug lethal-injection protocol does not violate the _________________ of cruel and unusual punishment.

Eighth Amendment's prohibition

The defendant enjoys the constitutional right, during sentencing, that conforms to the _______________ against cruel and unusual punishment

Eighth Amendment's proscription

____________________ without parole for juvenile homicide offenders is cruel and unusual punishment, in violation of the Eighth Amendment.

Life in prison

In determining whether a decision of constitutional magnitude should be retroactive, the court consider (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." This has come to be known as the:

Linkletter-Stovall test.

In Ring v. Arizona, 122 S.Ct. 2428 (2002), the Supreme Court held that allowing a sentencing judge, without a jury, to find aggravating circumstances necessary for imposition of the death penalty violated the:

Sixth Amendment's jury trial provision.

The Court decided that only those appellate decisions that are dictated by precedent should be retroactive; that is, new rules should not be retroactive, unless one of two exceptions apply. Why such a strange rule?

The Supreme Court has interpreted habeas corpus as deterring state courts from misapplying federal case law existing at the time. A new rule could have no deterrent effect.

A habeas corpus petition must be limited to:

a constitutional claim

Kuhlmann v. Wilson, the Court held that successive petitions raising the same issues must be supplemented with a "colorable showing of factual innocence" (in other words:

a fairly clear indication that the petitioner is possibly innocent).

The court has held that when considering a habeas corpus petition, it is the jury's responsibility, not the court's, to decide what conclusions can be drawn from the evidence at trial. In other words:

a federal court cannot overturn a trial court verdict simply because it disagrees with it.

In the states that have not abolished the death penalty, determining whether death should be imposed is now frequently in the hands of:

a jury

It has been held by the courts that a mentally ill individual can be held in custody, such as in a mental institution, for:

a longer term than would otherwise be imposed for the crime charged.

A nonconstitutional claim that does not allege that a fundamental defect took place at trial will not succeed. The ruling is the reason why nonconstitutional claims rarely succeed undr habeas corpus review. The ones that do succeed must argue that:

a serious miscarriage of justice took place at trial

The current standard for determining whether habeas review should be granted is known as the:

actual innocence standard

Federal sentencing guidelines are:

advisory, not mandatory.

In the typical appeal, the defendant seeks to correct a decision by the lower court that he or she perceives to be in error. In such an instance, the appellate court will either:

affirm or reverse the lower court's decision.

In very limited circumstances, a defendant may file an interlocutory appeal—

an appeal filed prior to adjudication

A possible sentence may result in, probation or:

another method of supervised release

Only when a trial judge's decision impinges on ________________ will a third-party appeal succeed.

another person's rights

An ____________ is a process in which a defendant who is found guilty can challenge his or her conviction.

appeal

If the accused is found guilty, they can ________ their conviction.

appeal

The defendant, during sentencing, must be advised of his or her right to:

appeal

Considering postadjudication appeals, Nearly anything from the trial (as recorded in the transcripts) that the defense perceives to be in error can be:

appealed

The Court held that the Constitution requires effective counsel for a nonindigent defendant in his or her:

appeals of right

The Court has said that there is no right to self-representation at the:

appellate stage

Even age, family ties, employment status, and other demographic factors can come into play when determining the:

appropriate sentence

Proposition 8, adopted by California voters in 1982, provides that "the victim of any crime, or the next kin of the victim, . . . has the right to:

attend all sentencing proceedings [and] to reasonably express their views concerning the crime, the person responsible, and the need for restitution."

The AEDP provides that if a prisoner defaults and fails to submit a petition within a year, then review will only be granted when his or her failure to file a petition is "(1) the result of State action in violation of the Constitution or laws of the United States"; (2) "the result of the Supreme Court's recognition of a new Federal right that is made retroactively applicable"; or :

based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction review"

Most state statutes concerning the death penalty call for, in essence, two proceedings. In legal terms, this is called a:

bifurcated trial.

If the court decides to issue the writ of habeas corpus, the petitioner is:

brought before the court so the constitutionality of his or her confinement can be reviewed.

The Supreme Court has also held that a state ___________ prohibit prisoners from helping each other prepare and submit habeas corpus petitions

cannot

The execution of offenders who committed their ___________________ while under the age of 18 violates the Eighth Amendment.

capital crime

The most serious punishment that can be imposed is:

capital punishment, or the death penalty.

The death penalty cannot be imposed on a mere accomplice, unless there is:

clear finding that the accomplice killed, attempted to kill, or intended to kill.

Habeas corpus is known as a ________________ and is a constitutional right.

collateral attack

With a ___________ sentence, the defendant serves time for both crimes at once.

concurrent

Whether an error at trial is considered "harmless" depends, in part, on whether the error is:

constitutional or not

The first change to habeas corpus procedure resulting from the AEDPA is that review is permitted only when the state-level decision (1) resulted in a decision that was :

contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States

Requiring habeas petitioners to exhaust state-level remedies ensures that the states have the opportunity to:

correct federal constitutional violations

The defendant has the right to have ___________ present at the sentencing hearing to argue on his or her behalf.

counsel

A life sentence without the possibility of parole for a first-time, nonviolent drug offender does not constitute:

cruel and unusual punishment.

In a bifurcated trial, during the first proceeding, the defendant's guilt is ______________, similar to a trial for a noncapital offense.

determined

The defendant's possible threat to the community and his or her degree of remorse for committing the crime may be factors in:

determining the appropriate sentence

If habeas review would result in a new rule, then review is impermissible. This means the claim must be:

dictated by precedent

At both the state and federal levels, a convicted criminal is usually granted at least one ____________ (also known as an appeal of right).

direct appeal

Sentencing guidelines provide ____________ to the judge in determining the appropriate sentence.

direction

The Supreme Court has held that counsel is not constitutionally guaranteed in:

discretionary appeals

The AEDPA states that a claim presented in a second or successive habeas corpus application shall be:

dismissed

Appeals by the prosecution are rare due to the protection against:

double jeopardy

The Supreme Court has required that counsel be provided to indigent defendants on appeal as a matter of:

either equal protection or due process

Any ________________ that increases the mandatory minimum punishment must be submitted to a jury and proven beyond a reasonable doubt.

element of a crime

During the appeals process the government must:

ensure that the defendant has access to trial transcripts; the right to counsel; and the right to be free from government retaliation for a successful appeal.

Another objective of an appeal may be a trial de novo in which he or she is:

essentially requesting a new, independent trial at the appellate level.

A federal statute, 28 U.S.C. Section 2254(b), states that habeas corpus is not available to state prisoners "unless it appears that the applicant has:

exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner."

Filing an appeal is not the only avenue of redress for a person who is wrongfully convicted—the convicted person may also file a habeas corpus with the ___________ courts.

federal

Compared to interlocutory appeals, appeals filed after adjudication are subject to:

few restrictions

Before the defendant is afforded the rights that the government must provide during the appeals process, he or she must:

file a notice of an appeal

In the case of petitions from state prisoners, a federal court will not issue a writ of habeas corpus unless it:

first determines that the confinement violates federal law.

The death penalty is most commonly handed down for:

first-degree, premeditated murder.

Even though an appeal of one's conviction is not constitutionally required, the Supreme Court has held, on a number of occasions, that when an appeal is permissible, the government must:

follow certain procedures

Despite the time- and resource-saving benefits of limiting interlocutory appeals, the restrictions on filing such appeals can have serious consequences for defendants. Many defendants who are found guilty on serious charges:

go to prison and are forced to pursue their appeals from there

Under California's "three strikes" law, if a person who has two "strikeable" felonies on his or her record commits a third felony of any type, he or she will:

go to prison for life.

Most jurisdictions have what is known as the "______________" for a criminal offense. Usually, this is an unwritten, informal agreement between members of a courtroom work group (the judge, defense attorney, and prosecutor) as to what sentence a typical case merits.

going rate

The judge may impose a sentence and then suspend it, pending:

good behavior on the part of the defendant.

In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that a sentence of death for the crime of rape against an adult woman was:

grossly disproportionate and in violation of the Eighth and Fourteenth Amendments

If the accused's appeal fails, the U.S. Constitution provides the right to ______________ , which is a method of challenging the constitutionality of one's confinement.

habeas corpus

The Supreme Court held that a person can appeal a court order, such as a subpoena, but only if he or she:

has been found in contempt of court for failing to abide by that order

The Court has permitted successive habeas corpus petitions in which the same issues were raised. To do so, though, the petitioner must show that:

he or she was not given a "full or fair" hearing on the petition the first time around or that there has been "an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application."

In any case, the type of sentence may depend on the judge's own goals in choosing a sentence— that is:

his or her view as to the purposes of sentencing.

An interlocutory appeal will be permitted only if it is an issue that is:

important enough to determine the outcome, but is not directly related to the merits of the case

At the federal level, 18 U.S.C. Section 3731 allows an:

interlocutory appeal by the prosecution of a district court's decision to suppress or exclude evidence from trial.

In some situations, such as a ruling on a motion to suppress evidence, a decision by the court may be appealed by the defense during the trial. These types of appeals are called:

interlocutory appeals

A convicted felon will rarely succeed in obtaining a trial de novo in an appellate court because it is the primary duty of an appellate court to:

interpret the law, not the facts.

Second, a "new rule" will not be retroactive to other cases pending review unless it:

is "implicit in the concept of ordered liberty."

The first step to a petition for habeas corpus is, the accused individual petitions one of the federal district courts and asks the court to:

issue a writ of habeas corpus.

In regards to habeas corpus appeals for capital crimes, the Court held that in order to be granted a habeas review, an individual convicted of a capital crime must show that:

it is more likely than not that no reasonable juror would have convicted [the petitioner]

The Court held that a new rule should not be retroactive unless:

it places certain types of private individual conduct "beyond the power of the criminal lawmaking authority to proscribe."

Two reasons for not allowing retroactivity to be applied to final judgements are because:

it would open up a proverbial can of worms and habeas corps is still an option.

If a federal court sees fit to grant a habeas petition before a prisoner has exhausted all available state-level appeals, that is:

its prerogative

Neither the ________________ can act in a retaliatory fashion when the defendant decides to appeal.

judge nor the prosecutor

The importance of a bifurcated trial is that it allows a ________________, not just a judge, to determine whether capital punishment is appropriate.

jury of the defendant's peers

Habeas corpus decisions are ________________ made retroactive than appeals decisions.

less often

In regards to restrictions in how many times one can appeal, appeals of right are _____________

limited

A habeas corpus petition can engage in factfinding under certain:

limited circumstances

Restrictions on habeas corpus:

limited the types of claims that can be received, time frame, and a claimant must exhaust all other state remedies available.

It is important to understand that postadjudication appeals are almost ____________________ in terms of their possible substance.

limitless

Appeals are generally governed by the final judgment rule, which generally:

limits appeals until the court hands down its final judgment as to the defendant's guilt.

Determinate sentencing has the effect of ensuring that criminals will be incarcerated for:

longer periods of time than may result under indeterminate sentencing.

Stays are usually granted only if the convict poses a:

low flight risk

When an appeal is filed, an appellate court, such as one of the federal circuit courts of appeal, examines a:

lower court's decision in order to determine whether the proper procedure was followed, or the law was correctly applied.

The AEDPA prohibits a habeas court from holding hearings to determine questions of fact unless the petitioner can:

make a showing of why such a review is necessary

"Three strikes" laws are examples of _________________

mandatory sentencing.

Indeterminate sentencing gives the judge the authority to set the sentence. This form of sentencing empowers the judge to set the:

maximum sentence—that is, up to what the legislature will allow—or the minimum sentence for the offender to serve in prison.

Trials de novo are rare. Further, they are usually limited to appeals of decisions arising from:

misdemeanor courts of limited jurisdiction

A harmless error is a:

mistake at the trial level that has little practical consequence in terms of deciding whether the defendant is guilty or innocent

An analysis test of determining whether violations where constitutional or not may only be necessary when considering:

modest violations

The Court held that retroactivity depends on the ________________ of the appeal in question.

nature and timing

Although appealing convictions is an important part of the criminal process, the Supreme Court has:

never held that appeals, in general, are constitutionally required.

Juvenile offenders cannot be sentenced to life in prison for _________________.

nonhomicide offenses.

Whereas a jury must take aggravating and mitigating factors into consideration when determining whether a death sentence is appropriate, it is ______________ for a judge to do so.

not appropriate

Whether the death penalty is a permissible sentence for lesser offenses than first-degree/premeditated murder is:

not as certain.

The criminal process typically ends when the defendant is found __________ and is released.

not guilty

With a discretionary appeal, the appellate court is ____________ to hear such an appeal.

not obligated

For a select few convicts, the judge will issue a stay, which means the convicted individual will:

not serve time before the appeal is heard.

With a direct appeal, the appellate court is ____________ to hear such an appeal.

obligated

AEDPA imposes strict filing deadlines for habeas corpus petitions. Namely, most habeas corpus petitions must be filed within:

one year from the date of the final statelevel appellate judgment.

During intermediate sentencing a _______________ usually ends up deciding the actual amount of time the offender will spend in prison.

parole board

The defendant has the right to ask the sentencing judge to ignore _______________ that were obtained in violation of the right to counsel.

past convictions

State determinate sentencing laws violate the Sixth Amendment right to jury trial when they:

permit judges to impose enhanced sentences based on facts not found by a jury or admitted to by the defendant.

The courts have decided that the harmless error exception that applies in appeals also applies in:

petition for habeas corpus

Given that the Supreme Court hears a limited number of cases each term, it is unlikely that it will issue a writ. This leaves the defendant with the option of:

petitioning the federal district court

If the accused is found guilty, the accused must be sentenced, which is usually accomplished in a _________________.

posttrial hearing.

A fact, other than prior conviction, that increases a sentence to the maximum permitted by statute, must be:

presented to a jury and proven beyond a reasonable doubt.

When sentencing is carried out in a separate hearing, the judge will usually request a ____________________ prior to the hearing. This provides the judge with information concerning the defendant's pretrial record, financial characteristics, family status, employment status, and other factors that can be relevant in deciding the appropriate sentence.

presentence report

Sentencing guidelines that must be strictly followed are known as :

presumptive guidelines.

The defense can file an appeal at one of two stages:

prior to adjudication—that is, prior to the reading of the verdict; or following adjudication.

Since habeas corpus is purely discretionary, the Supreme Court has held that no right to counsel exists, unless, of course, the:

prisoner can afford representation

If a prisoner accidentally fails to raise a claim during the first habeas corpus petition, it will:

probably not be permitted the second time.

The presentence report is usually completed by a:

probation officer retained by the court.

Most appeals are filed by the defense, but in limited circumstances, the ____________________ can appeal a trial court's decision.

prosecution or a third party

Other than the defense appealing a decision, the ________________ can also make one in special circumstances.

prosecutor

In cases where the constitutional error was so serious as to require automatic reversal of the defendant's conviction, the prosecution is not required to:

prove beyond a reasonable doubt that the error is harmless.

The AEDPA further restricts filing successive petitions that:

raise different claims

If appellate courts, during habeas corpus proceedings, were permitted to be fact finders, like trial courts, then their decisions would:

raise double-jeopardy problems

The Court held that when a person is resentenced after receiving habeas relief, a subsequent habeas claim is not considered successive. The key limitation is that the second claim must:

raise new issues

Most convicted criminals are considered flight risks, and therefore stays of imprisonment are:

rarely granted

the defendant may only be subjected to a _________________ for his or her crime.

reasonable punishment

Sentences that fall within the federal sentencing guidelines are presumptively:

reasonable.

Sentencing guidelines promote consistency in sentencing by:

recommending certain terms of imprisonment for a certain type of offender.

The death penalty can be imposed in the absence of intent to kill if the defendant substantially participated in a felony likely to:

result in a loss of life.

In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court expanded Coker to hold that execution may not be imposed in cases of child rape that do not:

result in the murder of the victim.

In Griffith v. Kentucky, 479 U.S. 314 (1987), the Supreme Court held that any "new rule" it announces (one that is not based entirely on precedent, but sets a new standard for deciding similar cases) should be applied ____________________ to all other cases pending review at the time.

retroactively

After an appeal, the court may remand the case for further proceedings, consistent with its opinion. Remanding is:

sending back

Usually, if the seriousness of the offense and the offender's background characteristics are known, one can predict with a fair degree of accuracy what:

sentence will be imposed.

After a conviction at trial, the defendant is ______________.

sentenced.

The double-jeopardy provision of the Fifth Amendment applies during:

sentencing

If the crime is a felony, sentencing usually occurs at a ___________________.

separate posttrial hearing.

As a sentence, the judge may require the defendant to pay a fine or, in more extreme cases, to:

serve a term in prison.

While appeals are pending, defendants usually begin to:

serve their sentences

Discretionary appeals can be filed __________________, provided they are not redundant

several times

Sentencing can be affected by the number of separate crimes growing out of a:

single criminal act.

AEDPA imposes even more strict filing deadlines for habeas corpus petitions dealing with capital offenses. It requires that a death row petition be filed within:

six months from the final state court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking review

The U.S. Sentencing Commission was created in 1984 to attempt to:

solve problems with sentencing in the federal courts.

Sentencing guidelines can be voluntary or involuntary, depending on:

state or federal law.

Before habeas corpus becomes an option, a convicted criminal typically must exhaust all available:

state-level appeals

Mandatory sentencing is a form of determinate sentencing but differs insofar as it:

takes discretion away from the judge.

The jury must take into account aggravating and mitigating circumstances, however, if they are later proven to be invalid:

the 8th Amendment will not be violated if the death sentence is imposed.

The execution of someone who is insane violates:

the Eighth Amendment.

Assume, for example, that a defendant appeals his guilty conviction on the grounds that he was denied counsel at trial. Assume further that the defendant's appeal has merit. If he was sentenced to prison following trial, he will remain there until:

the appeal is heard, if ever.

A successive petition that raises different issues from the previous one should be dismissed if:

the applicant has . . . on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ

If a defendant is successful in his ability to appeal, it may seem fair to allow other defendants with similar circumstances the ability to do so as well, but:

the burden on the court system could be staggering

The Court has held, that federal prisoners have a constitutional right of access to:

the courts

It is constitutionally permissible for the federal government to use civil commitment to keep a "sexually dangerous person," under the Adam Walsh Child Protection and Safety Act, confined beyond:

the date of scheduled release.

Although the Constitution provides that the "privilege of the Writ of Habeas Corpus shall not be suspended," this has been interpreted to mean that a defendant can submit habeas petitions, not that:

the defendant will necessarily get his or her day in court.

If the appellate court reviews a lower court's decision to not exclude evidence and decides that the lower court's decision should be reversed, this only means:

the evidence should have been excluded, not that the defendant should be acquitted.

Retroactivity is —

the extent to which a decision should be applied to prior defendants in similar predicaments

During a habeas corpus proceeding, an appellate court cannot decide issues of fact. Instead, it must focus on whether:

the law was correctly applied at the trial court level

It is unconstitutional to impose death if a person participates in a felony that results in murder without considering:

the participant's level of intent.

Third-party appeals are even more limited because decisions by the trial judge usually apply only to:

the parties to the case

Actual innocence standard: When a prisoner has failed to file a habeas petition in a timely manner, he or she may still succeed in doing so provided that:

the petition sets forth sufficient facts as to his or her actual innocence.

A habeas court cannot engage in independent fact-finding if the petitioner deliberately bypasses state-level appellate mechanisms. In other words:

the petitioner must exhaust state-level remedies before fact-finding can take place at a habeas proceeding.

Sentencing can be influenced by the defendant's degree of cooperation with:

the police.

The most common basis for appeal by the prosecution, and many of the Supreme Court cases came before the Court because:

the prosecution disagreed with a trial judge's decision to exclude or suppress evidence.

With the possible exception of misdemeanor sentencing, which may take place out of the presence of the defendant, the defendant has:

the right to be present during sentencing.

Individuals charged with misdemeanors are usually tried and sentenced in:

the same hearing.

The Constitution does not permit defendants facing the death penalty to present new evidence during:

the sentencing phase.

In 1976, the Court reinstated the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976), holding that death is an acceptable sentence, provided:

the sentencing process is reasonable.

Determining the appropriate sentence almost always involves considering:

the seriousness of the offense and the offender's prior record.

A habeas corpus petition typically must be filed within a certain specified time period after:

the trial or sentencing hearing

Why would the permissibility of hearsay evidence be considered a non-constitutional error?

there is no constitutional prohibition against hearsay evidence in a courtroom

The defendant who pleads guilty may receive a different sentence than the defendant who is found guilty in a trial. A guilty plea suggests that the defendant is willing to admit what he or she did and, as such, should be:

treated more leniently.

The time needed to complete the presentence report is the main reason for the time lapse between:

trial and sentencing.

The Court has held that an indigent habeas corpus petitioner is entitled to a free transcript of his or her:

trial to assist in preparing the appropriate paperwork

The Court held that "upping the ante", by increasing the charge against a defendant who was convicted but appealed to a higher court for a trial de novo, simply because the defendant had exercised his right to appeal, was:

unconstitutional

Mandatory death penalty laws—that is, those that do not take aggravating and mitigating circumstances into account—are:

unconstitutional.

If, for instance, a defendant is convicted of killing another person with a handgun, he or she may be sentenced for the killing as well as for:

unlawful possession of a handgun, if the law permits the latter.

The first change to habeas corpus procedure resulting from the AEDPA is that review is permitted only when the state-level decision (2) resulted in a decision that was based on an:

unreasonable determination of the facts in light of the evidence presented in the State court proceeding

The Supreme Court has decided that testimony in the form of a __________________ is admissible.

victim impact statement

If a judge hands down a defendant's sentences in two trials, one in the first trial and another in the remanded trial(in case of an appeal), and in the second trial increased the sentence, the increase would probably be considered:

vindictive

The Constitution forbids the use of ___________________ during a capital trial's penalty phase.

visible shackles

In a bifurcated trial, during the second proceeding, the jury sits down and determines:

whether the death penalty is appropriate.