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CHAPTER FOURTEEN
AFTER CONVICTION: Sentencing, Appeals, and Habeas Corpus
Learning Objectives
After studying this chapter, students should be able to:
1. Understand and appreciate how the rights of a defendant differ from those of a convicted
offender.
2. Understand how the need for both certainty and flexibility can affect how much
discretion judges are given when it comes to sentencing. Know the role of sentencing
4. Understand the Apprendi bright-line rule and its impact on sentences that are harsher than
the relevant guideline.
5. Know that there’s no constitutional right to appeal, but every jurisdiction has created a
statutory right to appeal. Understand why habeas corpus is a “collateral attack” and how
civil trials are used to determine whether convicts have been unlawfully detained.
Lesson Plan
I. Procedures after Conviction
Learning Objective 1: Understand how the rights of a defendant differ from those of a
convicted offender.
A. The defendant’s status changes to “offender.”
2. Offenders carry a presumption of guilt.
3. The government and defendants get one fair shot at justice.
B. Following conviction there is a strong presumption of guilt.
C. Three main procedures follow conviction:
2. Appeals
3. Habeas corpus, or collateral attack
II. Sentencing
Learning Objective 2: Understand how the need for both certainty and flexibility can affect how
much discretion judges are given when it comes to sentencing. Know the role of sentencing
guidelines and how departures from them depend on a crime’s seriousness and an offender’s criminal
history. Understand mandatory minimum sentencing laws and how they impact a judge’s sentence.
Learning Objective 3: Understand the proportionality principle, and know how it defines cruel
and unusual punishment under the Eighth Amendment.
Media Tool
“Abuse of Judicial Discretion”
http://www.constitution.org/abus/discretion/judicial/judicial_discretion.htm
o Article discussing the abuse of judicial discretion.
o Discussion: Discuss with students the abuses the author writes about in the
article. Ask students if they agree or disagree with the points the author makes.
Class Discussion/Activity
The issue of balancing certainty and flexibility in sentencing can be challenging.
Discuss how determinate and indeterminate sentencing can each address both
issues. Students can break up into groups to brainstorm ideas for finding a solution
that would address both. Bring students back together as a class and ask them how
difficult it was to try to accomplish the goal of dealing with both certainty and
flexibility in sentencing.
What If Scenario
What if your state were to implement an entirely determinate sentencing system? What
if judges had absolutely no discretion regarding sentences? Who would be the most
powerful person in the criminal justice system? Why might this be problematic?
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A. Sentencing has had two contrasting aims:
2. Indeterminate sentencing (tailoring punishment to suit the criminal) puts the power in the
hands of judges and parole boards.
B. The history of sentencing
1. The history of sentencing has seen the pendulum swing from fixed to indeterminate
sentencing.
(1) Corporal punishment became extinct.
(3) Statutes fixed prison terms for most felonies.
2. Modern sentencing began around 1870
a. Reformers argued prison were warehouses
3. 1970s saw a return to determinate sentencing
a. Prison uprisings portrayed rehabilitation as rhetoric.
(1) All crimes deserve some punishment to retain the deterrent potency of the
criminal law.
(3) Repeat career offenders require severe punishment to incapacitate them.
C. The division of sentencing authority
1. There’s a historical division of sentencing authority among legislature, courts, and
administrative agencies.
3. Judicial sentencing model
a. Judges prescribe sentencing within a range set by a statute.
4. Administrative sentencing model
a. Legislature and judge prescribe a wide range of allowable sentences for particular
crimes.
D. Sentencing guidelines and mandatory minimum sentences
See Assignments 1, 2, 3, & 5
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© 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part,
except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
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1. Adopted by the federal government and most states.
2. Respond to three demands of public and experts.
3. Sentencing guidelines
a. The guidelines weigh both the seriousness of the crime and the criminal history of
(1) They prescribe a nondiscretionary minimum amount of prison time.
4. Mandatory minimum sentences
(1) Supposed to satisfy three basic aims of criminal punishment: retribution,
incapacitation, and deterrence.
f. Several evaluations indicates mandatory minimum penalties don’t always achieve
their goals.
E. The Constitution and proportionality in sentencing
1. The proportionality principle
2. The proportionality principle and the sentence of death.
a. The sentence of death only fits the crime of murder.
a. SCOTUS is deeply divided.
1. Until 2000, the Court took a hands-off approach to criminal sentencing, leaving it to
judicial discretion.
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2. Apprendi v. New Jersey (2000) created a bright-line rule.
minimum sentence.
5. U.S. v. Booker:
6. Rita v. U.S.
7. Gall v. U.S.
a. Post-Booker
(1) District judge must consider the extent of any departure form guidelines and
(3) Courts of appeals must review all sentences under deferential abuse-of-
discretion standard.
G. Death sentence procedure rights
1. Capital punishment is different from all other punishments, which means death
a. The sentencing process has to allow judges and/or juries to consider mitigating
3. Statistics indicate that there’s a pronounced racial disparity in death sentences.
a. The Court has conceded these numbers may prove that race affects death
sentencing decisions, in general, but not enough to prove cruel and unusual
punishment in individual cases.
Media Tool
“Death Penalty Information Center”
http://www.deathpenaltyinfo.org/
o Website providing latest articles on the death penalty.
o Discussion: Have students read the latest articles on the website. Discuss
what the current issues are regarding the death penalty.
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Media Tool
“Argument Recap: Just What Does Apprendi Mean?”
http://www.scotusblog.com/2013/01/argument-recap-just-what-does-apprendi-
mean/
o Blog on the importance of the Apprendi decision.
o Discussion: After students have read the blog discuss the analysis. What
were they able to conclude from the information in the blog? Do they
agree with the author?
Class Discussion/Activity
Have students research the proportionality principle and discuss its importance in
the application of the death penalty.
What If Scenario
What if the Supreme Court decided that the death penalty was unconstitutional?
If this were to happen what do you think would be the Court’s reason for doing
so? Do you think this may happen?
III. Appeals and Habeas Corpus
Learning Objective 5: Know that there’s no constitutional right to appeal, but every jurisdiction
has created a statutory right to appeal. Understand why habeas corpus is a “collateral attack” and
how civil trials are used to determine whether convicts have been unlawfully detained
Media Tool
“FAQs: What is Habeas Corpus”
http://ccrjustice.org/learn-more/faqs/faqs%3A-what-habeas-corpus
o Center for Constitutional Rights explanation of habeas corpus and the
impacts of legislation related to the war on terrorism.
o Discussion: Discuss the importance of habeas corpus and how it has been
affected by the war on terror. Discuss the problem with indefinite
detention of prisoners of war and the potential outcomes for our criminal
justice system.
Class Discussion/Activity
Divide the students into groups. Have the groups research the right to appeal in
different states. Have the groups’ report back to the class what they found.
Discuss the differences in right to appeal based on different states.
What If Scenario
What if the writers of the Constitution had not included the right of habeas
corpus? How might our system of criminal justice be different today?
See Assignment 4
A. Appeals are called “direct attacks”
B. A habeas corpus proceeding or “collateral attack” is a new and separate noncriminal
lawsuit.
C. Appeals
1. There’s no constitutional right to appeal convictions.
2. All states and the U.S. government have a statutory right to appeal.
a. The right applies only to intermediate appellate courts.
(2) Raise or waive – The offender failed to raise objections during the trial.
(3) Plain error – An error was made that could have led to a miscarriage of
justice.
D. Habeas Corpus
2. Three kinds of collateral attack:
(1) Broad view (Warren Court in 1960s) – Review the whole state court
proceeding to decide whether federal law and the Constitution were violated.
(2) Narrow view (Burger and Rehnquist Courts) – Review only whether the state
(1) Antiterrorism and Effective Death Penalty Act
(a) McQuiggin v. Perkins (2013)
4. There are two review processes—first appeal and then habeas corpus.
Class Discussion/Activity
Have students research the Antiterrorism and Effective Death Penalty Act. Discuss
with students the reasons for the passage of the Act. Discuss what parts of the Act
students think are appropriate and what part they think might encourage abuse.
What If Scenario
What if offenders had the same rights as defendants? In what ways would this be
problematic? What reasons can you think of that offenders have less rights than
defendants?
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Lecture Notes
After conviction, defendants become “offenders” and lose the constitutional protections they
received defendants. Few rights are recognized at sentencing and appeal. Since 2000, the
Supreme Court has rendered several decisions that have impacted the rights defendants have
during the sentencing phase.
For centuries, we have debated whether a criminal sentence should fit the crime or should it
fit the offender. Supporters of fixed sentencing argue that the punishment should fit the crime,
while advocates of indeterminate sentencing think the punishment should be tailored to
Throughout history, legislatures, courts, and administrative agencies have exercised
sentencing authority. In judicial sentencing, judges prescribe sentences. In administrative
sentencing, the legislature and judges prescribe a range of prison times for a particular crime, and
administrative agencies such as parole boards determine the exact release date. Limiting
discretion in sentencing responds to demands for uniformity and certainty of punishment. It also
responds to demands for retribution, deterrence and incapacitation.
Sentencing guidelines establish a relatively narrow range of penalties and give judges room
to depart from the specified ranges where justified. In states that use sentencing guidelines, a
commission establishes the range of penalties, and sentences are tied to the seriousness of the
crime and the offender’s criminal history. Guidelines also establish under what circumstances a
judge may depart from them.
Mandatory minimum sentencing laws require judges to impose a minimum prison time for
certain offenses. Judges have no discretion to impose less than the minimum. Mandatory
minimums have been used throughout U.S. history but fell in to disuse from the 1900s to the
1950s. Fear of crime and drug problems in the 1950s caused Congress to reintroduce mandatory
minimums for federal drug offenses. Congress repealed most mandatory minimum sentences in
The proportionality principle deems sentences cruel and unusual if they are “grossly
disproportionate” to the “gravity of the offense”. A minority of judges believe the Eighth
Amendment requires no proportionality principle, or if so, that it is up to the legislature to decide
what sentences are disproportionate. The Supreme Court has held that the death penalty is
proportionate punishment only when a mentally fit adult kills and is convicted of murder. The Court
is divided on whether the proportionality principle applies to sentences of imprisonment. The Court
ruled in Lockyer v. Andrade that California’s three-strikes law did not impose cruel and unusual
punishment, even though it Andrade was sentenced to life in prison on two counts of petty theft.
The Constitution places few limits on judicial sentencing, and until the present era of
mandatory minimum sentencing, the U.S. Supreme Court adopted a “hands-off” approach.
Sentencing procedures (not just sentences themselves) vary widely due to what the Supreme
Court deems “sound practical reasons” for variation. In the Apprendi bright-line rule, any fact
that increases a penalty for a crime beyond the prescribed maximum provided in the statute must
Because “death is different,” the Supreme Court has held that the sentencing procedure in
capital punishment cases must allow adequate room for the jury to consider both aggravating and
mitigating circumstances and must include a formal review procedure.
Convicted criminals do not base their appeals on any constitutional right, but on a statutory
right to appeal non-capital convictions in intermediate appellate courts, and capital convictions to
any court. Under the Constitution, a state does not have to provide any appeal process, however,
every jurisdiction has created a statutory right to appeal. Appellate review of criminal cases is
Habeas corpus is a “collateral attack” where convicted criminals seek to prove they have
been unlawfully detained in a civil lawsuit against the government. State courts provide
collateral review for defendants convicted in state court. Federal courts review cases brought by
defendants convicted in both federal courts and state courts. The broad view of habeas corpus
holds that the more judicial review a conviction receives, the more accurate it will be. Opponents
Key Terms
presumption of guilt: The presumption that a criminal defendant is guilty once he or she is convicted,
which results in reduced rights for convicted offenders during sentencing and appeal. (p. 534)
right of habeas corpus: The ability to pursue a civil action to determine if the offender is being
lawfully detained. (p. 534)
determinate/fixed sentencing: Fixed sentencing (fitting sentences to the crime) which places most
of the sentencing authority in the hands of legislatures. (p. 534)
indeterminate sentencing: Sentencing (tailoring punishment to suit the criminal) which relies
heavily on the discretion of judges and parole boards in exercising the sentencing authority. (p. 534)
corporal punishment: Punishment for crimes, as provided by statute (but no longer considered
constitutional), that involved physical assault to the offender’s body, such as whipping, mutilation, or
the ducking stool. (p. 535)
judicial sentencing model: A structure in which judges prescribe sentences within broad contours
set by legislative penalties. (p. 537)
administrative sentencing model: A sentencing structure in which parole boards and prison
administrators determine the exact release date within sentences prescribed by legislatures and
judges. (p. 537)
sentencing guidelines: A narrow range of penalties established by a commission within which
judges are supposed to choose a specific sentence. (p. 538)
departure: Sentencing by a judge above or below the sentencing range in sentencing guidelines. (p. 538)
mandatory minimum sentences: The legislatively prescribed, nondiscretionary minimum amount
of prison time that all offenders convicted of the crime must serve. (p. 542)
hands-off approach to sentencing procedures: The U.S. Supreme Court’s approach to sentencing
before the present era of sentencing guidelines and mandatory minimums that left the way sentences
are determined to trial judges. (p. 553)
Apprendi bright-line rule: A rule adopted by the U.S. Supreme Court in the case Apprendi v. New
Jersey (2000) which requires that other than the fact an offender had a prior conviction, any fact that
increases the penalty for a crime beyond the maximum sentence prescribed by the statute must be
submitted to the jury and proved beyond a reasonable doubt. (p. 554)
direct attacks: Proceedings which attack the trial court’s decision as part of the same case. (p. 562)
collateral consequences exception: The principle that cases are not moot if conviction can still
cause legal consequences despite completion of sentence. (p. 563)
raise-or-waive doctrine: The rule that defendants must raise and preserve objections to errors at trial
or waive their right to appeal the errors. (p. 563)
doctrine of judicial economy: The concept that time and money should not be spent on appeals
defendants could have avoided by objecting at trial. (p. 563)
plain-error rule: The rule that applies when plain errors affecting substantial rights cause manifest
injustice or miscarriage of justice. (p. 563)
jurisdiction: The area where a court has the authority to enter a judgment. (p. 564)
great writ of liberty): Included in the Constitution by the Founding Fathers as a bulwark against
tyranny, it is civil action challenging the lawfulness of detention or imprisonment. (p. 564)
res judicata: A holds that once a matter has been decided by a court, it cannot be reopened. (p. 566)
Assignments
1. Have students access the website for the U.S. Sentencing Commission to see how sentencing
guidelines work in the federal system. They can also access websites for sentencing commissions
2. To learn more about the controversy surrounding mandatory minimum sentences, students
should access the Internet site for The Sentencing Project, a non-profit advocacy and educational
organization that is working for sentencing reform in the U.S. Another interesting site that
highlights the problems created by mandatory minimums is the site for Families Against
Mandatory Minimums (FAMM), a nonprofit advocacy group that has grown tremendously since
3. After reading in the text about habeas corpus, have students discuss the controversy that
