Criminal sentencing and provisions of the Eighth Amendment

Criminal sentencing and provisions of the Eighth Amendment

Philippine News : Monday, December 19 2011

Because of the range of punishment, a judge will consider certain ‘aggravating’ or ‘mitigating’ circumstances.

Judges, not juries, determine punishments for crime (in capital punishment cases, the jury usually decides whether to recommend death or life in prison). The Eighth Amendment to the U.S. Constitution, made applicable to the states by the Fourteenth Amendment, provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

Most crimes are specifically enumerated in the constitution or statutes, and the provision that identifies that specific crime will also identify the appropriate punishment. For example, a misdemeanor statute may read, “violation of this statute, punishable by a fine not to exceed $1000 and imprisonment not to exceed one year or both.” Because of the range of punishment, a judge will consider certain “aggravating” or “mitigating” circumstances.

Common factors are: (1) whether the offender is a “first-time offender or a repeat offender; (2) the gravity of the injuries to the victim(s); (3) whether the victim(s) were “vulnerable” (children or elderly); (4) whether firearms or other weapons were used; (4) character of the defendant; (5) remorsefulness of the defendant.

Federal Rule of Criminal Procedure 32(a), before imposing a sentence, the judge must afford counsel an opportunity to speak on behalf of the defendant. The judge will address the defendant personally and ask if he/she wishes to make a statement on his/her own behalf and to present any information in mitigation of punishment. The attorney representing the government will also have the opportunity to speak to the court. In many state courts, a victim(s) or the survivors of a victim may have the ability to address the judge and recommend leniency or request the maximum sentence to be imposed.

Former Illinois Governor Blagojevich was sentenced to 14 years to federal prison for corruption. U.S. District Judge James Zagel stated after the two day hearing that, “the harm here is not measured in the value of money or property…. the harm is the erosion of public trust in the government.” Blagojevich, a lawyer and former state prosecutor, state legislator, and U.S. Representative, was arrested on 12/8/2008, while serving his second term as governor.

He was accused of using his office in numerous matters involving state appointments, business, legislation and pension fund investments to seek or obtain financial benefits. He was trying to leverage his authority to appoint a U.S. Senator to replace President-Elect Obama. He went to trial in the summer of 2010 and was convicted of 1 count of lying to FBI agents, but the jury was deadlocked on 23 counts. He went to trial again in the spring of 2011 and was convicted on 17 of the 20 counts, including bribery and attempted extortion.

As for Conrad Murray, he was sentenced to the maximum 4 years state prison for the death of Michael Jackson. Due to the new California law, he will not serve his time in prison but L.A. county jail. Judge Michael Pastor noted that, “Dr. Murray engaged in recurring, continuous pattern of deceit and lies.” In the end, the judge said, “Dr. Murray abandoned his patient,” calling his conduct…”medicine madness,” egregious” and “a disgrace to the medical profession.”

Both judges in the Blagojevich and Murray case underscored the lack of remorsefulness of the defendants in their respective case. It is critical that in convincing the judge to impose a lesser sentence, the defendant and his/her attorney must convince the judge of the defendant’s good character and highlight the mitigating circumstances of the case.