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The division of the Court in these cases and in the Mullaney v. Wilbur line of cases clearly shows the unsettled doctrinal nature of the issues.

Sentencing.—In Townsend v. Burke104 the Court overturned a sentence imposed on an uncounseled defendant by a judge who[p.1766]in reciting defendant’s record from the bench made several errors and facetious comments. “[W]hile disadvantaged by lack of counsel, this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.” But in the absence of revelations of errors by the sentencing judge, the content of procedural due process at sentencing is vague.

Williams v. New York105 upheld the imposition of the death penalty although the jury in convicting had recommended mercy, the judge indicating that he was disregarding the recommendation because of information in the presentence report prepared by a probation officer and not shown to the defendant or his counsel. The Court viewed as highly undesirable the restriction of judicial discretion in sentencing by requiring adherence to rules of evidence which would exclude highly relevant and informative material; similarly, disclosure of such information to the defense could well dry up sources which feared retribution or embarrassment. Thus, hearsay and rumors would be considered and there would be no opportunity of rebuttal. Still in the context of capital cases, the Court has now, although by no consistent rationale, limited Williams. In Gardner v. Florida,106 the jury had recommended a life sentence upon convicting defendant of murder, but the trial judge sentenced the defendant to death, relying in part on a confidential presentence report which he did not characterize or make available to defense or prosecution. Three Justices found that because death was significantly different from other punishments and because sentencing procedures were subject to higher due process standards than when Williams was decided, the report must be made part of the record for review so that the factors motivating imposition of the death penalty may be known, and ordinarily must be made available to the defense. All but one of the other Justices joined the result on various other bases.107 On the other hand, in United[p.1767]States v. Grayson,108 a noncapital case, the Court relied heavily on Williams in holding that a sentencing judge may properly consider his belief that the defendant was untruthful in his trial testimony in deciding to impose a more severe sentence than he would otherwise have imposed. Under the current scheme of individualized indeterminate sentencing, the Court declared, the judge must be free to consider the broadest range of information in assessing the defendant’s prospects for rehabilitation; defendant’s truthfulness, as assessed by the trial judge from his own observations, is relevant information.109

In Specht v. Patterson,110 the Court specifically reaffirmed Williams, but declined to apply it, finding that due process had been denied under circumstances significantly different from those of Williams. Specht had been convicted of taking indecent liberties, which carried a maximum sentence of ten years, but was sentenced under a sex offenders statute to an indefinite term of one day to life. The sex offenders law, the Court observed, did not make the commission of the particular offense the basis for sentencing. Instead, by triggering a new hearing to determine whether the convicted person was a public threat, an habitual offender, or mentally ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. Mempa v. Rhay111 held that when sentencing is deferred subject to probation and the terms of probation are allegedly violated so that the convicted defendant is returned for sentencing, he must then be represented by counsel, inasmuch as it is a point in the process where substantial rights of the defendant may be affected. Moreover, in Kent v. United States112 the Court required that before a juvenile court decided to waive jurisdiction and transfer a juvenile to an adult court it must hold a hearing and permit defense counsel to examine the probation officer’s report which formed the basis for the court’s decision.

[p.1768]

It is a denial of due process for a judge to sentence a convicted defendant on retrial to a longer sentence than he received after the first trial if the object of the sentence is to punish the defendant for having successfully appealed his first conviction or to discourage similar appeals by others.113 If the judge does impose a longer sentence the second time, he must justify it on the record by showing, for example, the existence of new information meriting a longer sentence.114

Because the possibility of vindictiveness in resentencing is de minimis when it is the jury that sentences, Pearce’s requirement that a judge resentencing on a subsequent trial must justify a more severe sentence is inapplicable to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence. The Court concluded that the possibility of vindictiveness was so low because normally the jury would not know of the result of the prior trial nor the sentence imposed, nor would it feel either the personal or institutional interests of judges leading to efforts to discourage the seeking of new trials.115 The presumption of vindictiveness is also inapplicable if the first sentence was imposed following a guilty plea. Here the Court reasoned that a trial may well afford the court insights into the nature of the crime and the character of the defendant that were not available following the initial guilty plea.116

Due process does not impose any limitation upon the sentence that a legislature may affix to any offense; that function is in the Eighth Amendment.117


Footnotes

104 334 U.S. 736, 740–41 (1948) . In Hicks v. Oklahoma, 447 U.S. 343 (1980) , the jury had been charged in accordance with an habitual offender statute that if it found defendant guilty of the offense charged, which would be a third felony conviction, it should assess punishment at 40 years imprisonment. The jury convicted and gave defendant 40 years. Subsequently, in another case, the habitual offender under which Hicks had been sentenced was declared unconstitutional, but Hicks’ conviction was affirmed on the basis that his sentence was still within the permissible range open to the jury. The Supreme Court reversed. Hicks was denied due process because he was statutorily entitled to the exercise of the jury’s discretion and could have been given a sentence as low as ten years. That the jury might still have given the stiffer sentence was only conjectural. On other due process restrictions on the determination of the applicability of recidivist statutes to convicted defendants, see Chewing v. Cunningham, 368 U.S. 443 (1962) ; Oyler v. Boles, 368 U.S. 448 (1962) ; and Spencer v. Texas, 385 U.S. 554 (1967) . On Eighth Amendment relevance, see supra, pp. 1495– 96.

Supplement: [P. 1765, add to n.104 after Spencer v. Texas citation:]

Parke v. Raley, 506 U.S. 20 (1992) .

105 337 U.S. 241 (1949) . See also Williams v. Oklahoma, 358 U.S. 576 (1959) .
106 430 U.S. 349 (1977) .
107 Only Justices Stevens, Stewart, and Powell took the position described in the text. Id. at 357–61. Justice Brennan without elaboration thought the result compelled by due process, id. at 364, Justices White and Blackmun thought the result necessitated by the Eighth Amendment, id. at 362, 364, as did Justice Marshall in a different manner. Id. at 365. Chief Justice Burger concurred only in the result, id. at 362, and Justice Rehnquist dissented. Id. at 371. See also Lankford v. Idaho, 500 U.S. 110 (1991) (due process denied where judge sentenced defendant to death after judge’s and prosecutor’s actions misled defendant and counsel into believing that death penalty would not be at issue in sentencing hearing).
108 438 U.S. 41 (1978) .
109 See also United States v. Tucker, 404 U.S. 443, 446 (1972) ; Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973) . Cf. 18 U.S.C. Sec. 3577 .
110 386 U.S. 605 (1967) .
111 389 U.S. 128 (1967) .
112 383 U.S. 541, 554, 561, 563 (1966) . Kent was ambiguous whether it was based on statutory interpretation or constitutional analysis; In re Gault, 387 U.S. 1 (1967) , appears to have constitutionalized the language.
113 North Carolina v. Pearce, 395 U.S. 711 (1969) . Pearce was held to be nonretroactive in Michigan v. Payne, 412 U.S. 47 (1973) . When a State provides a two–tier court system in which one may have an expeditious and somewhat informal trial in an inferior court with an absolute right to trial de novo in a court of general criminal jurisdiction if convicted, the second court is not bound by the rule in Pearce, inasmuch as the potential for vindictiveness and inclination to deter is not present. Colten v. Kentucky, 407 U.S. 104 (1972) . But see Blackledge v. Perry, 417 U.S. 21 (1974) , discussed supra, p. 1761.
114 An intervening conviction on other charges for acts committed prior to the first sentencing may justify imposition of an increased sentence following a second trial. Wasman v. United States, 468 U.S. 559 (1984) .
115 Chaffin v. Stynchcombe, 412 U.S. 17 (1973) . Justices Stewart, Brennan, and Marshall thought the principle was applicable to jury sentencing and that prophylactic limitations appropriate to the problem should be developed. Id. at 35, 38. Justice Douglas dissented on other grounds. Id. at 35. The Pearce presumption that an increased, judge–imposed second sentence represents vindictiveness also is inapplicable if the second trial came about because the trial judge herself concluded that a retrial was necessary due to prosecutorial misconduct before the jury in the first trial. Texas v. McCullough, 475 U.S. 134 (1986) .
116 Alabama v. Smith, 490 U.S. 794 (1989) .
117 Williams v. Oklahoma, 358 U.S. 576, 586–87 (1959) . See also Collins v. Johnston, 237 U.S. 502 (1915) . On recidivist statutes, see Graham v. West Virginia, 224 U.S. 616, 623 (1912) ; Ughbanks v. Armstrong, 208 U.S. 481, 488 (1908) , and, under the Eighth Amendment, Rummel v. Estelle, 445 U.S. 263 (1980) .
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