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ent of guilt in the second degree; consequently no showing was made that he knowingly was admitting such intent. ‘‘A plea may be involuntary either because voluntarily, knowingly, and understandingly, even to obtain an advantage, is sufficient to overcome constitutional objections. 1088 The guilty plea and the often concomitant plea bargain are important and necessary components of the criminal justice system, 1089 and it is permissible for a prosecutor during such plea bargains to require a defendant to forego his right to go to trial in return for escaping additional charges which are likely to result in a much more severe penalty. 1090 But the prosecutor does deny due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence. 1091 In accepting a guilty pleas, the court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly, 1092 and ‘‘the adjudicative element inherent in accepting a VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00197 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1868 AMENDMENT 14—RIGHTS GUARANTEED the accused does not understand the nature of the constitutional protections that he is waiving . . . or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.’’ Id. at 645 n.13. See also Blackledge v. Allison, 431 U.S. 63 (1977). 1093 Santobello v. New York, 404 U.S. 257, 262 (1971). Defendant and a prosecutor reached agreement on a guilty plea in return for no sentence recommendation by the prosecution. At the sentencing hearing months later, a different prosecutor recommended the maximum sentence, and that sentence was imposed. The Court vacated the judgment, holding that the prosecutor’s entire staff was bound by the promise. Prior to the plea, however, the prosecutor may withdraw his first offer, and a defendant who later pled guilty after accepting a second, less attractive offer has no right to enforcement of the first agreement. Mabry v. Johnson, 467 U.S. 504 (1984). 1094 In Townsend v. Burke, 334 U.S. 736, 740–41 (1948) the Court overturned a sentence imposed on an uncounseled defendant by a judge who 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.’’ 1095 In Hicks v. Oklahoma, 447 U.S. 343 (1980), the jury had been charged in accordance with a 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 statute 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 Chewning v. Cunningham, 368 U.S. 443 (1962); Oyler v. Boles, 368 U.S. 448 (1962); Spencer v. Texas, 385 U.S. 554 (1967); Parke v. Raley, 506 U.S. 20 (1992). 1096 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. 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). 1097 337 U.S. 241 (1949). See also Williams v. Oklahoma, 358 U.S. 576 (1959). plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’’ 1093 Sentencing.—In the absence errors by the sentencing judge, 1094 or of sentencing jurors considering invalid factors, 1095 the significance of procedural due process at sentencing is limited. 1096 In Williams v. New York, 1097 the Court upheld the imposition of the death penalty, despite a jury’s recommendation of mercy, where the judge acted based on information in a presentence report not shown to the defendant or his counsel. The VerDate Aug<10>2004 00:59 Sep 21, 2004 Jkt 077500 PO 00000 Frm 00198 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1869 1098 430 U.S. 349 (1977). 1099 In Gardner, 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. Justices Stevens, Stewart, and Powell 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. 430 U.S. at 357-61. All but one of the other Justices joined the result on various other bases. Justice Brennan without elaboration thought the result was compelled by due process, id. at 364, while Justices White and Blackmun thought the result was 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). 1100 438 U.S. 41 (1978). 1101 438 U.S. at 49-52. 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. § 3577. 1102 See, e.g., Kent v. United States, 383 U.S. 541, 554, 561, 563 (1966), where 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. Kent was ambiguous whether it was based on statutory interpretation or constitutional analysis. In re Gault, 387 U.S. 1 (1967), however, appears to have constitutionalized the language. 1103 386 U.S. 605 (1967). 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. Further, disclosure of such information to the defense could well dry up sources which feared retribution or embarrassment. Thus, hearsay and rumors can be considered in sentencing. In Gardner v. Florida, 1098 however, the Court limited the application of Williams to capital cases. 1099 In United States v. Grayson, 1100 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. the Court declared that under the current scheme of individualized indeterminate sentencing, 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. 1101 There are various sentencing proceedings, however, which so implicate substantial rights that additional procedural protections are required. 1102 Thus, in Specht v. Patterson, 1103 the Court consid- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00199 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1870 AMENDMENT 14—RIGHTS GUARANTEED 1104 389 U.S. 128 (1967). 1105 512 U.S. 154 (1994). See also Shafer v. South Carolina, 532 U.S. 36 (2001) (amended South Carolina law still runs afoul of Simmons). 1106 530 U.S. 156 (2000). 1107 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 twotier 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. ered a defendant who 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, a habitual offender, or mentally ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. And in Mempa v. Rhay, 1104 the Court 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. Due process considerations can also come into play in sentencing if the State attempts to withhold relevant information from the jury. For instance, in Simmons v. South Carolina, the Court held that due process requires that if prosecutor makes an argument for the death penalty based on the future dangerousness of the defendant to society, the jury must then be informed if the only alternative to a death sentence is a life sentence without possibility of parole. 1105 But in Ramdass v. Angelone, 1106 the Court refused to apply the reasoning of Simmons because the defendant was not technically parole ineligible at the time of sentencing. A defendant should not be penalized for exercising a right to appeal. Thus, 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. 1107 If the judge does impose a longer sentence the second time, he must justify it on the VerDate Aug<10>2004 02:45 Sep 16, 2004 Jkt 077500 PO 00000 Frm 00200 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1871 1108 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). 1109 Chaffin v. Stynchcombe, 412 U.S. 17 (1973). 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. 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). 1110 Alabama v. Smith, 490 U.S. 794 (1989). 1111 McKane v. Durston, 153 U.S. 684, 687 (1894). See also Andrews v. Swartz, 156 U.S. 272, 275 (1895); Murphy v. Massachusetts, 177 U.S. 155, 158 (1900); Reetz v. Michigan, 188 U.S. 505, 508 (1903). 1112 Griffin v. Illinois, 351 U.S. 12, 18 (1956); id. at 21 (Justice Frankfurter concurring), 27 (dissenting opinion); Ross v. Moffitt, 417 U.S. 600 (1974). 1113 The line of cases begins with Griffin v. Illinois, 351 U.S. 12 (1956), in which it was deemed to violate both the due process and the equal protection clauses for a State to deny to indigent defendants free transcripts of the trial proceedings, which would enable them adequately to prosecute appeals from convictions. See record by showing, for example, the existence of new information meriting a longer sentence. 1108 Because the possibility of vindictiveness in resentencing is de minimis when it is the jury that sentences, however, the requirement of justifying a more severe sentence upon resentencing is inapplicable to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence. 1109 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. 1110 Corrective Process: Appeals and Other Remedies.—‘‘An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review.’’ 1111 This holding has been reaffirmed 1112 although the Court has also held that when a State does provide appellate process it may not so condition the privilege as to deny it irrationally to some persons, such as indigents. 1113 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00201 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1872 AMENDMENT 14—RIGHTS GUARANTEED analysis under ‘‘Poverty and Fundamental Interests: The Intersection of Due Process and Equal Protection—Generally’’ infra. 1114 237 U.S. 309, 335 (1915). 1115 Moore v. Dempsey, 261 U.S. 86, 90, 91 (1923); Mooney v. Holohan, 294 U.S. 103, 113 (1935); New York ex rel. Whitman v. Wilson, 318 U.S. 688, 690 (1943); Young v. Ragan, 337 U.S. 235, 238–39 (1949). 1116 Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). 1117 Carter v. Illinois, 329 U.S. 173, 175–76 (1946). 1118 Note that in Case v. Nebraska, 381 U.S. 336 (1965), the Court had taken for review a case which raised the issue whether a State could simply omit any corrective process for hearing and determining claims of federal constitutional viola- But it is not the case that a State is free to have no corrective process at all in which defendants may pursue remedies for federal constitutional violations. In Frank v. Mangum, 1114 the Court asserted that a conviction obtained in a mob-dominated trial was contrary to due process: ‘‘if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.’’ Consequently, it has been stated numerous times that the absence of some form of corrective process when the convicted defendant alleges a federal constitutional violation contravenes the Fourteenth Amendment, 1115 and it has been held that to burden this process, such as limiting the right to petition for habeas corpus, is to deny the convicted defendant his constitutional rights. 1116 The mode by which federal constitutional rights are to be vindicated after conviction is for the government concerned to determine. ‘‘Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases. A State may decide whether to have direct appeals in such cases, and if so under what circumstances. . . . In respecting the duty laid upon them . . . States have a wide choice of remedies. A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis. It may use each of these ancient writs in its common law scope, or it may put them to new uses; or it may afford remedy by a simple motion brought either in the court of original conviction or at a place of detention. . . . So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated.’’ 1117 If a State provides a mode of redress, a defendant must first exhaust that mode, and if unsuccessful may seek relief in federal court; if there is no adequate remedy in state court, the defendant may petition a federal court for relief through a writ of habeas corpus. 1118 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00202 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1873 tions, but it dismissed the case when the State in the interim enacted provisions for such process. 1119 Frank v. Mangum, 237 U.S. 309 (1915). 1120 261 U.S. 86 (1923). 1121 297 U.S. 278 (1936). 1122 Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). 1123 Cf. In re Bonner, 151 U.S. 242 (1894). 1124 Price v. Johnston, 334 U.S. 266, 285 (1948). 1125 ‘‘There is no iron curtain drawn between the Constitution and the prisons of this country.’’ Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974). When appellate or other corrective process is made available, inasmuch as it is no less a part of the process of law under which a defendant is held in custody, it becomes subject to scrutiny for any alleged unconstitutional deprivation of life or liberty. At first, the Court seemed content to assume that when a state appellate process formally appeared to be sufficient to correct constitutional errors committed by the trial court, the conclusion by the appellate court that the trial court’s sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law. 1119 But in Moore v. Dempsey, 1120 while insisting that it was not departing from precedent, the Court directed a federal district court in which petitioners had sought a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners—mob domination of their trial—notwithstanding that the state appellate court had ruled against the legal sufficiency of these same allegations. Indubitably, Moore marked the abandonment of the Supreme Court’s deference, founded upon considerations of comity, to decisions of state appellate tribunals on issues of constitutionality, and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair, an abandonment soon made even clearer in Brown v. Mississippi 1121 and now taken for granted. Rights of Prisoners.—Until relatively recently the view prevailed that a prisoner ‘‘has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.’’ 1122 This view is not now the law, and may never have been wholly correct. 1123 In 1948 the Court declared that ‘‘[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights’’; 1124 ‘‘many,’’ indicated less than ‘‘all,’’ and it was clear that the due process and equal protection clauses to some extent do apply to prisoners. 1125 More direct acknowledgment of constitutional protection came in 1972: ‘‘[f]ederal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ which include prisoners. We are VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00203 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1874 AMENDMENT 14—RIGHTS GUARANTEED 1126 Cruz v. Beto, 405 U.S. 319, 321 (1972). See also Procunier v. Martinez, 416 U.S. 396, 404–05 (1974) (invalidating state prison mail censorship regulations). 1127 Bell v. Wolfish, 441 U.S. 520, 545–548, 551, 555, 562 (1979) (federal prison); Rhodes v. Chapman, 452 U.S. 337, 347, 351–352 (1981). 1128 Bell v. Wolfish, 441 U.S. 520 (1979). Persons not yet convicted of a crime may be detained by government upon the appropriate determination of probable cause and the detention may be effectuated through subjection of the prisoner to the restrictions and conditions of the detention facility. But a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. Therefore, unconvicted detainees may not be subjected to conditions and restrictions that amount to punishment. However, the Court limited its concept of punishment to practices intentionally inflicted by prison authorities and to practices which were arbitrary or purposeless and unrelated to legitimate institutional objectives. 1129 See ‘‘Prisons and Punishment,’’ supra. 1130 E.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Baxter v. Palmigiano, 425 U.S. 308 (1976); Vitek v. Jones, 445 U.S. 480 (1980); Washington v. Harper, 494 U.S. 210 (1990) (prison inmate has liberty interest in avoiding the unwanted administration of antipsychotic drugs). 1131 E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119 (1977). On religious practices and ceremonies, see Cooper v. Pate, 378 U.S. 546 (1964); Cruz v. Beto, 405 U.S. 319 (1972). 1132 Lee v. Washington, 390 U.S. 333 (1968). 1133 Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). Prisoners must have reasonable access to a law library or to persons trained in the law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1978). Establishing a right of access to law materials, however, requires an individualized demonstration of an inmate having been hindered in efforts to pursue a legal claim. not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances . . . .’’ 1126 However, while the Court affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, at the same time concerns of federalism and of judicial restraint caused the Court to emphasize the necessity of deference to the judgments of prison officials and others with responsibility for administering such systems. 1127 Save for challenges to conditions of confinement of pretrial detainees, 1128 the Court has generally treated challenges to prison conditions as a whole under the cruel and unusual punishments clause of the Eighth Amendment, 1129 while challenges to particular incidents and practices are pursued under the due process clause 1130 or more specific provisions, such as the First Amendment speech and religion clauses. 1131 Prior to formulating its current approach, the Court recognized several rights of prisoners. Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline. 1132 They have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints, 1133 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00204 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1875 See Lewis v. Casey, 518 U.S. 343 (1996) (no requirement that the State ‘‘enable [a] prisoner to discover grievances, and to litigate effectively’’). 1134 Haines v. Kerner, 404 U.S. 519 (1972); Preiser v. Rodriguez, 411 U.S. 475 (1973). 1135 482 U.S. 78 (1987) (upholding a Missouri rule barring inmate-to-inmate correspondence, but striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child). 1136 482 U.S. at 89. 1137 482 U.S. at 91. 1138 Hudson v. Palmer, 468 U.S. 517, 526 (1984); Block v. Rutherford, 468 U.S. 576 (1984) (holding also that prison security needs support a rule prohibiting pretrial detainees contact visits with spouses, children, relatives, and friends). 1139 Hudson v. Palmer, 468 U.S. 517, 530 (1984). 1140 Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that state tort law provided adequate postdeprivation remedies). But see

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