Or is the sentence caught by double jeopardy?
(Question inspired by the Brock Turner six month sentence for attempted rape. )
(See this thread: Would a black rapist have received such a lenient sentence?, where AngelSoft says there’s no appeal against sentence.)
I’m assuming this question is in relation to the current Stanford swimmer rape case, in which case the DA would be appealing the sentence for being too lenient.
In California, the prosecution is limited to appealing the 11 different orders/judgments as listed in Penal Code section 1238. The only sentence-related one there is “imposition of an unlawful sentence.” The judge’s sentence is within the amount allowed, so, no appeal.
Thank you. Is that a constitutional principle, implemented by the California statute, or is it simply the legislative / criminal law policy of California?
I understand you are asking specifically in relation to the Stanford swimmer case, but the answer to your question has more than 50 answers (one for each state, the feds, the military, D.C., the territories, tribal courts, etc.).
In Kansas, for example, the prosecution could appeal, because six months would represent a substantial departure from the “guidelines” sentence under the Kansas Sentencing Guidelines Act (which call for a sentence of 147 to 165 months for a defendant with little/no previous record now convicted of rape). The appellate court’s review, however, would be limited to whether the trial court articulated “substantial and compelling” reasons for the departure that are supported by evidence in the record.
Consider also the case that sparked the Malheur Occupation in Oregon, which may be slightly relevant to mention here (or maybe not at all?) in which an appeals court increased some jail sentences, after the original sentences had been completed.
I don’t remember the details much, but here’s a bit of it: IIRC, the father-and-son ranchers Dwight and Steven Hammond set fires on their land to clear brush, which then spread into the BLM lands, for which they were convicted of various (IMHO trumped-up) charges. They were given fairly minimal jail sentences, according to some plea bargain, and served those – and then after that, an appeals court reviewed their sentences and ordered them increased. So the Hammonds had to go back to jail again for several more years (and I suppose may still be there today unless they’ve been paroled or otherwise gotten their sentences reduced). There was much outrage at the increase in their sentences, after they had served their original sentences and in light of their plea bargain.
This led to the Malheur Occupation, led by Ryan and Ammon Bundy, although the Hammonds had disavowed any assistance from them.
Wikipedia: Hammond arson case.
The problem in the Hammonds’ case was that the plea deal was for the statutory minimum of five years, the prosecution asked for five years, and the judge decided all on his own to lower the sentences to three months and one year + one day. The appeals court ruled that when the law said “five year minimum,” it really meant five years.
Also, the arson wasn’t for fires clearing brush that spread onto federal land; the charges were that one fire was deliberately set to cover up poaching, and the second was an illegal backburn set under cover of night and without warning a firefighting crew that the Hammonds knew was in the area.
So sentence appeals are consistent with the double jeopardy clause of the US Constitution?
If I had asked if the DA could appeal from an acquittal, the answer would be “no” for the entire US, correct? No variation amongst states, because of the double jeopardy clause.
If the answer about DA appeals of sentence is that it depends on state law, that means not subject to the federal double jeopardy provision?
Sentencing is generally considered not to have the same finality as conviction itself, so a second sentencing isn’t double jeopardy (there are some exceptions, especially as regards the death penalty, but this is the general rule). State law determines under what circumstances a sentence may be reviewed, but I don’t believe any state says that jeopardy attaches to a sentence.
No, but …
There are two main exceptions to the “no appeal from acquittal”: concurrent jurisdiction and corruption.
Concurrent jurisdiction isn’t strictly speaking an appeal, but another jurisdiction having a go at obtaining a conviction. This can happen, for example, when the same course of conduct violates multiple statutes, such as kidnapping someone in one state, then killing them in another. Three jurisdictions could try the case: State A for the act of kidnapping, State B for the murder, and the feds for crossing state lines with a kidnap victim. An acquittal in one jurisdiction would not preclude the other(s) from obtaining a conviction for their part of the charges. Another example would be a member of the military acquitted by a civilian court but then brought to court-martial under the Uniform Code of Military Justice. (See Timothy Hennis, acquitted of murder by a state court, but convicted by a military court and sentenced to death after new evidence became available; his appeals are still underway.)
Corruption is when the first trial was so fraudulent that the defendant was never in jeopardy in the first place. The classic example is Harry Aleman, a Chicago mob enforcer who was acquitted of murder in the 1970s after his defense attorney bribed the judge (bench trial–no jury). Many years later, after evidence of the bribery came to light, he was retried and convicted; the appeals court ruled that his conviction after acquittal wasn’t double jeopardy because the bribe meant he had never been under any threat of conviction during his first trial.
I tried it once and failed. Situation:
We have a trial, jury finds him guilty. Texas has a bifurcated trial system, meaning that there’s a separate punishment phase after the guilt/innocence phase. So, we do the punishment phase, have our closing arguments, and the jury goes out to deliberate punishment,
The jury signals that they have a verdict and return to the courtroom. The judge reads the sentence, and they gave the guy probation, which surprises me, but it’s a permissible sentence, so if that’s what they wanted to do, okay. The judge then starts explaining the sentence to the defendant. As she does, the jury, still seated in the jury box, gets more and more agitated. We ask for a poll, which the judge denies because she says it’s too late. The foreman of the jury, meanwhile, had whispered to the bailiff, who then approached the bench and told the judge that the jury misunderstood the verdict form. They didn’t want him to do probation, they thought they were sentencing him to ten years in prison, and then probation afterwards. We suggested a few ways to fix it, but the judge denied them and proceeded with a probated sentence anyway, even though it wasn’t what the jury had wanted to do.
Problem is, appeals are sharply limited to those grounds specifically outlined in statutes and granted by the Constitution. The State’s appeals are limited to what’s listed in the Texas Code of Criminal Procedure, article 44.01. Nothing really covered our situation, so our appeal couldn’t even get in the door.