Punishment and double jeapordy Flashcards Preview

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Flashcards in Punishment and double jeapordy Deck (17):
1

Punishment 8th amdt standard

i. prohibition on cruel and unusual punishment disallows penalties that are grossly disproportionate to the seriousness of the offense
ii. very tough std to meet
iii. minor misdemeanors can lead to life imprisonment under 3 strikes law

2

8th amendment and death penalty

i. Statutory limits: a death penalty statute would violate the 8th amdt if it created an automatic category for the imposition of the death penalty. for ex requirement for death penalty foor 1st degree murder where victim was PO
1. must have statute giving judge or jury discretion, full info re ∆, and guidance in the decision. statute cannot be vague.

ii. Evidentiary reqs: jurors must be allowed to consider all potentially mitigating evidence

iii. Categorical exclusion:
1. against ∆s with mental retardation
2. against ∆s who are presently insane.
3. against ∆s under the age of 18 at time offense occurred
a. cant sentence juvenile offenders to life without parole
4. on crimes against persons, eg child rape, where the victim didn’t die
a. also prohibited for felony murder unless murderr was majar participant and acted with reckless indifference

3

Considering ∆ perjury in sentencing

c. considering ∆ perjury – in sentencing judge may take into account a belief that ∆ committed perjury

4

Status crimes and the 8th amendment

d. Status crimes are violation of 8th amendment, bc it punishes a mere propensity

5

Imprisonment of indigents for nonpayment

if aggregate imprisonment exceeds the maximum figure fixed by sttute and is direct cause of nonpayment of fine or court costs, there is an impermissible discrimination/ violation of EP

6

Sentence enhancement and 8th amendment

i. Any fact that increases either the statutory max of mandatory min for a crime must be found by the jury not by the judge.
1. for ex hate crimes are allowed too be increased 10 years beyond statutory max, must be found by jury
2. However, decision as to whether sentences run consecutively oor concurrently are made by judge

7

Constitutional problems on appeal

a. no federal const right to appeal
b. EP and right to counsel on appeal—IF there is an appeal process, conditions that make it less accessable to the poor than the rich violate EP, so indigents must be given counsel at state expense during a first appeal granted to all as a matter of right and for appeals of guilty pleas and pleaas of nolo contendere.
i. but if there’s a second appeal court w discretionary review, indigent need not be provided with counsel during this appeal

8

Collateral attack upon conviction

a. after appeal fails or is no longer available, ∆ may still attack convictions collaterally
b. habeus corpus proceeding—no right for indigents to get counsel at habeus proceedings. Petitioner has BOP to show unlawful detention.
i. may bring habeus only if in custody. Includes anyone who hasn’t completed sentence.

9

Rights during punishment

a. ∆ is entitled to representation if revocation of probation involves imposition of a new sentence.
b. if ccase involves parole revocation, only entitled to counsel if needed for a fair hearing. (like ∆ denies commission of alleged acts, or issues otherwise hard to develop)

10

Double jeapordy requirements

no person be subject for the same offence to be twice put in jeopardy of life or limb” by the same sovereign

11

When does jeapordy attach?

i. Jury trial:when the jury sworn
ii. Bench trial: when first witness sworn
iii. guilty plea: when court accepts plea unconditionally

12

Does double jeapordy apply to civil proceedings?

b. DOES NOT apply to civil proceedings. can be prosecuted both civilly and criminaly (eg both DOJ and SEC)

13

Double jeapordy same offense requirement

i. 2 offenses are not th same offense if each contains an element the other does not
1. For ex:
a. vehicular manslaughter: causing death of anther through use of an auto operated negligently
b. Hit and run: causing bodily injury to another through use of an auto operated negligently and unlawfully leaving scene after accident
c. NOT the same offense, vehicular manslaughter requires proof oof death, hit and run requires leaving the scene
ii. Greater and lesser included offenses: when only one offense has an element not contained in the other
1. Ex: auto theft = taking and operating auto without owner consent with intent to permanently deprive owner of possession
a. joyriding= taking and operating auto without owner consent.
b. only auto theft has third additional element, thus joyriding is a lesser included offense of auto theft
c. if prosecuted for auto theft, cannot later be tried for joyriding
i. prosecution foor greater offense precludes later prosecution for lesser include
d. if prosecuted for joyriding cannot be tried for auto offense
i. prosecution for lesser offense later precludes prosecution for greater offense

14

Double jeapordy same sovereign requirement

i. state and fed government are NOT same sovereign--- CAN face trial for same crime for both feds and state
ii. dif states—NOT same sovereign, can be tried by 2 states if both have jdxn
iii. states and municipalities within them—YES are same sovereign. cannot be prosecuted both by county and AG for ex

15

four exceptions to double jeapordy permitting retrial

i. a hung jury. can be retried
ii. mistrial for manifest necessity
1. for ex defect in indictment that could not be cured thru amendment
iii. successful appeal, unless reversal on appel was based on the insufficiency of the evidence presented by P at trial
1. cant get more evidence and have second bite at apple. appeal must be legal issue not evidentiary
iv. Breach of plea bargain by ∆--not a violation to recharge the ∆

16

Double jeapordy collateral estoppel

-- ∆ may not be tried or convicted if a prior prosecution by that sovereignty resulted ina factual determination inconsistent with one required for conviction

17

Exception permitting retrial even if jeopardy has attached

c. Exception permitting retrial even if jeopardy has attached:
i. when mistrial is granted in the first trial at the request of the ∆ on any ground not constituting an acquittal on the merits.