Fourteenth Amendment, Section 1 — Procedural Due Process: Criminal Cases Post-Trial

Amdt14.S1.5.6.1 Overview of Criminal Cases and Post-Trial Due Process

The Supreme Court has struck down criminal sentences on due process grounds when the sentencing judge relied on inaccurate information¹ or the sentencing jurors considering invalid factors.² Aside from those circumstances, procedural due process imposes few limits on criminal sentencing.³ In Williams v. New York, 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.⁴ The Court opined that it was undesirable to restrict judicial discretion in sentencing by requiring adherence to rules of evidence that would exclude highly relevant and informative material. Further, disclosure of such information to the defense could dry up sources who feared retribution or embarrassment. Thus, hearsay and rumors can be considered in sentencing. In Gardner v. Florida, however, the Court limited the application of Williams to capital cases.⁵

In United States v. Grayson, 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.⁶ The Court declared that the judge must be free to consider the broadest range of information in assessing the defendant’s prospects for rehabilitation, and the defendant’s truthfulness, as assessed by the trial judge from his own observations, is relevant information.⁷

There are some sentencing proceedings, however, that so implicate substantial rights that additional procedural protections are required.⁸ In Specht v. Patterson, a defendant had been convicted of taking indecent liberties, which carried a maximum sentence of ten years, but was sentenced under a sex offender statute to an indefinite term of one day to life.⁹ The sex offender 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. In Mempa v. Rhay, the Court held that, when sentencing is deferred subject to probation and the convicted defendant is later returned for sentencing following an alleged probation violation, the sentencing is a point in the process where substantial rights of the defendant may be affected, so the defendant must be represented by counsel.¹⁰

A state may also violate due process if it attempts to withhold relevant information from the sentencing 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.¹¹ But, in Ramdass v. Angelone, the Court refused to apply the reasoning of Simmons because the defendant was not technically parole ineligible at time of sentencing.¹²

Due process prohibits penalizing a defendant 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.¹³ If the judge imposes 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.¹⁴ By contrast, the Court has declined to apply the requirement of justifying a more severe sentence upon resentencing to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence, reasoning that the possibility of vindictiveness in jury resentencing is de minimis.¹⁵ The presumption of vindictiveness is also inapplicable if the first sentence was imposed following a guilty plea, as a trial may 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.¹⁶

Amdt14.S1.5.6.2 Criminal Appeals and Procedural Due Process

Procedural due process does not require states to allow appeals from criminal convictions, but does impose some requirements on appeals if a state chooses to authorize them. In an 1894 case, the Supreme Court opined,

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.¹

The Court has since reaffirmed that holding.² However, it has also held that, when a state does provide appellate review, it may not so condition the privilege as to deny it irrationally to some persons, such as indigents.³

While states may decline to allow traditional criminal appeals, they are not free to have no corrective process in which defendants may pursue remedies for federal constitutional violations. In Frank v. Mangum, the Court held that a conviction obtained in a mob-dominated trial violated 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.”⁴ The Court has stated numerous times that the Fourteenth Amendment requires some form of corrective process when a convicted defendant alleges a federal constitutional violation.⁵ To burden that process, such as by limiting the right to petition for a writ of habeas corpus, violates the defendant’s constitutional rights.⁶

The government has discretion to determine the means by which defendants can vindicate federal constitutional rights after conviction. The Court has explained that “[w]ide discretion must be left to the States” in this area:

A State may decide whether to have direct appeals in such cases, and if so under what

circumstances. . . . 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 . . .

or it may afford remedy by a simple motion brought either in the court of original

conviction or at the 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.⁷

If a state provides a mode of redress, a defendant must first exhaust that remedy. If he is unsuccessful, or if a state does not provide an adequate mode of redress, then the defendant may petition a federal court for relief through a writ of habeas corpus.⁸

When a state provides appellate or other corrective process, that process is subject to scrutiny for alleged unconstitutional deprivations of life or liberty like any other part of a criminal case. At first, the Court appeared to assume that, when a state appellate process formally appeared to be sufficient to correct constitutional errors committed by the trial court, the affirmance of a trial court’s sentence of execution was ample assurance that life would not be forfeited without due process of law.⁹ But, in Moore v. Dempsey, the Court directed a federal district court considering a petition for a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners, notwithstanding that the state appellate court had ruled against the legal sufficiency of the same allegations.¹⁰ In Moore and a subsequent case, Brown v. Mississippi,¹¹ the Court declined to defer to decisions of state appellate tribunals holding that proceedings in a trial court were fair.

In a 2009 case, the Court held that the Due Process Clause does not provide convicted persons a right to post-conviction access to the state’s evidence for DNA testing.¹² Chief Justice John Roberts, in a 5-4 decision, noted that forty-six states had enacted statutes dealing specifically with access to DNA evidence, and that the Federal Government had enacted a statute allowing federal prisoners to move for court-ordered DNA testing under specified conditions. Even the states that had not enacted statutes dealing specifically with access to DNA evidence must, under the Due Process Clause, provide adequate post-conviction relief procedures. The Court, therefore, saw “no reason to constitutionalize the issue.”¹³

Amdt14.S1.5.6.3 Probation, Parole, and Procedural Due Process

Sometimes convicted defendants are not sentenced to imprisonment, but instead are placed on probation subject to incarceration if they violate the conditions that are imposed; others who are incarcerated may qualify for release on parole before completing their sentence, subject to reincarceration if they violate imposed conditions. The Court has deemed both parole and probation to be statutory privileges granted by the government, and thus early cases assumed that the government did not have to provide procedural due process in granting or revoking either.¹ Under modern doctrine, however, both granting and revocation of parole and probation are subject to due process analysis.

In Morrissey v. Brewer, a unanimous Court held that parole revocations must comply with due process hearing and notice requirements.² The Court explained,

[T]he revocation of parole is not part of a criminal prosecution and thus the full

panoply of rights due a defendant in such a proceeding does not apply to parole

revocation . . . [But] the liberty of a parolee, although indeterminate, includes many of

the core values of unqualified liberty and its termination inflicts a “grievous loss” on

the parolee and often on others. It is hardly useful any longer to try to deal with this

problem in terms of whether the parolee’s liberty is a “right” or a “privilege.” By

whatever name, the liberty is valuable and must be seen as within the protection of the

Fourteenth Amendment. Its termination calls for some orderly process, however

informal.³

The Court held that what process is due depended on the state’s interests. The state’s principal interest was that, having once convicted a defendant, imprisoned him, and, at some risk, released him for rehabilitation purposes, it should be “able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole. Yet, the state has no interest in revoking parole without some informal procedural guarantees,” inasmuch as such guarantees will not interfere with its reasonable interests.⁴

The Morrissey Court held that minimal due process dictates that at both stages of the parole revocation process—the arrest of the parolee and the formal revocation—the parolee is entitled to certain rights. Promptly following arrest of the parolee, there should be an informal hearing to determine whether reasonable grounds exist for revocation of parole.⁵ The parolee should be given adequate notice that the hearing will take place and what violations are alleged; the parolee should be able to appear and speak on his or her own behalf and produce other evidence and should be allowed to examine those who have given adverse evidence against him or her unless it is determined that the identity of such informant should not be revealed. In addition, the hearing officer should prepare a digest of the hearing and base his or her decision upon the evidence adduced at the hearing.⁶

Prior to the final decision on revocation, there should be a more formal revocation hearing involving a final evaluation of any contested relevant facts and consideration whether the facts as determined warrant revocation. The hearing must take place within a reasonable time after the parolee is taken into custody, and he or she must be enabled to controvert the allegations or offer evidence in mitigation. The procedural details of such hearings are for the states to develop, but the Court specified minimum requirements of due process, including

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of

evidence against him; (c) opportunity to be heard in person and to present witnesses

and documentary evidence; (d) the right to confront and cross-examine adverse

witnesses (unless the hearing officer specifically finds good cause for not allowing

confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole

board, members of which need not be judicial officers or lawyers; and (f) a written

statement by the factfinders as to the evidence relied on and the reasons for revoking

parole.⁷

Ordinarily, the written statement need not indicate that the sentencing court or review board considered alternatives to incarceration,⁸ but a sentencing court must consider such alternatives if the probation violation consists of the failure of an indigent probationer, through no fault of his own, to pay a fine or restitution.⁹

The Court has applied a flexible due process standard to the provision of counsel in parole or probation revocation proceedings. The Court has not always required provision of counsel in such proceedings. However, it has held that the state should provide the assistance of counsel where an indigent person may have difficulty in presenting his or her version of disputed facts without cross-examination of witnesses or presentation of complicated documentary evidence. Presumptively, counsel should be provided where the person requests counsel and makes a timely and colorable claim that he or she has not committed the alleged violation, or if there are reasons in justification or mitigation that might make revocation inappropriate.¹⁰ In Mempa v. Rhay, the Court held that a criminal defendant was entitled to counsel at a deferred sentencing hearing conducted after he violated the conditions of his probation.¹¹

The Court analyzed of the Due Process Clause’s requirements with respect to granting parole in Greenholtz v. Nebraska Penal Inmates.¹² The Court rejected the theory that the mere possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the general standards of eligibility to be dealt with in any particular way. On the other hand, the Court recognized that a parole statute could create an expectancy of release entitled to some measure of constitutional protection, although a determination would need to be made on a case-by-case basis,¹³ and the full panoply of due process guarantees is not required.¹⁴ However, when state statutes and regulations impose no obligation on the pardoning authority and thus create no legitimate expectancy of release, the prisoner may not demonstrate such a legitimate expectancy by showing that others have been granted release. The power of the executive to pardon or grant clemency is a matter of grace and is rarely subject to judicial review.¹⁵

Amdt14.S1.5.6.4 Prisoners and Procedural Due Process

In an 1871 case, the Supreme Court embraced a narrow view of prisoners’ due process rights, stating 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.”¹ However, that view is not currently the law.² In 1948, the Court declared that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” suggesting that some rights and privileges may remain.³ Subsequent cases make clear that the Due Process and Equal Protection Clauses apply to prisoners to some extent.⁴

The Court described its role in protecting the constitutional rights of prisoners in a 1972 case:

Federal courts sit not to supervise prisons but to enforce the constitutional rights of all

‘persons,’ which include prisoners. We are 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.⁵

While the Court has affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, concerns of federalism and judicial restraint have caused the Court to emphasize the necessity of deference to the judgments of prison officials and others responsible for administering such systems.⁶

Aside from challenges to conditions of confinement of pretrial detainees,⁷ the Court has normally analyzed constitutional challenges to general prison conditions under the Cruel and Unusual Punishments Clause of the Eighth Amendment,⁸ while challenges to particular incidents and practices proceed under the Due Process Clause⁹ or other provisions such as the First Amendment’s speech and religion clauses.¹⁰ Prior to formulating its current approach, the Court recognized several rights of prisoners. The Court has held that prisoners have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints,¹¹ and to bring actions in federal courts to recover for damages wrongfully caused by prison administrators.¹² They also have a right, circumscribed by legitimate prison administration considerations, to fair and regular treatment during their incarceration. Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline.¹³

In Turner v. Safley, the Court announced a general standard for measuring prisoners’ claims of deprivation of constitutional rights: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”¹⁴ The Court indicated that several considerations are appropriate in determining the reasonableness of a prison regulation. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security. Availability of other avenues for exercise of an inmate’s right supports a finding of reasonableness.¹⁵ A regulation is also more likely to be deemed reasonable if accommodation would have a negative effect on the liberty or safety of guards, other inmates,¹⁶ or visitors.¹⁷ On the other hand, “if an inmate claimant can point to an alternative that fully accommodated the prisoner’s rights at de minimis cost to valid penological interests,” it suggests the regulation is unreasonable.¹⁸

The Court has held that Fourth Amendment protection is incompatible with “the concept of incarceration and the needs and objectives of penal institutions”; hence, a prisoner has no reasonable expectation of privacy in his or her prison cell protecting him from “shakedown” searches designed to root out weapons, drugs, and other contraband.¹⁹ The Court has not totally blocked redress “for calculated harassment unrelated to prison needs,” as inmates may still seek protection under the Eighth Amendment or state tort law.²⁰ Existence of “a meaningful postdeprivation remedy” for unauthorized, intentional deprivation of an inmate’s property by prison personnel protects the inmate’s due process rights.²¹ The Court has held that negligent deprivation of life, liberty, or property by prison officials does not implicate due process at all.²²

A change to a prisoner’s housing conditions, including one imposed as a matter of discipline, may implicate a protected liberty interest if such a change imposes an “atypical and significant hardship” on the inmate.²³ In Wolff v. McDonnell, the Court articulated due process standards to govern prisoner discipline.²⁴ The Court held that due process applies but, because prison disciplinary proceedings are not part of a criminal prosecution, the full panoply of defendant rights is not available. Rather, the analysis must proceed by identifying the interest in “liberty” that the Due Process Clause protects. Thus, where the state provides good-time credit or other privileges and further provides for forfeiture of these privileges only for serious misconduct, the interest of the prisoner in this degree of liberty entitles him to the minimum procedures appropriate under the circumstances.²⁵ What the minimum procedures consist of is to be determined by balancing the prisoner’s interest against the valid interest of the prison in maintaining security and order in the institution, in protecting guards and prisoners against retaliation by other prisoners, and in reducing prison tensions.

The Court in Wolff held that a prison must afford the subject of a disciplinary proceeding “advance written notice of the claimed violation and a written statement of the factfindings as to the evidence relied upon and the reasons for the action taken.”²⁶ In addition, “an inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.”²⁷ Confrontation and cross-examination of adverse witnesses is not required inasmuch as these would threaten valid institutional interests. Ordinarily, an inmate has no right to representation by retained or appointed counsel. Finally, only a limited right to an impartial tribunal was recognized, with the Court ruling that imposing limitations on the discretion of a committee of prison officials sufficed for this purpose.²⁸ Revocation of good time credits, the Court later ruled, must be supported by “some evidence in the record,” but an amount that “might be characterized as meager” is constitutionally sufficient.²⁹

Determination of whether due process requires a hearing before a prisoner is transferred from one institution to another requires analysis of the applicable statutes and regulations as well as consideration of the particular harm suffered by the transferee. In one case, the Court found that no hearing needed to be held prior to transferring a prisoner from one prison to another prison in which the conditions were substantially less favorable. Because the state had not conferred any right to remain in the facility to which the prisoner was first assigned, prison officials had unfettered discretion to transfer any prisoner for any reason or for no reason at all.³⁰ The same principles govern interstate prison transfers.³¹

By contrast, transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest, although the due process requirements to protect this interest are limited.³² The Court has also held that transfer of a prisoner to a mental hospital pursuant to a statute authorizing transfer if the inmate suffers from a “mental disease or defect” must be preceded by a hearing. The Court first noted that the statute in that case gave the inmate a liberty interest, because it presumed that he would not be moved absent a finding that he was suffering from a mental disease or defect. Second, unlike transfers from one prison to another, transfer to a mental institution was not within the range of confinement covered by the prisoner’s sentence, and, moreover, imposed a stigma constituting a deprivation of a liberty interest.³³

Another case, Washington v. Harper, concerned the kind of hearing that is required before a state may force a mentally ill prisoner to take antipsychotic drugs against his will.³⁴ The Court held that a judicial hearing was not required. Instead, the inmate’s substantive liberty interest (derived from the Due Process Clause as well as from state law) was adequately protected by an administrative hearing before independent medical professionals, at which the inmate had the right to a lay advisor but not an attorney.