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May 14, 2009

Exploring constitutional ineffectiveness at sentencing

Professor Carissa Byrne Hessick now has posted here on SSRN a great new paper on a sentencing topic I have always found very interesting (and underexplored in both caselaw and the academic literature). This piece is titled simply "Ineffective Assistance at Sentencing," and here is the abstract:

The legal standards for reviewing claims of ineffective assistance at sentencing are underdeveloped.  In other contexts, defendants seeking to prove ineffective assistance must demonstrate that counsel's performance fell below appropriate professional standards and that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.  The doctrinal uncertainty whether that standard applies to sentencing proceedings in non-capital cases, coupled with worries that ineffective assistance at sentencing claims will result in a flood of litigation, has led some courts to require defendants to satisfy stricter prejudice standards in discretionary non-capital sentencing regimes.

This Article analyzes the ineffective assistance jurisprudence and concludes that the sufficiency of counsel's performance is largely evaluated against a backdrop of relevant substantive law.  The substantive law of non-capital sentencing is not well-developed, which may explain the underdeveloped state of ineffective assistance at sentencing standards. Drawing on several recent ineffective assistance cases in the death penalty context, this Article identifies legal principles and practices that may assist in making the legal assessments necessary to analyze ineffective assistance at sentencing claims.  These principles and practices may provide a sufficient legal framework to render unnecessary the crude manipulation of the prejudice showing that some courts have employed.

May 14, 2009 at 09:57 AM | Permalink


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The argument sounds pretextual. "I did not get the Dream Team, so I should be released. There should be an additional.element. Strong, new evidence the verdict was wrong.

Posted by: Supremacy Claus | May 14, 2009 2:21:37 PM

A bill has been filed 0n March 12 09 by Congressman Denny Davis D.ILL H.R.1475.Federal Prison work Incentive act of 2009 latest actions.
You can see it on http://www.govtrack.us/congress/bill.xpd?bill+h111-1475.
It is still with the judiciary committe,if it passes it will reduce the sentence time.
Please write to your representive to push this bill.
Thank you.

Posted by: Usha Mathur | May 19, 2009 11:51:42 AM

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