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Exploring constitutional ineffectiveness at sentencing

By Douglas A. Berman

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...continue to full post

Full post as published by Sentencing Law and Policy on May 14, 2009 (boomark / email).