The United States Supreme Court has made clear that “[t]he sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.”[40]   A number of important specific rights apply during the sentence hearing.[41]  Normally, the sentence hearing consists of legal and equitable arguments on both sides, followed by an opportunity for the defendant to address the court directly, followed by formal imposition of sentence by the court.  In some jurisdictions, the defendant has a right to call witnesses to establish facts of importance to the sentence processs, and in others, such as federal court, the right to an evidentiary hearing is discretionary with the court.

 

                This discussion will focus on (a) specific tactics defense counsel may use during a sentence hearing to attempt to avoid adverse immigration and penal consequences for the client, see § § 10.14-10.25, infra, and (b) various arguments in mitigation of sentence counsel may employ.  See § § 10.26-10.33, infra.

[40] Gardner v. Florida, 430 U.S. 349, 358 (1977). 

[41] See N. Tooby, Post-Conviction Relief for Immigrants § § 7.99-7.116 (2004).

SENTENCE " FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION " AUTHORITY TO ASSERT IT AFTER CONVICTION
Mitchell v. United States, 526 U.S. 314, 329"30, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (defendant maintains a right to remain silent at a federal sentencing hearing and a sentencing court may not draw an adverse inference from the defendant's silence in finding facts relating to the circumstances and details of a crime).