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Judges must tread carefully in sentencing more harshly where remorse is not shown

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Many judges focus on remorse, and the lack thereof, in sentencing. If a defendant has been wrongfully convicted, however, how may s/he show remorse?

In Maryland, at least, judges may consider remorse in deciding whether the defendant is a good candidate for rehabilitation. Jennings v. Maryland, 339 Md. 675  (1995).

A sentence that is based on a refusal to admit guilt is erroneous:

“[I]t is a violation of due process to punish a person for exercising a constitutional right. State v. Kelly (1994), 265 Mont. 298, 301, 876 P.2d 641, 644. Furthermore, we have followed federal law in holding that a defendant’s silence at criminal trial cannot be used as evidence against him. State v. Wilkins (1987), 229 Mont. 78, 81, 746 P.2d 588, 589 (citing Griffin v. California (1965), 380 U.S. 609, 614, 85 S. Ct. 1229, 1232, 14 L. Ed. 2d 106, 109). We have also held that the privilege against self incrimination “does not turn upon the type of proceeding in which its protection is invoked, but [rather] upon the nature of the statement or admission and the exposure which it invites.” Fuller, 276 Mont. at 160, 915 P.2d at 812 (citing Estelle v. Smith (1981), 451 U.S. 454, 462, 101 S. Ct. 1866, 1873, 68 L. Ed. 2d 359). Accordingly, the protection against self incrimination extends beyond trial to those already convicted of crime and applies to punishment as well as the determination of guilt. Fuller, 276 Mont. at 160, 915 P.2d at 812; Estelle, 451 U.S. at 462-63, 101 S. Ct. at 1872-73. Given these rules, this case presents the question of whether the rule against a negative inference from silence at criminal trial applies to sentencing as well, when the defendant has maintained his innocence throughout the proceedings.

State v. Shreves, 60 P.3d 991, 995 (Mont. 2002).

By the way, in winning an appellate reversal of his conviction, blogger Carlos Miller posted the appellate opinion, which shows that the sentencing judge crossed the impermissible line in the way he treated lack of remorse at sentencing.