“Post-Conviction” defined: In the United States legal system, the term “post-conviction” refers to the legal process which takes place after a criminal trial results in a conviction of the defendant, or where a defendant accepts a plea of guilty or no-contest. After conviction, a court will proceed with sentencing the defendant. In the criminal justice system, once a defendant has received a guilty verdict, he or she can then challenge a conviction or sentence. This takes place through different legal actions, known as filing an appeal or a state and/or federal habeas corpus proceeding. The goal of these proceedings is exoneration, or modification of an excessive and/or illegal sentence. If lacking representation, the defendant may consult or hire an attorney to exercise his or her legal rights.

The United States Supreme Court has held that all defendants convicted in a U.S. court, whether it be state or federal, are entitled to the appointment of counsel on the direct appeal only. Once the direct appeal is final, further representation may be obtained at the defendants personal expense. The post-conviction process is in place to protect both innocent and guilty individuals, from inherent human error in the criminal justice system. One study cites 10,000 innocent people are convicted each year in the United States, and tens of thousands (possibly more), receive illegally imposed sentences in excess of what the law allows.

The Appellate Process: The appeals process is the request for a formal change of a decision made by a court of law. The litigant who files the appeal is known as the “appellant.” A successful appeal must demonstrate to a higher court that the trial court made a decision affected by legal error. The appellate procedure in the United States takes place in appellate court, which makes its judgment based only on the record of the original case. The appellant generally submits a document of legal arguments called a “brief,” a written attempt to persuade the judges of appellate court that the decision of the trial court should be reversed. If selected for an “oral argument,” appellants may present a short spoken argument to the court. No additional pieces of evidence or witnesses are considered. All additional evidence that was not presented to the court during the trial must be submitted in a post-conviction proceeding only.

The inherent problem with the appellate process is that it is limited to the “four-corners” of what happened at the trial; additional evidence is not allowed. Therefore, the vast majority of appeals are denied. As such, if trial counsel made a series of mistakes, the fact of the errors may be admitted on appeal, but counsels reasoning may not be as it goes to his or her state of mind. The only way to introduce evidence of why counsel failed to do something, or why counsel chose to commit an error, is by way of a post-conviction proceeding such as a petition for writ of habeas corpus. In some cases, the courts may consolidate an appeal with a habeas corpus proceeding, but this is usually reserved only for select capital cases only.

The ruling made by the appellate court is usually final. The decision of the appellate court generally affirms the original decision of the trial court. Unfortunately, 90% of civil and criminal appeals are denied in the United States. If the appeals process is unsuccessful, a convicted person may pursue other options, depending upon the severity of his or her sentence and the crime committed.

State-Level Writs / Post Conviction Procedures: Writs are directives from a higher court to a lower court or government official, and are only issued when the one seeking the writ (the moving party) has no other options. Most states in the United States allow convicted parties to file several specific writs (legal actions). These writs require that the detainee be considered by a judge or court, and are in place to prevent unconstitutional imprisonment.

Also known as the “great writ’ Habeas Corpus writs are most common. Many countries, including the United States, Australia, New Zealand, Malaysia and Canada have adopted the practice from English common law. Habeas corpus is a judicial mandate to a prison official which orders that an inmate be brought to trial to determine whether the imprisonment is lawful and if it should continue. Typically, an inmate will argue that his imprisonment is unconstitutional. While habeas corpus can be filed in state or federal court, all state avenues must be exhausted first.

Habeas Corpus is the most powerful remedy in the United States today to remedy illegal confinement based upon wrongful convictions, illegal sentences and other systematic errors. Some of the most common errors exposed by habeas corpus are prosecutorial misconduct, ineffective assistance of trial/appellate counsel, ineffective assistance of counsel during the plea proceedings, judicial misconduct, erroneous DNA evidence and new evidence previously unavailable. In a habeas proceedings, additional evidence may be presented that otherwise would be inadmissible on an appeal. Many states have strict rules for habeas corpus practice and procedure including time limits, repeat filings and other “procedural bars.”

Many other post-conviction remedies are available at the state level including motion to correct illegal sentence; motion to reduce sentence; writ of error coram nobis; motion for DNA testing; challenges to parole hearings; certorari and many others.
Federal Writs

In the United States federal court system the writ of habeas corpus is used most frequently to review state court convictions. Federal statutes (28 U.S.C. §§ 2241–2256) outline the procedural aspects of federal habeas corpus proceedings for both inmates convicted in state courts seeking review of their exhausted claims in a federal district court, and inmates convicted in a United States federal district court.

Should a habeas corpus petition (or similar proceeding), be denied at the district court, an appeal may be filed to the federal court of appeals which may review the petition, send it back to the district court with instructions, deny it or order other relief as necessary.

Additionally, the Supreme Court of the United States may use the certiorari writ to review United States Courts of Appeals cases or cases from state courts. Error coram nobis is another writ issued only rarely at the federal level in cases of federal criminal convictions when “no other remedy is available.” This process is similar to the state writ process, though inmates must consume all state appeals and writ options before moving forward. This is an extremely important part of the legal strategy, especially for those inmates who have legitimate claims.

Innocence Work / Sentencing Disparity / Illegal Sentences: Overturning a conviction after dozens of appeals and petitions have been denied is notoriously difficult, though prisoners have some options at their disposal. They can still attain freedom if legitimate innocence can be proven. The most common method is by using DNA evidence to disprove a crime that happened before DNA testing was a viable option. The Innocence Project, founded to exonerate those convicted wrongfully, has found more than 300 post-conviction DNA exonerations in the history of the United States. Attorneys can file a motion to introduce strong new evidence to the courts. Other common innocence efforts center on victim recantations if applicable.

Sentencing disparity is defined as “a form of unequal treatment that is often of unexplained cause and is at least incongruous, unfair and disadvantaging in consequence”. It is important to distinguish disparity from differences that arise due to legitimate use of discretion in the application of the law and those differences that arise due to discrimination or other, unexplained, causes unrelated to the issues found in the specific criminal case. These other “discretionary” sentencing procedures many times are imposed in excess of what the law allows and may be challenged with a successful challenge resulting in a reduction of time to be served by the inmate.

Sentencing disparity is a major problem because two judges could be faced with a similar case and one could give an extremely unfair and unnecessary verdict, whereas another would give a much lesser sentence. A 2006 study by Crow and Bales gives evidence of sentencing disparity: The Florida Department of Corrections gave statistics of those prisoners who received probation or community control in the period 1990–1999. Prisoners were categorized as Blacks and Hispanics or Whites/Non-Hispanics. The study found that the Blacks and Hispanics received more intense and harsher penalties than the White/Non-Hispanic group. A 2001 University of Georgia study found substantial disparity in criminal sentencing men and women received “after controlling for extensive criminological, demographic, and socioeconomic variables”. The study found that “blacks and males are… less likely to get no prison term when that option is available; less likely to receive downward departures [from the guidelines]; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites and females”. Whether one is a victim of sentencing disparity or an outright illegal sentence, post-conviction procedures are many times the only remedy to address, and fix this problem.

Capital Cases: Cases that involve the death penalty are especially significant in the post conviction stage. These inmates will often file numerous appeals to courts at every level. In these unique cases, inmates can file an appeal which could be reviewed by the United States Supreme Court. The court has the ability to stay the execution if some legal flaw in the original trial comes to light such as prosecutorial misconduct, ineffective counsel or many other egregious violations. The Court does not often exercise this power, though several individuals from around the world sentenced with capital punishment have been exonerated in the past thirty years.

Inmates in this position can also file for clemency or pardon. Practices vary from state to state, but the clemency process usually requires the governor or board of advisors or both. Since 1976 more than 273 death row inmates have been granted clemency for humanitarian reasons. These include doubts about the petitioner’s guilt or a governor’s personal stance on capital punishment.