Derek Chauvin sentencing: Jail time for George Floyd's killer could increase if he appeals

If the US criminal law is considered, Derek Chauvin's plan to appeal could backfire and he could end up with an extended sentence compared to his original one. Here's why


                            Derek Chauvin sentencing: Jail time for George Floyd's killer could increase if he appeals
Derek Chauvin delivers his remarks before Judge Peter Cahill announced his sentence (YouTube)

Former Minneapolis police officer Derek Chauvin was sentenced to 22.5 years in prison on Friday, June 25, for the murder of George Floyd. It is not yet clear if the ex-cop's team plans on appealing his sentence. But in case he does, could he be handed a longer sentence?

In April, Chauvin became the first white officer in Minnesota to be convicted of killing a Black man after a jury found Chauvin guilty on all counts — second-degree murder, third-degree murder, and manslaughter. According to experts who track police killings, lesser than a dozen officers around the country have been sentenced for murder, according to MPR News. Sentences for former police officers convicted in on-duty murders have ranged from 81 months in prison to a life sentence, according to research from professor Philip Stinson from the Bowling Green State University. 

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In this photo provided by the Minnesota Department of Corrections, former Minneapolis police officer Derek Chauvin poses for a booking photo after his conviction April 21, 2021 in Minneapolis, Minnesota. (Photo by Minnesota Department of Corrections via Getty Images)

Typically, the process of appealing the sentence could begin soon after the judge hands down the punishment. In Chauvin's case, he will have 90 days to appeal his sentencing. If Chauvin and his defense team appeal, then the Minnesota Court of Appeals will have a year to give its decision. Although Chauvin’s attorney made a record on contentious issues, including the influence of pretrial publicity on the conviction verdict, Chauvin was not granted a retrial - a decision which came merely hours after his sentencing was scheduled to start. However, all of the points of contention from the defense could be revisited during the appeal.

Can Derek Chauvin's appeal backfire?

If the US criminal law is considered, Derek Chauvin's plan to appeal could backfire and he could end up with an extended sentence compared to his original one if he were to lose in the retrial. According to Washington and Lee Law review, "Under current criminal practice whenever a defendant seeks reversal of his conviction and a retrial, he subjects himself to the risk of an increased sentence upon retrial."

The report explained that a trial judge may increase a defendant's sentence following his conviction on retrial in two ways. First, by increasing the length of the original sentence and second, by denying the defendant credit for time served under the invalidated sentence. There are a number of reasons why a judge might increase the defendant's sentence.

A mural painted by artist Kenny Altidor depicting George Floyd is unveiled on a sidewall of CTown Supermarket on July 13, 2020 in the Brooklyn borough New York City. (Photo by Stephanie Keith/Getty Images)

For example, during the new trial, the state may present more damaging evidence against the defendant. The defendant's conduct before and during his new trial also impacts the sentencing. There is also the question of the judge at the second trial, whose ideas about sentencing might differ from the one at the original trial. The defendant may get convicted of different charges on retrial. Courts have generally permitted an increase due to a variety of reasons. 

Patton v. North Carolina

However, this is not to say that there have not been exceptional cases where courts have found that an increased sentence was wrongly imposed. One such landmark case was Patton v. North Carolina, where the United States Court of Appeals for the Fourth Circuit recognized that a defendant should not have to face the possibility of augmented punishment on retrial.

In that case, the defendant was convicted in the Superior Court of Bladen County, North Carolina in October 1960, of armed robbery. He was originally sentenced to twenty years in prison. He was was awarded a new trial in April 1964, after he obtained a post-conviction hearing. On February 17, 1965, the defendant was retried, convicted, and again sentenced to twenty years in prison.

"At the time, he had served nearly five years of his original sentence. The judge in pronouncing the sentence stated that he would give the defendant five more years than he had been given originally, but since he had served nearly five years he would credit that time against the new sentence. Thus, the defendant was again sentenced to twenty years. In August 1965, the defendant sought and obtained federal habeas corpus relief. On the state's appeal, the court held that it was a violation of the due process, equal protection, and double jeopardy clauses of the United States Constitution to increase the defendant's sentence on retrial. Therefore, the court concluded that the defendant must be given credit for all time served under the invalidated sentence and that his original sentence could not be increased," the law review read.

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