Punishment and Sentencing 9 CHAPTER Punishment and Sentencing

The Purposes of Sentencing Retribution Those who commit criminal acts should be punished based only on the severity of the crime and that no other factors need be considered Relies on the practice of just deserts (proportionality) Deterrence Preventing future crime through the threat of punishment General v. Specific Incapacitation Preventing crime by detaining wrongdoers in prison, separating them from the community Rehabilitation Providing wrongdoers the resources they need to eliminate criminality from their behavioral pattern Learning Objective #1: List and contrast the four basic philosophical reasons for sentencing criminals.

Discussion Question #1 Restorative justice is a more recent philosophy of sentencing that focuses on repairing the damage that a crime does to the victim, the victim’s family and society as a whole. Relies on the efforts of the offender to “undo” the harm caused by the criminal act. If you were a crime victim, would you be open to meet with your offender to discuss and better understand the circumstances of the crime? Are there specific crimes where you believe restorative justice practices are more appropriate than others? Learning Objective #1: List and contrast the four basic philosophical reasons for sentencing criminals.

The Structure of Sentencing Legislatures make laws and determine types and lengths of sentences Indeterminate Sentencing A practice in which the sentence of a convicted person identifies a minimum and maximum time to be served, rather than a specific time to be served Determinate Sentencing A practice in which the period of incarceration for specific crimes is fixed by a sentencing authority & cannot be reduced by judges Learning Objective #2: Contrast indeterminate with determinate sentencing.

The Structure of Sentencing “Good time” Reduction in time served by prisoners based on good behavior, conformity to rules, & other positive actions Truth-in-Sentencing Law A legislative attempt to ensure that convicts will serve approximately the terms to which they were initially sentenced Many states require offenders to serve at least 85% of their sentence With overcrowded prisons, some states are reconsidering their truth in sentencing laws

Judicial Sentencing Authority Throughout the pretrial procedures and actual trial the judge is somewhat passive At the sentencing hearing the judge now has the ultimate authority to determine the defendant’s fate Within legislative restrictions, judges have judicial discretion in choosing the appropriate form of punishment: Capital Punishment Imprisonment Probation Fines Other Forms of Punishment

Discussion Question #2 Recently judges have handed down “creative sentences” Some of these have included requiring a man convicted of battery against his wife to take her to Red Lobster and to go bowling. Another judge sentenced a man to hold a sign stating “I am a bully” after bullying a neighbor and his family for a period of 15 years. What are your thoughts on these creative sentences? What purpose of sentencing do you think they accomplish? Note: Students can watch https://www.youtube.com/watch?v=sSe1gBGHveU to see the sentence of the defendant holding a sign that he is a bully.

The Sentencing Process The two main participants in the “sentencing ritual” are the judge & the defendant Other participants include: Probation officer Defense & Prosecuting Attorneys Jury The presentence investigative report Compiled by a probation officer Assists the judge in determining the appropriate sentence Includes past history and sentencing recommendation Sentencing and the Jury Juries decide the sentence in most capital cases Judges give the jury instructions on the range of penalties available Learning Objective #3: State who has the input into the sentencing decision, and list the factors that determine a sentence.

The Sentencing Process Factors of sentencing: Seriousness of the crime Conviction offense v. “real offense” Aggravating circumstances Leads to harsher sentence Mitigating circumstances Leads to a lighter sentence Judicial philosophy Sometimes a judge’s personal sentencing philosophy will prove unpopular Learning Objective #3: State who has the input into the sentencing decision, and list the factors that determine a sentence.

Aggravating and Mitigating Circumstances

Inconsistencies in Sentencing Sentencing Disparity: When those convicted of similar crimes do not receive similar sentences Sentencing Discrimination: When the sentence is influenced by extralegal variables Gender Race Economic standing Learning Objective #4: Explain some of the reasons underlying the need for sentencing reform.

Inconsistencies in Sentencing Three ways disparity occurs: Offenders receive similar sentences for different crimes of unequal seriousness Offenders receive different sentences for unequal crimes Mitigating or aggravating circumstances have a disproportionate effect on sentencing Learning Objective #4: Explain some of the reasons underlying the need for sentencing reform.

Inconsistencies in Sentencing Sentencing Discrimination: The “Punishment Penalty” Rates of imprisonment rise significantly for those who are young, minority, and unemployed The Chivalry Effect Women convicted of crimes are less likely to go to prison than their male counterparts and those who are incarcerated tend to serve shorter sentences

Sentencing Reform Judicial discretion has both pros and cons Allows judges to impose a variety of sentences Could allow for a judges’ subjective biases Critics of judicial discretion believe the costs outweigh its benefits and call for sentencing guidelines Require judges to dispense legislatively determined sentences based on the seriousness of the crime and the offender’s prior record State Sentencing Guidelines First created in Minnesota in 1978; now 28 states have some form of guidelines Federal Sentencing Guidelines Congress passed the Sentencing Reform Act in 1984 to pave the way for federal sentencing guidelines Judicial Departures Allows judges to adjust a sentence decision based on special circumstances of a particular case

Sentencing Guidelines Grid

Sentencing Reform Mandatory Sentencing Guidelines Laws passed by politicians that limit judge’s power to deviate from determinate sentencing laws Habitual Offender Laws “Three Strikes” Laws 46 states have some form of mandatory sentencing law Unpopular with judges

Victim Impact Evidence A victim impact statement (VIS) A statement to the sentencing body in which the victim is given the opportunity to describe how the crime has affected her or him Have been controversial especially when used in the sentencing phases of death penalty cases Learning Objective #5: Identify the arguments for and against the use of victim impact statements during sentencing hearings.

Victim Impact Evidence Pros Gives survivors a voice in the process Therapeutic benefits for victim Helps judges/juries appreciate all the consequences of the crime Cons Interjects prejudicial evidence into the sentencing process Brings unacceptable levels of emotion into the courtroom Learning Objective #5: Identify the arguments for and against the use of victim impact statements during sentencing hearings.

Capital Punishment The use of the death penalty to punish wrongdoers for certain crimes Methods of Execution Electrocution Lethal Gas Hanging Firing squad Lethal injection

Capital Punishment The Death Penalty and the Supreme Court Weems v. United States (1910) Clarified the meaning of “cruel and unusual” punishment Baze v. Rees (2008) The mere possibility of pain “does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” punishment There are current legal challenges by death row inmates over the methods being utilized and in particular the drugs being used for lethal injection

Discussion Question #3 In July 2014, Joseph Wood was executed in Arizona. Reports indicate that he gasped and struggled for breath for close to two hours before dying after being injected with the lethal chemicals. His “botched” execution is reinvigorating the national debate over the death penalty. Do you think that an execution that takes nearly two hours to complete violates the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment? Note: Students can debate the current use of lethal injection and if it violates that 8th Amendment to the U.S. Constitution.

Capital Punishment Death Penalty Sentencing Furman v. Georgia (1972) put a moratorium on the death penalty declaring that the death penalty as administered by states violated the Eighth Amendment Provided states the opportunity to bring their death penalty statutes up to constitutional standards including a bifurcated process Two stage procedure for capital cases Jury determines guilt in the first phase In the second phase the jury reconvenes and considers aggravating and mitigating factors in the sentencing phase Can vote for the death penalty or life in prison Learning Objective 6: Identify the two stages that make up the bifurcated process of death penalty sentencing.

Capital Punishment

Capital Punishment The Jury’s Role Juries must be involved in both stages of the bifurcated process Alabama is the only state that routinely allows a measure of judicial discretion when it comes to capital punishment where the judge can overrule the jury Mitigating Circumstances will prevent a defendant found guilty of first degree murder from receiving the death penalty Insanity – prohibited in 1986 Mental Retardation (Atkins v. Virginia – 2002) Age (Roper v. Simmons – 2005) Learning Objective 7: Explain why the U.S. Supreme Court abolished the death penalty for juvenile offenders.

Capital Punishment Debating the Sentence of Death Deterrence Fallibility Arbitrariness Discriminatory Effect Learning Objective #8: Describe the main issues of the death penalty debate.

Capital Punishment

Capital Punishment The Immediate Future of the Death Penalty Reasons for the Decline in Executions: Atkins (2002) and Roper (2005) cases United States Supreme Court removed the possibility that hundreds of mentally handicapped and juvenile offenders could be sentenced to death Public Opinion and the Death Penalty Maryland was the 6th state in six years to end capital punishment The Supreme Court has shown no interest in holding that the death penalty itself is unconstitutional Public support for the death penalty has been steadily dropping since the mid-1990s Poll in 2013 showed that 60% of Americans still favor the practice Drops to 48% when the choice is between death and a life prison sentence without parole

Discussion Question #4 Do you support the use of the death penalty for someone who is found guilty of a first degree premeditated murder? Are there other crimes that you believe are worthy of the death penalty? The majority of countries worldwide no longer allow for the practice of the death penalty. Why do you think the United States continues to use the death penalty when most countries have abolished the practice? Note: This discussion will show students how public opinion polls are administered and be able to give their opinion concerning the death penalty. Also, students will discuss how the United States compares to other nations in its use of the death penalty.