Chapter 3 Sentencing: To Punish or to Reform?

Learning Objectives Describe the central purpose of criminal punishment Name the seven goals of criminal sentencing List and explain the sentencing options in general use today

Learning Objectives (continued 1) Describe the characteristics of persons on death row today Summarize the research on victim race and capital punishment Summarize the changes in the public’s attitudes toward capital punishment

Learning Objectives (continued 2) Discuss the changes in the application of capital punishment as a result of Furman v. Georgia and Gregg v. Georgia Explain the death penalty appeals process Summarize Liebman’s findings on the frequency of errors in capital punishment cases

Learning Objectives (continued 3) Explain the Supreme Court’s reasoning for banning the execution of persons with mental retardation and juveniles Discuss federal and state sentencing trends and reforms Integrate the four principles related to fairness in sentencing for a hypothetical offense and offender

Sentencing Imposition of a criminal sanction by a sentencing authority Sentence: Penalty a court imposes on a person convicted of a crime Social order: Smooth functioning of social institutions, positive relations among individual members of society, and orderly functioning of society as a whole

Goals of Sentencing Revenge: Punishment as vengeance Emotional response to real or imagined injury or insult Retribution: Retaliation against a criminal perpetrator Belief that victims are entitled to reprisal Just deserts: Punishment deserved Offenders are morally blameworthy and hence deserving of punishment

Goals of Sentencing (continued 1) Deterrence: Discouragement or prevention of crimes through the fear of punishment Specific deterrence: Deterrence of the individual being punished from additional crimes General deterrence: Use of the example of individual punishment to dissuade others from committing crimes

Goals of Sentencing (continued 2) Pleasure-pain principle: Idea that actions are motivated primarily by a desire to experience pleasure and avoid pain Incapacitation: Use of imprisonment or other means to reduce an offender’s capability to commit future offenses Three-strikes laws Truth in sentencing

Goals of Sentencing (continued 3) Rehabilitation: Changing of criminal lifestyles into law-abiding ones Involves correction of behavior through treatment, education, and training Reintegration: Process of making the offender a productive member of the community

Goals of Sentencing (continued 4) Restoration: Process of returning to their previous condition all those involved in or affected by crime Restorative justice: Systematic response to wrongdoing that emphasizes healing the wounds of victims, offenders, and communities caused or revealed by crime Victim-impact statement: Description of the suffering that a crime has caused victims

Restorative Justice or Community Justice Programs Victim–offender mediation Victim–offender reconciliation Victim-impact panels Restorative justice panels Community reparative boards Community-based courts Family group conferences Circle sentencing Court diversion programs Peer mediation

Sentencing Options Probation Intermediate sanctions Jail and prison Parole Capital punishment Restitution: Payments made to the victim by a criminal offender as compensation for the harm caused

Types of Sentences Mandatory sentences: Sentences required by law under certain circumstances Consecutive sentences: Sentences served one after the other Imposed when a person is convicted of multiple offenses Concurrent sentences: Sentences served together

Types of Sentences (continued 1) Flat sentences: Specify an amount of time to be served in custody and do not allow variation from the time specified Indeterminate sentences: Judge specifies a maximum and minimum length of time, and a parole board determines the actual time of release

Types of Sentences (continued 2) Determinate sentence: Sentence of a fixed term of incarceration Can be reduced by good time Good time - Amount of time prison authorities deduct from a sentence for good behavior or other reasons Presumptive sentence: Expected sentence Developed by a sentencing commission

Types of Sentences (continued 3) Sentencing commission: Creates a schedule of sentences that reflect the gravity of the offenses committed and the prior record of the offender Sentencing enhancements: Legislatively approved provisions that mandate longer prison terms: For specific criminal offenses committed under certain circumstances Because of an offender’s past criminal record

Capital Punishment Lawful imposition of the death penalty Was once common throughout the world Began changing in the 18th century during the Enlightenment

Exhibit 3.4 - Jurisdictions with and without the Death Penalty

Exhibit 3.5 - People Executed, 1976–2015

Exhibit 3.6 - Characteristics of Prisoners Under Sentence of Death, January 1, 2016

Victim Race and Capital Punishment Victim race has a high impact on the jurisdiction

Methods of Execution Lethal injection Electrocution Lethal gas Hanging Firing squad

Arguments for and against the Death Penalty Pros Deters people from committing crime Just punishment for murder Constitutionally appropriate Reduces time spent on death rows, thereby reducing costs Protects society More humane than life imprisonment It is almost impossible for an innocent person to be executed Cons Does not deter crime Violates human rights Falls disproportionately on racial minorities Costs too much Boosts the murder rate leading to the brutalizing effect Not everyone wants vengeance Arbitrary and unfair

Courts and the Death Penalty Mandatory death penalty Death sentence that the legislature has required to be imposed upon people convicted of certain offenses Guided discretion Decision making bounded by general guidelines, rules, or laws Bifurcated trial Two separate hearings for different issues in a trial, one for guilt and the other for punishment Mitigating circumstances Factors that may reduce the culpability of the offender Aggravating circumstances Factors that may increase the culpability of the offender

Appealing the Death Penalty Legal issues about the trial and sentence are appealed to the state appellate courts Serious error: Error that substantially undermines the reliability of the guilt finding or death sentence imposed at trial If the defendant’s direct appeals are unsuccessful and the Supreme Court denies review, state postconviction appeals begin

Exhibit 3.8 - The Capital Criminal Process: Trial through State and Federal Postconvictions

Appealing the Death Penalty (continued) AEDPA defines filing deadlines and limits reasons for second, or successive, federal appellate reviews to: New constitutional law New evidence that could not have been discovered at the time of the original trial New facts that, if proven, would be sufficient to establish the applicant’s innocence

Wrongful Convictions and Capital Punishment Errors found by the Liebman study Incompetent defense lawyering Prosecutorial suppression of evidence Cost of serious errors Danger to society Monetary settlements

Exhibit 3.9 - The Attrition of Capital Judgments

Reforms Suggested to Avoid Wrongful Convictions Require proof beyond any doubt that the defendant committed the capital crime Require that aggravating factors substantially outweigh mitigating ones Bar the death penalty for people with extenuating circumstances Make life imprisonment without parole an alternative to the death penalty Abolish judge overrides of jury verdicts imposing life sentences

Reforms Suggested to Avoid Wrongful Convictions (continued) Use comparative review of murder sentences Base charging decisions in potentially capital cases on full and informed deliberations Make all police and prosecution evidence available to the jury at trial Insulate capital sentencing and appellate judges from political pressure Identify, appoint, and compensate capital defense counsel to attract well-qualified lawyers

Banning the Execution of People with Mental Retardation Held by court as cruel and unusual punishment prohibited by the Eighth Amendment Courts left the definition of mental retardation up to individual states IQ score of 70 or below is generally considered an indicator of mental retardation

Juveniles and the Death Penalty Unconstitutional and in violation of the Eighth Amendment Reasons for being banned Reflects evolving standards of decency that mark the progress of a maturing society Juveniles are not the same as adults even though the crimes might be the same Out of line with other developed countries

Sentencing Trends and Reforms Reduced disparity in the amounts of powder and crack cocaine offenses Mandatory minimum sentencing

Fair Sentencing Sentencing practices that incorporate fairness for both victims and offenders

Issues in Sentencing Proportionality Severity of punishment should match the seriousness of the crime Equity Similar crimes and offenders should be treated alike