CHAPTER 11 Sentencing CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Most sentencing decisions are made by a judge, though in some Sentencing—the imposition of a criminal sanction by a judicial authority. Most sentencing decisions are made by a judge, though in some cases, especially death-eligible cases, juries are involved. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Traditional Sentencing Options Imprisonment Fines Probation Death CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Sentencing Philosophies Form the basis for various sentencing strategies. Are intertwined with issues of religion, morals, values, and emotions. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Goals of Sentencing Five goals influence modern sentencing practices: Retribution Incapacitation Deterrence Rehabilitation Restoration CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Retribution … the act of taking revenge on a perpetrator. Early punishments were swift and immediate. Death and exile were common punishments. Retribution follows the Old Testament: “Eye for an eye.” (Lex Talionis) Retribution holds offenders personally responsible; they get their “just deserts.” CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Incapacitation …the use of imprisonment, or other means, to reduce the likelihood that an offender will be capable of committing future offenses. In ancient times, mutilation and amputation were used to incapacitate. Incapacitation requires restraint, not punishment. It is popular in the U.S., as evidenced by the increase in prison populations. (Some call this the “lock ‘em up” approach). CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Deterrence … a goal of criminal sentencing that seeks to inhibit criminal behavior through fear of punishment. It demonstrates that crime is not worthwhile. Overall goal is crime prevention. There are two types of deterrence: Specific General CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Deterrence Specific Deterrence Seeks to prevent recidivism—repeat offending by convicted offenders. General Deterrence Tries to influence the behavior of those who have not yet committed a crime yet may be tempted to. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Rehabilitation … the attempt to reduce the number of crimes by changing the behavior of offenders. Education, training, and counseling are some of the vehicles used. The ultimate goal is to reduce the number of offenses. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Restoration … a goal of criminal sentencing that attempts to make the victim “whole again.” Crime is a violation of a person as well as the state. Restorative justice addresses the needs of the victim. Sentencing options focus primarily on restitution payments. Vermont’s Sentencing Options Program uses reparative probation. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Sentencing Two models: Indeterminate Determinate (fixed) Different sentencing practices have been linked to each of the goals of sentencing. Two models: Indeterminate Determinate (fixed) CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Indeterminate Sentencing … A model of criminal punishment that encourages rehabilitation via the use of general and relatively unspecific sentences. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Indeterminate Sentencing Indeterminate sentencing allows judges to have a wide range of discretion. Sentences are often given in a range, i.e., “ten to twenty years.” Probation and parole are options. Degrees of guilt can be taken into account. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Criticisms of Indeterminate Sentencing Indeterminate sentencing gives inadequate attention to: Proportionality Equity Social debt Gain time, good time, and other allowances may result in release even before the lower limit has been served. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Structured Sentencing Structured sentencing developed, in part, as a response to the disparity in sentencing of the indeterminate model. Structured sentencing includes: Determinate sentencing Voluntary/advisory sentencing guidelines Commission-created presumptive sentencing CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Determinate Sentencing … A model of criminal punishment in which an offender is given a fixed term that may be reduced by good time or earned time. Under the model, for example, all offenders convicted of the same degree of burglary would be sentenced to the same length of time behind bars. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Determinate Sentencing Offender is given a fixed sentence length. The sentence can be reduced by “good time.” The use of parole is eliminated. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Voluntary/Advisory Sentencing Guidelines Recommended sentencing policies that are not required by law but serve as guides for judges. “Sentences” are based on past practices. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Commission Based Presumptive Sentencing … model of punishment that meets the following conditions: Proper sentence is presumed to fall within the range authorized by sentencing guidelines. If judges deviate from guidelines, they must provide written justifications. Sentencing guidelines provide for some review, usually by an appellate court. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Presumptive Sentencing Guidelines The federal government and 16 states now employ sentencing guidelines. Guideline jurisdictions generally allow judges to take into account aggravating and mitigating circumstances. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Aggravating and Mitigating Factors Circumstances relating to the commission of a crime that make it more grave than the average instance of that crime. Call for a tougher sentence. Mitigating Circumstances relating to the commission of a crime that may be considered to reduce the blameworthiness of the defendant. Call for a lesser sentence. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

…an important policy focus. Truth in Sentencing … a close correspondence between the sentence imposed upon an offender and the actual time served prior to release from prison. …an important policy focus. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Federal Sentencing Guidelines The U.S. Sentencing Commission Established under Sentencing Reform Act of 1984 and took effect in November 1987. 9 member commission set minimum sentences for certain federal offenses commission meets yearly to review guidelines. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Federal Sentencing Guidelines Purpose of the Guidelines is to: Limit federal judges’ discretion Reduce disparity Promote consistency and uniformity Increase fairness and equity CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Federal Guideline Provisions Guidelines specify a sentencing range from which judges must choose. Judges may depart from the guidelines in “atypical” cases. Aggravating and mitigating circumstances are taken into consideration. Guidelines are presented in a matrix-like sentencing table. Overlapping levels Criminal history and offense level determine sentence CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

The career offender receives harsher sentences. … requires a defendant to: Be at least 18 at time of offense Commit a crime of violence or to traffic in a controlled substance Have at least two prior felony convictions for crimes of violence or trafficking CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Deal v. U.S. (1993) An offender may be adjudged, and sentenced as, a career criminal in a single hearing. “We see no reason why the defendant should not receive such a sentence, simply because he managed to evade detection, prosecution, and conviction for the first five offenses and was ultimately tried on all six in a single proceeding.” CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Mandatory Sentencing Mandatory sentences are a form of structured sentencing that allows NO leeway in the sentence required for a crime. Takes away judicial discretion Results in less plea-bargaining and more trials. Have led officials to make earlier and more selective arrest, charging, and diversion decisions. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Three Strikes Laws Some states have “Three Strikes Laws,” which require mandatory sentences (sometimes life without parole) when convicted of third serious felony. The intent is to deter known and potentially violent offenders and to incapacitate repeat criminals for long periods of time. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Innovations in Sentencing Some judges are paying closer attention to alternative sentencing strategies. Judges in certain jurisdictions have begun to use the wide discretion in sentencing available to them and impose truly unique sentences, many of which involve shaming. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Presentence Investigation (PSI) Report PSI Reports provide judges with the backgrounds on convicted defendants awaiting sentencing. Typically, prepared by probation or parole officers. Include a sentencing recommendation. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Remembering the Victim A grassroots movement began in the 1970s. Today, victims’ assistance programs help victims understand the system and their rights, get counseling, file civil suits, and recoup financial losses. Victim rights advocates want to add an amendment to the U.S. Constitution. 30 states have amended their constitutions. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Crime Victims’ Rights Act The Crime Victims’ Rights Act is part of the Justice For All Act of 2004. It grants victims of federal crimes the right to: Be reasonably protected from the accused. Reasonable, accurate, and timely notice of any public proceeding involving the crime, or any release or escape of the accused. Be included in any such public proceeding. Be reasonably heard at any public proceeding involving release, plea, or sentencing. Confer with the federal prosecutor handling the case. Full and timely restitution as provided by law. Proceeding free from unreasonable delay. Be treated with fairness and with respect for the victim’s dignity and privacy. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458

Victim Impact Statements The victims’ rights movement also called for the use of victim impact statements before sentencing. These statements: Are generally in written form. Provide descriptions of losses, suffering, and trauma experienced by victims or their survivors. Are designed to help judges make sentencing decisions. CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ 07458