Sentencing, Appeals, and the Death Penalty Chapter 9 Sentencing, Appeals, and the Death Penalty Copyright © 2018 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

Chapter Objectives, 1 After completing this chapter, you should be able to do the following: Identify the general factors that influence a judge’s sentencing decisions Describe how judges tailor sentences to fit the crime and the offender Distinguish between indeterminate and determinate sentences Explain the three basic types of determinate sentences

Chapter Objectives, 2 List five rationales or justifications for criminal punishment Explain the purposes of presentence investigation reports List the legal bases for appeal Identify the type of crime for which death may be a punishment Summarize the three major procedural reforms the U.S. Supreme Court approved for death penalty cases in the Gregg decision

Sentencing, 1 If a criminal defendant pleads guilty or is found guilty by a judge or jury, then the judge (or sometimes a jury) must impose a sentence

Table 9.1: Time from Conviction to Sentencing for Convicted Defendants by Most Serious Conviction Offense, 2009, 1 Most serious conviction offense Number of defendants Percent of convicted defendants sentenced within 1 day Percent of convicted defendants sentenced within 1 month Percent of convicted defendants sentenced within 2 months All offenses 31,141 65 % 82% 93% All felonies 25,940 60% 78% 92% Violent offenses 4,795 48% 74% 90% Murder 117 31 68 83 Rape 137 37 87 Robbery 1,458 47 73 86

Table 9.1: Time from Conviction to Sentencing for Convicted Defendants by Most Serious Conviction Offense, 2009, 2 Most serious conviction offense Number of defendants Percent of convicted defendants sentenced within 1 day Percent of convicted defendants sentenced within 1 month Percent of convicted defendants sentenced within 2 months Assault 1,929 51 77 93 Other violent 1,155 48 71 91 Property offenses 7,869 62% 79% 92% Burglary 2,245 67 79 Larceny/theft 2,314 84 95 Motor vehicle theft 725 58 82 94

Table 9.1: Time from Conviction to Sentencing for Convicted Defendants by Most Serious Conviction Offense, 2009, 3 Most serious conviction offense Number of defendants Percent of convicted defendants sentenced within 1 day Percent of convicted defendants sentenced within 1 month Percent of convicted defendants sentenced within 2 months Forgery 658 50 73 90 Fraud 809 52 69 Other property 1,118 66 83 94 Drug offenses 8,980 67% 83% 95% Trafficking 3,939 61 78 92 Other drug 5,041 71 86 96

Table 9.1: Time from Conviction to Sentencing for Convicted Defendants by Most Serious Conviction Offense, 2009, 4 Most serious conviction offense Number of defendants Percent of convicted defendants sentenced within 1 day Percent of convicted defendants sentenced within 1 month Percent of convicted defendants sentenced within 2 months Public-order offenses 3,980 59% 78% 93% Weapons 1,068 54 76 93 Driving-related 1,387 60 77 92 Other public-order 1,525 61 79 Misdemeanors 5,501 83% 90% 96% Note: Data on time from conviction to sentencing were available for 96% of convicted defendants. Total for all felonies includes 17 cases that could not be classified into 1 of the 4 major offense categories; Source: Bureau of Justice Statistics, State Court Processing Statistics, 2009

Table 9.2: Distribution of Types of Felony Sentences Imposed in State Courts, by Most Serious Conviction Offense, 2009, 1 Most serious conviction offense Total Incarceration (Total) Incarceration (Prison) Incarceration (Jail) Nonincarceration (Total) Nonincarceration (Probation) Nonincarceration (Other) All felonies 100% 75% 42% 33% 25% 24% 1% Violent offenses 83% 57% 27% 17% 16% Murder 100 98 2 Rape 89 84 5 11 8 3 Robbery 71 18 1 10 Assault 81 47 34 19 Other violent 78 31 22 21

Table 9.2: Distribution of Types of Felony Sentences Imposed in State Courts, by Most Serious Conviction Offense, 2009, 2 Most serious conviction offense Total Incarceration (Total) Incarceration (Prison) Incarceration (Jail) Nonincarceration (Total) Nonincarceration (Probation) Nonincarceration (Other) Property offenses 100% 75% 42% 33% 25% 1% Burglary 79 53 26 21 20 1 Larceny/theft 72 40 32 28 27 Motor vehicle theft 77 46 31 23 2 Forgery 64 29 34 36 Fraud 71 33 38 Other property 78 22

Table 9.2: Distribution of Types of Felony Sentences Imposed in State Courts, by Most Serious Conviction Offense, 2009, 3 Most serious conviction offense Total Incarceration (Total) Incarceration (Prison) Incarceration (Jail) Nonincarceration (Total) Nonincarceration (Probation) Nonincarceration (Other) Drug offenses 100% 71% 34% 37% 295 28% 1% Trafficking 80 45 35 20 19 1 Other drug 64 26 39 36

Table 9.2: Distribution of Types of Felony Sentences Imposed in State Courts, by Most Serious Conviction Offense, 2009, 4 Most serious conviction offense Total Incarceration (Total) Incarceration (Prison) Incarceration (Jail) Nonincarceration (Total) Nonincarceration (Probation) Nonincarceration (Other) Public-order offenses 100% 79% 46% 34% 21% 20% 1% Weapons 80 53 28 20 19 Driving-related 83 44 39 17 16 1 Other public-order 75 42 33 25 24 Note: Data on type of sentence were available for 94.6% of convicted defendants. Sentences to incarceration that were wholly suspended were included under probation. Fifteen percent of prison sentences and 57% of jail sentences included a probation term. Sentences to incarceration or probation may include a fine, restitution, community service, treatment, or other court-ordered conditions. Other sentences may include fines, community service, restitution, and treatment. Total for all felonies includes 17 cases that could not be classified into 1 of the 4 major offense categories. Detail may not sum to total due to rounding; Source: Bureau of Justice Statistics, State Court Processing Statistics, 2009

Sentencing, 2 Judges are limited by the U.S. Constitution’s Eighth Amendment prohibition of cruel and unusual punishments and statutory provisions Judges are guided by: Prevailing philosophical rationales Organizational considerations

Sentencing, 3 Presentence investigation reports Their own personal characteristics

Statutory Provisions, 1 State and federal legislative bodies enact penal codes that specify appropriate punishments for each statutory offense or class of offense Five types of punishments are used in the United States Fines Probation

Statutory Provisions, 2 Intermediate punishments (more restrictive than probation but less restrictive and costly than imprisonment) Imprisonment Death Within limits, judges tailor the punishment to fit the crime and the offender

Statutory Provisions, 3 Judges can combine punishments or suspend a punishment if the offender does one of the following: Stays out of trouble Makes restitution Seeks medical treatment

Statutory Provisions, 4 Restitution is money paid or services provided by a convicted offender to victims, their survivors, or the community to make up for the injury inflicted Judges in states that have indeterminate sentencing statutes generally have more discretion in sentencing than do judges in states with determinate sentencing laws

Indeterminate Sentencing and Determinate Sentencing Indeterminate sentencing: A sentence with a fixed minimum and maximum term of incarceration, rather than a set period Determinate sentencing: A sentence with a fixed period of incarceration, which eliminates the decision-making responsibility of parole boards

Statutory Provisions, 5 There are three types of determinate sentences Flat-time Mandatory Presumptive

Statutory Provisions, 6 Flat-time sentencing does not include options for parole and good time Flat-time sentencing: Sentencing in which judges may choose between probation and imprisonment but have little discretion in setting the length of a prison sentence Once an offender is imprisoned, there is no possibility of reduction in the length of the sentence Good time: The number of days deducted from a sentence by prison authorities for good behavior or for other reasons

Statutory Provisions, 7 Mandatory sentencing specifies a number of years of imprisonment (usually within a range) and usually allows credit for good time but does not allow release on parole

Statutory Provisions, 8 Presumptive sentencing is a compromise between legislatively mandated determinate and indeterminate sentences Presumptive sentencing allows a judge to retain some sentencing discretion, subject to appellate review The legislature determines a sentence range for each crime

Statutory Provisions, 9 One of the major criticisms of indeterminate sentencing and a principal reason for the adoption of determinate sentencing schemes by some states is judicial disparity in sentencing Judges vary widely in the sentences they impose for similar crimes and offenders For an example, see the next slide

Figure 9.2: Sentencing Choices of 41 New York State Judges The case: A heroin addict robbed an elderly man at gunpoint The assailant was unemployed, lived with his pregnant wife, and had a minor criminal record He was convicted of first-degree robbery, and under New York’s indeterminate sentencing statute, the actual sentence was between 0 and 5 years Jump to long description

Statutory Provisions, 10 In today’s “law and order” climate, state legislatures are increasingly replacing indeterminate sentences with determinate ones Some argue that determinate sentences result in longer prison sentences and overcrowded prisons The U.S. has been experiencing a crisis of prison overcrowding

Statutory Provisions, 11 Determinate sentencing has prompted several other criticisms Prisons have become harsher, giving up on rehabilitation The abolition of good time and parole makes discipline and control more difficult because inmates have little incentive to behave Some judges ignore guidelines they see as too harsh; some judges ignore guidelines they see as too lenient

Statutory Provisions, 12 Further criticisms of determinate sentencing Determinate sentencing shifts sentencing discretion from judges to legislatures and prosecutors Prosecutors still have discretion in plea negotiations but operate in secret, whereas judges exercise discretion in the open

Statutory Provisions, 13 In jurisdictions that retain good time, determinate sentencing shifts sentencing discretion, at least to some degree, from legislators and prosecutors to correctional personnel It is virtually impossible to define in advance all of the factors that ought to be considered in determining a criminal sentence

Philosophical Rationales, 1 The goals of criminal sanctions or criminal punishment are the prevention and control of crime What has always been at issue is how best to achieve those goals

Philosophical Rationales, 2 Historically, four major rationales have been given for the punishment imposed by the criminal courts Retribution Incapacitation Deterrence Rehabilitation

Philosophical Rationales, 3 Restoration has been gaining more attention as a punishment rationale

Retribution, 1 Although it has probably always played some role in sentencing decisions, retribution is now increasingly popular with the public as a rationale for punishment

Retribution, 2 When most people say retribution, they usually want one of these: Revenge: The punishment rationale expressed by the biblical phrase, “An eye for an eye, and a tooth for a tooth” People who seek revenge want to pay back offenders by making them suffer for what they have done Just deserts: The punishment rationale based on the idea that offenders should be punished automatically, simply because they have committed a crime—they “deserve” it—and the idea that the punishment should fit the crime

Retribution, 3 Retributivists believe that: Retribution reduces the incidence of vigilantism If offenders are not punished for their crimes, other people will lose respect for the law Retribution is the only rationale for criminal punishment that addresses the past, paying back offenders for their crimes

Incapacitation Incapacitation makes it virtually impossible for offenders to commit crimes during the period of restraint Incapacitation was done historically through exile, banishment, or death Today, incapacitation is done through imprisonment or death

Deterrence There are two forms of deterrence Special or specific deterrence: The prevention of individuals from committing crimes again by punishing them General deterrence: The prevention of people in general from engaging in crime by punishing specific individuals and making examples of them Deterrence makes intuitive sense, but social science is unable to measure its effects

Rehabilitation For much of the twentieth century, the primary rationale for punishing criminal offenders has been rehabilitation Unfortunately, because the causes of crime are not fully understood, we don’t know how to correct or cure criminal offenders Rehabilitation: The attempt to correct the personality and behavior of convicted offenders through educational, vocational, or therapeutic treatment and to return them to society as law-abiding citizens

Restoration and Victims’ Rights, 1 Restoration places equal emphasis on victims’ rights and needs and the successful reintegration of offenders into the community Restitution and community service are sometimes used Today, at least in some jurisdictions, a greater effort is being made to do something for victims and their survivors—to restore them, as much as possible, to their previous state and to make them “whole” again Every state has laws that protect the basic rights of crime victims in the criminal justice system

Restoration and Victims’ Rights, 2 In the sentencing process, the United States Supreme Court ruled in 1991, in Payne v. Tennessee, that judges and juries may consider victim-impact statements in their sentencing decisions Victim-impact statements are descriptions of the harm and suffering that a crime has caused victims and their survivors

Organizational Considerations A judge’s sentence is guided by organizational considerations: Plea bargains Prison overcrowding Costs of the sentence versus the benefits derived from it

Presentence Investigation Reports, 1 Generally, a presentence investigation report (PSI) is prepared by a probation officer, who conducts as thorough a background check as possible on a defendant Presentence investigation reports: Reports, often called PSIs or PSIRs, that are used in the federal system and the majority of states to help judges determine the appropriate sentence They are also used in classifying probationers, parolees, and prisoners according to their treatment needs and security risk

Presentence Investigation Reports, 2 Sometimes a PSI includes sentencing recommendations

Allocution, 1 In many jurisdictions, after the PSI has been submitted, a sentencing hearing is held and the defendant is allowed a procedure called allocution The defendant also has the opportunity to plead for a pardon Pardon: A “forgiveness” for the crime committed that stops further criminal processing

Allocution, 2 Allocution: The procedure at a sentencing hearing in which the convicted defendant has the right to address the court before the sentence is imposed During allocution, a defendant is identified as the person found guilty and has a right to deny or explain information contained in the PSI if his or her sentence is based on it

Allocution, 3 Among the claims that a convicted offender can make at allocution are: He or she is not the person who was found guilty at trial A pardon has been granted for the crime in question He or she has gone insane since the verdict She is pregnant (The sentence must be deferred or adjusted)

Personal Characteristics of Judges, 1 Among the personal characteristics of judges that have been found to affect their sentencing decisions are: Their socioeconomic backgrounds The law schools they attended Their prior experiences in and out of court The number of offenders they defended earlier in their careers

Personal Characteristics of Judges, 2 Their biases concerning various crimes Their emotional reactions and prejudices toward the defendants Their own personalities Their marital and sexual relations

Appeals, 1 Defendants can appeal their convictions on legal or constitutional grounds Because the defendant has already been found guilty, the presumption of innocence no longer applies during the appellate process, and the burden of showing why the conviction should be overturned shifts to the defendant

Appeals, 2 Generally, an offender must file a notice of intent to appeal within 30 to 90 days after conviction Also, the defendant must file an affidavit of errors specifying the alleged defects in the trial or pretrial proceedings Nearly 80% of state trial court decisions are affirmed on appeal

The Death Penalty As a punishment for the most heinous of crimes, the death penalty, or capital punishment, differs from other criminal sanctions The United States Supreme Court has acknowledged, “death is different”

A Brief History of the Death Penalty in the United States, 1 The first American settlers brought with them the English penal code, which listed 50 capital offenses Actual practice varied from colony to colony The earliest recorded lawful execution in America was in 1608 in the colony of Virginia Since then, there have been about 20,000 legal executions in the U.S

A Brief History of the Death Penalty in the United States, 2 Only 3% of people executed were women, and 87% of those were before 1866 About 2% of those executed in the U.S. since 1608 have been juveniles Between 1990 and 2005, the U.S. was one of only seven countries that executed anyone who was under 18 at the time of the crime

A Brief History of the Death Penalty in the United States, 3 The others were: Democratic Republic of Congo Iran Nigeria Pakistan Saudi Arabia Yemen

Enter the Supreme Court, 1 Currently there are five methods of execution in use Lethal injection is the primary method of execution used in all executing states, as well as the U.S. government and the U.S. military Electrocution Lethal gas Hanging Firing squad

Enter the Supreme Court, 2 Between 1968 and 1972, an informal moratorium on execution was observed as a series of lawsuits challenged the constitutionality of capital punishment The Supreme Court set aside death sentences in 1972 for the first time

Enter the Supreme Court, 3 In the Furman v. Georgia decision, the Court held that the way the death penalty was administered was unconstitutional but not capital punishment by itself The decision voided the death penalty laws of some 35 states, and the death sentences of more than 600 men and women were commuted to imprisonment

Enter the Supreme Court, 4 By 1974, 30 states had enacted new death penalty statutes designed to meet the Court’s objections The new death penalty laws took two forms Mandatory statutes that required capital punishment for certain crimes Guided-discretion statutes that provided specific guidelines for judges and juries

Enter the Supreme Court, 5 Mandatory statutes were rejected in 1976 In the Gregg v. Georgia decision (also in 1976), the Court upheld the constitutionality of guided-discretion statutes Since 1977 and as of May 12, 2016, 1,436 people had been executed in 34 states and by the federal government, including 537 in Texas

Figure 9.3: State-by-State Count of Inmates Executed in 34 States Since Executions Resumed in 1977 Jump to long description

Enter the Supreme Court, 6 Currently (as of May 12, 2016), 34 jurisdictions have capital punishment statutes 20 jurisdictions do not have capital punishment statutes See the previous slide for map of jurisdictions

Enter the Supreme Court, 7 In decisions since Gregg, the Supreme Court has limited the crimes for which death is considered appropriate and has further refined death penalty jurisprudence The Court has generally limited the death penalty to those offenders convicted of capital, or aggravated, murder

Enter the Supreme Court, 8 In 1986, the Court barred states from executing inmates who have developed mental illness while on death row In 1987, the Court held that state death penalty statutes are constitutional even when statistics indicate that they have been applied in racially biased ways The Court ruled that racial discrimination must be shown in individual cases

Enter the Supreme Court, 9 In 2002, the Court banned the execution of intellectually-challenged offenders In 2005, the Court limited capital punishment to offenders who are 18 years of age or older at the time of the crime The 1994 federal crime bill expanded the number of federal crimes punishable by death to about 50 As of year-end 2009, the number of federal crimes punishable by death had been reduced to 41

The Procedural Reforms Approved in Gregg, 1 In Gregg, the Court assumed, without any evidence, that the new guided-discretion statutes would eliminate the arbitrariness and discrimination that the Court found objectionable in its Furman decision

The Procedural Reforms Approved in Gregg, 2 The Court was particularly optimistic about the following procedural reforms: Bifurcated trials Guidelines for judges and juries Automatic appellate review

Bifurcated Trials Bifurcated trial: A two-stage trial consisting of a guilt phase and a separate penalty phase If a defendant is found guilty in the guilt phase, then at the penalty phase, the judge or jury must determine whether the sentence will be death or life in prison Some states require the selection of two separate juries in capital trials—one for each phase

Guidelines for Judges and Juries, 1 What the court found especially appealing about the guided-discretion statutes is that judges and juries are provided with standards that presumably restrict, but do not eliminate, their sentencing discretion Judges and juries, in most states, are provided with lists of aggravating factors and mitigating factors

Guidelines for Judges and Juries, 2 Aggravating factors: In death sentencing, circumstances that make a crime worse than usual Also aggravating circumstances or special circumstances Mitigating factors: In death sentencing, circumstances that make a crime less severe than usual Also mitigating circumstances or extenuating circumstances

Automatic Appellate Review Currently, 30 of the 31 states with death penalty statutes provide for automatic appellate review of all death sentences, regardless of the defendant’s wishes Although the Supreme Court does not require it, some states have provided a proportionality review

Proportionality Review Proportionality review: Review in which the appellate court compares the sentence in the case it is reviewing with penalties imposed in similar cases in the state The object is to reduce, as much as possible, disparity in death penalty sentencing

Collateral Review In addition to the automatic appellate review, there is a dual system of collateral review for capital defendants Defendants may appeal their convictions and sentences through state and federal appellate systems

Table 9.5: The Appellate Process in Capital Cases, 1 Stage 1: Direct appeal Step 1: Trial and sentence in state court Step 2: Direct appeal to state appeals court (state supreme court) Step 3: U.S. Supreme Court for writ of certiorari (discretionary) Stage 2: State postconviction review Step 1: Trial court Step 2: State court of appeals (state supreme court)

Table 9.5: The Appellate Process in Capital Cases, 2 Stage 3: Federal postconviction review Step 1: Petition for writ of habeas corpus in U.S. District Court Step 2: U.S. Circuit Court of Appeals Step 3: U.S. Supreme Court for writ of certiorari (discretionary)

Writ of Habeas Corpus Some death row inmates whose appeals have been denied by the U.S. Supreme Court may still try to have the Supreme Court review their cases on constitutional grounds by filing a writ of habeas corpus

Appellate Review, 1 Congress and the Supreme Court have significantly restricted habeas petitions recently in order to reduce long delays in executions Some people argue that the appellate reviews are unnecessarily delaying tactics (at least those beyond the automatic review)

Appellate Review, 2 However, between 1973 and 2013, 38% of the initial convictions or sentences in capital cases were overturned on appeal as a result of: Denial of the right to an impartial jury Problems of tainted evidence and coerced confessions Ineffective assistance of counsel Prosecutors’ references to defendants who refuse to testify

The Death Row Population The death row population in the U.S. continues to grow but more slowly than one might expect because inmates have: Been removed from death row by having their convictions or sentences reversed Died of natural causes, been killed, or committed suicide Received commutations, which are reductions in sentences, granted by a state’s governor

Figure 9.4: The Total Number of Death Row Inmates, by Race and Gender Jump to long description Jump to long description

Prospects for the Future, 1 Among Western, industrialized nations, the United States is the only nation to employ capital punishment Even where capital punishment is employed in the U.S., most jurisdictions rarely use it

Figure 9.6: Countries with the Most Executions in 2015 Jump to long description

Prospects for the Future, 2 The death penalty in the U.S. appears to be a waning institution Public support for the death penalty appears to be dropping The American public is expressing greater concern about the way the death penalty is being administered In 1997, the American Bar Association requested death penalty jurisdictions to refrain from using the sanction until greater fairness and due process could be ensured

Figure 9.5: Death Sentences and Executions in the United States, 1976–2015 Jump to long description

Prospects for the Future, 3 The leaders of most organized religions in the U.S. oppose capital punishment The world increasingly opposes the death penalty, and the European Union requires the abolition of the death penalty as a condition for admittance

Prospects for the Future, 4 On the other hand, capital punishment in some states has proven stubbornly resilient Death penalty support among the American public remains relatively strong The public is skeptical that capital murderers sentenced to life without parole will remain imprisoned for life People believe courts and legislatures will be able to fix problems with the administration of the death penalty

Prospects for the Future, 5 Although the death penalty has virtually no effect on crime, it remains a favored political silver bullet—a simplistic solution to the crime problem used by aspiring politicians and law enforcement officials

Appendices

Figure 9.2: Sentencing Choices of 41 New York State Judges - Appendix Each bar represents the percentage of judges who chose a particular sentence range. The percentage of judges for the sentencing range from 0 to 5 years is 22. The percentage of judges for the sentencing range from 5 to 10 years is 29. The percentage of judges for the sentencing range from 10 to 15 years is 29. The percentage of judges for the sentencing range from 15 to 20 years is 12. The percentage of judges for the sentencing range from 20 to 25 years is 6. Jump to the image

Figure 9.3: State-by-State Count of Inmates Executed in 34 States Since Executions Resumed in 1977 - Appendix The total count is 1,442. Jurisdictions without capital punishment statutes include the District of Columbia. Jurisdictions with capital punishment statutes include the U.S. government and U.S. military. Jump to the image

Figure 9.4: The Total Number of Death Row Inmates, by Race and Gender - Appendix, 1 The first chart depicts the total number of death row inmates by race, and the second chart depicts the total number of death row inmates by gender. In the first chart, the total number of inmates who are Black is 1,227, which represents 41.69 percent. The total number of inmates who are White is 1,251, which represents 42.51 percent. The total number of inmates who are Latino or Latina is 383, which represents 13.01 percent. The total number of inmates who are Native American is 30, which represents 1.02 percent. The total number of inmates who are Asian is 51, which represents 1.73 percent. The total number of inmates whose race is unknown is 1, which represents 0.03 percent. Jump to the image

Figure 9.4: The Total Number of Death Row Inmates, by Race and Gender - Appendix, 2 In the second chart, the total number of inmates who are male is 2,888, which represents 98.13 percent. The total number of inmates who are female is 55, which represents 1.87 percent. Jump to the image

Figure 9.6: Countries with the Most Executions in 2015 - Appendix China executed more than 1,000 people. Iran executed more than 977 people. Pakistan executed 326 people. Saudi Arabia executed more than 158 people. United States executed 28 people. Iraq executed more than 26 people. Jump to the image

Figure 9.5: Death Sentences and Executions in the United States, 1976–2015 - Appendix The number of death sentences and executions have been declining in recent years. Jump to the image