Chapter 10 Sentencing

Traditional Sentencing Options imprisonment fines probation death

Sentencing retribution incapacitation deterrence rehabilitation Goals of Sentencing retribution incapacitation deterrence rehabilitation restoration

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’s “an eye for an eye.” Retribution holds offender personally responsible.

Incapacitation Incapacitation is 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 on the increase in the United States, as evidenced by the building of additional prison facilities nationwide.

Deterrence A goal of criminal sentencing that seeks to inhibit criminal behavior through fear of punishment. It demonstrates to public that crime is not worthwhile. There are two types of deterrence: specific general

Deterrence hedonistic calculus - Jeremy Bentham’s belief that people weigh the perceived rewards of criminal behavior against the perceived punishments. Bentham believed that crime will be prevented when perceived punishment outweighs perceived reward.

Specific Deterrence Specific deterrence is a goal of criminal sentencing which seeks to prevent a particular offender from engaging in repeat criminality. incapacitation - At least during time offender is incapacitated he/she is not committing another crime against free society. death sentence - An individual is incapable of committing another crime once sentence is carried out.

General Deterrence General deterrence is a goal of criminal sentencing that seeks to prevent others from committing crimes similar to the one for which a particular offender is being sentenced by making an example of the person sentenced. Examples of general deterrence would include public floggings and hangings.

Rehabilitation The attempt to reform a criminal offender. Also, the state in which a reformed offender is said to be. By reforming the offender, it is believed the number of crimes occurring will be reduced. Education, training, and counseling are some of the vehicles used. The concept was developed in the 1930’s as a result of the growth of psychology.

Restoration Restoration is the 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 person (victim). The following are types of restoration: counseling money for: medical bills, lost wages, suffering

Sentencing Two Types: indeterminate determinate (fixed)

Indeterminate Sentencing A model of criminal punishment which encourages rehabilitation via the use of general and relatively unspecific sentences, such as a term of imprisonment “from one to ten years.”

Indeterminate Sentencing Indeterminate sentencing allows the judge to have a wide range of discretion. Sentences are often given in a range, i.e., “one to ten years.” Probation and parole are options. Degrees of guilt can be taken into account.

Indeterminate Sentencing “Good Time” Offender can receive credit for good behavior and thereby reduce the amount of time s/he spends incarcerated. The behavior of the offender during incarceration is the main determining factor of when an individual is released under indeterminate sentencing.

Bureau of Justice Statistics 1999 study: Violent offenders serve only 51% of their sentences prior to release. 49%of the sentence is served prior to release for all felonies. Many of the early releases have been necessitated by prison overcrowding.

Rise of Structured Sentencing A model of criminal punishment that includes determinate and commission-created presumptive sentencing schemes, as well as voluntary/ advisory sentencing guidelines.

Rise of Structured Sentencing Developed, in part, as a response to the disparity in sentencing of the indeterminate model.

Rise of Structured Sentencing proportionality equity social debt

Structured Sentencing Proportionality The severity of the sanction should be directly related to the seriousness of the crime committed.

Structured Sentencing Equity Similar crimes should receive similar sentences, regardless of the characteristics of the offender.

Structured Sentencing Social Debt The offender’s criminal history should be taken into account during sentencing, i.e., the more crimes previously committed, the harsher the sentence.

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.

Structured Sentencing Offender is given a fixed sentence length. The sentence can be reduced by “good time.” The use of parole is eliminated.

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 justification. Sentencing guidelines provide for some review, usually by an appellate court.

Sentencing Guidelines First states to approve use of sentencing guidelines: Minnesota (1980) Pennsylvania (1982) Washington (1983) Florida (1983) The federal government and 16 states now follow sentencing guidelines.

Sentencing Guidelines Most state sentencing guidelines allow for mitigating factors and/or aggravating factors.

Mitigating Factors Examples of factors that cause a judge to lower a sentence from that specified in guidelines: no prior record already made partial/full restitution good community reputation helped in apprehension of another felon

Sentencing Guidelines Victim was a voluntary participant or acted under provocation. Offense was committed under duress, coercion, or threat which was not sufficient for defense but reduces culpability.

Aggravating Circumstances Those factors related to the crime or defendant that would cause a judge to increase the sentence from those established by the guidelines. Examples: Defendant induced others to participate. Offense was especially heinous. Defendant was armed.

Aggravating Circumstances Offense was committed for hire. Victim was a law enforcement officer. Defendant took advantage of position of trust.

Mandatory Sentencing Example: Structured sentencing which allows NO leeway in the nature of the sentence established for the crime. Example: three-strikes law requires mandatory sentence when convicted of third felony imposes much longer prison terms

Structured Sentencing truth in sentencing - A close correspondence between the sentence imposed upon an offender and the actual time served prior to release from prison.

Structured Sentencing Violent Crime Control and Law Enforcement Act of 1994 provided money to entice states to pass “truth in sentencing” laws….money to be used for prison construction in those states that complied

Federal Sentencing Guidelines U.S. Sentencing Commission established under Sentencing Reform Act of 1984 9 member commission establishes minimum sentences for certain federal crimes limited federal judges discretion guidelines in effect - November 1987 challenged on legal grounds - Mistretta v. U.S.

Mistretta v. U.S. (1989) U.S. Supreme Court held that Congress had acted appropriately in establishing the Sentencing Commission and the guidelines could be applied to federal cases nationwide.

Career Offender Federal label requiring defendant to meet 3 criteria: Defendant is at least 18 at time of offense. Offense is a crime of violence or trafficking in a controlled substance. Defendant has at least two prior felony convictions for crimes of violence or trafficking.

Career Offender Deal v. U.S. (1993) Deal was convicted of 6 counts of carrying and using a firearm in a series of bank robberies Deal was sentenced to 105 years in prison as a career offender. The sentences were to run consecutively.

Career Offender Court rejected appeal stating, “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.”

Plea Bargaining Federal Level Of all federal cases, 90% are the result of guilty pleas, of which the vast majority are the result of plea negotiations.

Innovations in Sentencing Shaming is used as a crime reduction strategy. California courts are making racially equitable sentencing decisions.

Presentence Investigation Report Three types long form detailed written report on the defendant’s personal and criminal history short form summarizes type of information most likely to be useful in sentencing decision verbal report made by the investigating officer based on field notes

Presentence Investigation Report Ten Major Informational Sections personal information and identifying data chronology of the current offense and circumstances surrounding it record of previous convictions home life and family data educational background health history military service religious preference financial condition sentencing recommendation

Presentence Investigation Report Federal law mandates a presentence report in federal court.

The Sentencing of Convicted Felons in State Courts by Type of Offense Matthew R. Durose, David J. Levin, and Patrick A. Lanagan, Felony Sentences in State Courts, 1998 (Washington, D.C.: Bureau of Justice Statistics, 2001)

Court-ordered Prison Commitments, 1960-1998

The Victim consideration of victims and their survivors victims’ rights movement victims’ assistance programs

The Victim Restorative justice - Emphasizes offender accountability and victim reparation.

The Victim victim-impact statements - Description of losses, suffering, and trauma experienced by the victims or their survivors.

Sentencing Options Imprisonment Bureau of Justice Statistics reports: 927,717 people convicted in 1998 in state felony courts. 44% of those convicted received active prison terms. 24% received jail sentences of less than one year.

Sentencing Options 32% of those convicted are sentenced to probation. Imprisonment 32% of those convicted are sentenced to probation. The average prison sentence is 5 years. The average prison sentence served is 2 years.

Sentencing Options Advantages: Fines Advantages: Fines are one of the oldest forms of punishments (predates the Code of Hammurabi). Fines contribute to state treasury. Criminals are deprived of the proceeds of criminal activity. Fines are inexpensive to collect. Fines can be made proportionate to severity of offense.

Sentencing Options Criticisms: Offender often serves no time. Fines Criticisms: Offender often serves no time. Fines are a “mild” form of punishment. Fines discriminate against the poor. Fines are difficult to collect.

Greek Society (200 B.C.E.) - used poison to limit suffering Sentencing Options Dark Ages - executions by ordeal Israel – biblical times instituted public stoning Death: History Romans – used beheading most often, also used burning for arsonists Greek Society (200 B.C.E.) - used poison to limit suffering

Sentencing Options Up until the 1890’s, hanging was the predominant form of execution. Currently, the majority of states use lethal injection.

U.S. Executions by State 1976-2000 Source: Death Penalty Information Center, data as of January 2, 1999

Writ of Habeas Corpus It is an order directing the person detaining a prisoner to bring him or her before a judicial officer to determine the lawfulness of the imprisonment. It is Latin, meaning “you have the body.”

Opposition to Death Penalty could be used on innocent people not an effective deterrent imposition both arbitrary and discriminatory far too expensive to justify reduces us to level of the criminal

Support for Death Penalty revenge - Only after execution can survivors begin to heal psychologically. just deserts - Some people deserve to die for what they did. protection - Once executed, the person cannot commit another crime.

Death Penalty & Court Cases In re Kemmler U.S. Supreme Court defined cruel and unusual methods of execution as follows: “Punishments are cruel when they involve torture or lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution.”

Death Penalty & Court Cases Furman v. Georgia (1972) “evolving standard of decency” The Court invalidated Georgia’s death penalty statute on the basis that it allowed a jury unguided discretion in the imposition of a capital sentence.

Death Penalty & Court Cases Gregg v. Georgia (1976) The Court upheld the two-step procedure requirements of Georgia’s new capital punishment law as necessary for ensuring the separation of the highly personal information needed in a sentencing decision from the kinds of information reasonably permissible in a jury trial.

Future of the Death Penalty There is little common ground for pros and cons of the death penalty. The future of the death penalty rests with state legislatures.