Criminal Justice Today Chapter 11 Sentencing

Sentencing 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. Traditional Sentencing Options Imprisonment Fines Probation Death Goals of Sentencing- Five goals influence modern sentencing practices: Retribution- the act of taking revenge on a perpetrator. “Eye for an eye” & “Just desserts” Incapacitation- the use of imprisonment, or other means, to reduce the likelihood that an offender will be capable of committing future offenses Requires only restraint (prison, mutilation, amputation of limbs)

Deterrence- a more rational 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- reducing likelihood of repeat offenses General- influence future behavior of those not yet arrested for offenses 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 Restoration- 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

Indeterminate Sentencing … A model of criminal punishment that encourages rehabilitation via the use of general and relatively unspecific sentences. 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. Behavior of the offender during incarceration is the main determining factor in release decisions. A few states employ a partially indeterminate sentencing model. Judge sets maximum time. Minimum set by law. Criticisms of Indeterminate Sentencing- gives inadequate attention to: Proportionality- sentence should be proportional to crime Equity- sentence should same for offenders regardless of their personal/social characteristics Social debt- offender’s criminal history should be taken into account Gain time- time deducted for participation in a program Good time- time deducted for good behavior in prison

Structured Sentencing ..model of criminal punishment in which an offender is given a fixed term of imprisonment that may be reduced by good time or gain time. Determinate sentencing Offender is given a fixed sentence length. The sentence can be reduced by “good time.” The use of parole is eliminated. 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 Commission-created presumptive sentencing 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.

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. Aggravating Circumstances relating to the commission of a crime that make it more grave than the average instance of that crime (cruelty, etc.) 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 (cooperation w/authorities, surrender, good character, etc) Call for a lesser sentence Comprehensive Crime Control Act of 1984 established presumptive sentencing for federal offenders and addressed truth in sentencing. Truth in Sentencing- close correspondence between sentence imposed and actual time served in prison Melendez v. U. S. (1996)—judges can’t accept plea bargains that would have resulted in sentences lower than the minimum required by law for a particular type of offense.

Aggravating Circumstances The defendant induced others to participate in the commission of the offense. The offense was especially heinous, atrocious, or cruel. The defendant was armed with or used a deadly weapon during the crime. The defendant committed the offense to avoid or prevent a lawful arrest or to escape from custody. The offense was committed for hire. The offense was committed against a current or former law enforcement or corrections officer while engaged in the performance of official duties or because of the past exercise of official duties. The defendant took advantage of a position of trust or confidence to commit the offense.

Mitigating Circumstances The defendant has no record of criminal convictions punishable by more than 60 days of imprisonment. The defendant has made substantial or full restitution. The defendant has been a person of good character or has had a good reputation in the community. The defendant aided in the apprehension of another felon or testified truthfully on behalf} of the prosecution. The defendant acted under strong provocation, or the victim was a voluntary participant in the criminal activity or otherwise consented to it. The offense was committed under duress, coercion, threat, or compulsion that was insufficient to constitute a defense but that significantly reduced the defendant’s culpability. At the time of the offense, the defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but that significantly reduced the defendant’s culpability.

Mandatory Sentencing & Three Strikes Laws 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. 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. 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.

Alternate Sentencing: Approaches and Diversion Diversion: Official suspension of criminal or juvenile proceedings against an alleged offender at any point after a recorded justice system intake, but before the entering of a judgment, and referral of that person to a treatment or care program administered by a non-justice or private agency. Offender registry: Requiring an offender to register with the community when committing a certain type of violation (such as a sexual crime). Once a person is required to register, it can be an additional crime if they move and do not register or notify authorities. Alternative sanctions: Innovative individualized sentence given to an offender based on that particular crime. For example (as pictured above) having offenders of noise ordinances listen to classical music. Other examples include having an offender clean up property they damaged, having an offender wear a label (such as a bumper sticker on a car for those convicted of DWI) or write a letter of apology to a victim. Home detention: Requiring an offender to stay home and not leave the property. Drug treatment: The offender has to be tested for drugs/alcohol on a regular basis. Psychological counseling: Having to attend meetings and sessions to help treat a particular problem (such as anger management). Lecture Notes There are numerous creative and innovative alternates to sentencing. Listed below are several examples: Diversion: Official suspension of criminal or juvenile proceedings against an alleged offender at any point after a recorded justice system intake, but before the entering of a judgment, and referral of that person to a treatment or care program administered by a non-justice or private agency. Also, release without referral. Fines: Requiring the offender to pay fines to the court for their violations. Offender registry: Requiring an offender to register with the community when committing a certain type of violation (such as a sexual crime). Once a person is required to register, it can be an additional crime if they move and do not register or notify authorities. Alternative sanctions: Innovative individualized sentence given to an offender based on that particular crime. For example (as pictured above) having offenders of noise ordinances listen to classical music. Other examples include having an offender clean up property they damaged, having an offender wear a label (such as a bumper sticker on a car for those convicted of DWI) or write a letter of apology to a victim. Home detention: Requiring an offender to stay home and not leave the property. Drug treatment: The offender has to be tested for drugs/alcohol on a regular basis. Psychological counseling: Having to attend meetings and sessions to help treat a particular problem (such as anger management).

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. Presentence Investigation Report

Figure 12.2 Information in a Presentence Report

The Victim – Forgotten No Longer 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 Compensation Restorative justice programs provide the basis for victim compensation funds. States have legislation providing monetary payments to help certain victims. The USA PATRIOT Act provides compensation for victims of terrorism and their families. 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

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.

Traditional Sanctions There are four traditional sanctions: Fines Probation Imprisonment Death A judge’s discretion to choose the sanction type varies depending on the structure of sentencing used within that particular jurisdiction.

Fines Fines are one of the oldest forms of sentencing. Fines may be used alone or in combination with another penalty. More than $1 billion in fines are collected nationwide each year. Arguments For Fill state coffers Lower tax burden Deny criminals the proceeds of their criminal activity. Inexpensive to implement. Can be made proportionate to the severity of the offense. Arguments Against Too mild of a punishment. Offenders often serve no time. Discriminate against the poor. Can be difficult to collect. Day Fines- proportional to the severity of the crime and the financial resources of the offender. Some critics of fines propose using the Scandinavian system of day fines.

Greek and Roman Societies Capital Punishment Biblical Israel Greek and Roman Societies Dark Ages French Revolution Lecture Notes Legal Executions Biblical Israel Greek & Roman Societies Dark Ages French Revolution Since recordkeeping first began in 1608, over 18,800 legal executions have taken place in the United States. Teaching Tips Show the website “Death Penalty Information Center” as a resource for death penalty statistics and facts.

The Death Penalty Capital punishment=death penalty. It is the most extreme of all possible sanctions and is reserved only for especially repugnant crimes (known as capital offenses). Capital punishment is a sentencing option is 35 states and the federal government. States vary considerably with regard to the number of death sentences given and the number of executions Methods of imposing death vary by state. Most use lethal injection. Electrocution, hanging, gas chamber, and firing squad are still on the books as a option in at least one state. Today, the average time before execution is 12 years and 9 months. Most of the delay is due to appeals. All death penalty cases get one automatic appeal. Beyond that, inmates can receive more appeal by filing writs of habeas corpus, an order directing anyone holding a prisoner to bring him before a judicial officer to determine the lawfulness of the imprisonment. Baze v. Rees (2008)- Capital punishment protocol does not violate 8th Amendment as it does not create a substantial risk of pain, torture, or lingering death.

Court-Ordered Executions Carried Out in the United States, 1930- 2008 FIGURE 11–3 Court-ordered executions carried out in the United States, 1930–2008.

Abolitionist and Retentionist Positions on Capital Punishment Arguments for Retention Revenge—Only after execution can survivors begin to heal psychologically Just desserts—Some people deserve to die for what they did Protection—Once executed, the person cannot commit another crime Arguments for Abolition Has been used on innocent people and may be again Not an effective deterrent Imposition is arbitrary and discriminatory Far too expensive Reduces society to the level of the criminal Doesn’t deter offenders

The Death Penalty and Innocence Claims of innocence are being partially addressed by recently passed state laws that mandate DNA testing of all death row inmates in situations where DNA might help establish guilt or innocence. The Innocence Protection Act (2004) provides federal funds to help analyze DNA at crime labs throughout the country. The Death Penalty Information Center claims that 133 people in 25 states were freed from death row between 1973 and 2009 after it was determined that they were innocent. FIGURE 11–4 Number of DNA-based exonerations by state since 1989.

The Death Penalty, Mental Capacity, & Age People with very low IQs (mentally challenged) cannot be executed People with mental diseases may be executed as long as they know why they’re on death row & understand the punishment they face People who were under 18 when they committed the crime cannot be executed