1. Criminal Law for the Criminal Justice Professional
Norman M. Garland
Fourth Edition
Chapter 7
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2. Punishment and Sentencing
7.1 Punishment in the criminal justice system 7.2 Sentencing
Chapter 7
Punishment and Sentencing

3. Chapter Objectives
Identify the principal purpose of laws that make certain acts punishable by society in the form of criminal prohibitions Name the two justifying theories of punishment that underlie modern criminal law Explain the retributive theory of punishment State the hallmarks of the utilitarian theory of punishment

4. Chapter Objectives (continued)
Define the types of sentences that may be imposed Explain indeterminate sentencing Define determinate sentencing Explain sentencing guidelines Describe the alternatives to imprisonment State when the death penalty cannot be imposed

5. 7.1 Punishment in the Criminal Justice System
Criminal law is distinguished from other types of law by the imposition of punishment for its violation
Meaningful set of mandatory rules of conduct must provide for punishment of those who violate the rules

6. Definition of Punishment
Punishment is an integral part of the criminal justice system
Punishment
When an agent of the government, using authority granted by virtue of a legal criminal conviction, intentionally inflicts pain, loss of liberty, or some other unpleasant consequence on the person who has been convicted

7. Definition of Punishment (continued 1)
Retributive justification
Utilitarian justification
A justification for punishment based on the theory that a wrongdoer deserves punishment for punishment’s sake
A defense that, if proved, results in the acquittal of a defendant, even though the prosecutor has proved the defendant’s guilt beyond a reasonable doubt

8. Definition of Punishment (continued 2)
Rehabilitative justification
A justification for punishment based on the theory that if an offender is reformed, the offender will not commit any more crimes
Many critics do not believe that criminals can in fact be reformed

9. Retributive Rationale for Punishment
One who has violated the rights of others should be penalized Punishment restores moral order Imposition of a punishment in proportion to the degree of wrongdoing sets matters right Criminals deserve punishment because they violate social norms

10. Utilitarian Justification for Punishment
Based on Jeremy Bentham’s test for moral desirability of an act or social practice
Whether the act or practice promotes human happiness better than possible alternatives
Greatest good for the greatest number

11. General Deterrence and Individual Deterrence
Effect that punishment will have in causing other people in the community to refrain from committing the same crime
Individual deterrence
Effect that the imposition of punishment on a wrongdoer will have in causing him or her to refrain from repeating the act

12. Incapacitation Incapacitation
The removal or restriction of freedom of those who have violated criminal laws, usually by imprisonment

13. Incapacitation (continued)
Three-strikes laws
Zero tolerance
Laws that impose sentences of 25-years-to-life for those who have been convicted of certain serious offenses three times
Laws that impose maximum penalties for certain crimes, such as particular sex offenses; also known as one-strike laws

14. Reform and Vengeance Reform Vengeance Vengeance
Rehabilitation of the offender so that he or she will no longer desire to commit crimes
Vengeance
Vengeance
The imposition of punishment in the context of an “eye for an eye” or a “tooth for a tooth”; usually associated with retribution, though the utilitarian may see a benefit in vengeance

15. Modern Views on Punishment
Prevalent punishment practices in the U.S. from the mid-twentieth century to the 1970s were predicated upon the utilitarian theories but consistent with “important retributive limits on severity”
Reform movement of 1970s emphasized fixed-term sentencing and the development of the sentencing guidelines legislative model

16. 7.2 Sentencing
Sentencing is a controversial area Judges in the federal criminal law system have the Federal Sentencing Guidelines available to assist them

17. Types of Sentencing Indeterminate sentencing
A sentencing system in which the trial judge has great discretion and correctional authorities have the power to release a prisoner before completion of the maximum sentence imposed by the judge if, in the view of those authorities, rehabilitative goals have been achieved

18. Types of Sentencing (continued 1)
Determinate sentencing
A sentencing system that abolishes parole boards and creates presumptive sentencing ranges for various classes of offenses, thereby limiting trial judges’ discretion; such a system typically has sentencing guidelines for judges to follow
Sentencing guidelines
A set of standards for sentencing, set by a commission legislatively established for that purpose, that judges in a determinate sentencing system must or may follow

19. Types of Sentencing (continued 2)
Mandatory sentencing
Laws by which the state’s legislature fixes either the exact penalty for the crime or a minimum number of years that the defendant must serve
Habitual-felon laws
Laws that provide for enhanced sentencing of repeat offenders

20. Sentencing Guidelines
Federal Sentencing Guidelines
Congress passed the Sentencing Reform Act of 1984, which created the U.S. Sentencing Commission that developed the Federal Sentencing Guidelines
States’ Sentencing Guidelines
Some states decided that their determinate sentencing laws violated jury trial rights
Guidelines have been harshly criticized

21. Problems with Imprisonment
State and federal prison population has increased 628 percent since 1970 At the end of 2014, more than 2,300,000 prisoners were incarcerated in federal and state prisons and jails Cost of corrections skyrocketed into billions of dollars Alternatives to imprisonment are being sought after

22. Probation and Parole Probation Parole
The suspension of a sentence of incarceration, allowing the offender to return to the community with conditions under the supervision of a probation officer
The release of an offender from incarceration prior to the expiration of the full term of incarceration, to carry out the rest of the sentence with conditions under the supervision of a corrections officer

23. Restorative Justice and Wrongful Convictions
Victim is involved and plays an important role in holding the offender accountable
Wrongful convictions
Prisons have housed a number of innocent inmates
Few remedies for those who are wrongly imprisoned exist
Restorative justice
A process through which all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future

24. Death Penalty
140 countries do not impose death penalty, and 58 countries impose death penalty Within the United States, most states (31 as of July 1, 2015), the federal government, and the military impose death penalty in certain cases and circumstances Controversy surrounding death penalty is not likely to end

25. History and Evolution of the Death Penalty
People were historically executed for a wide variety of crimes in England
Meant as a deterrent
England abolished death penalty in 1965
Death penalty has gone in and out of fashion in the U.S.
By the mid-twentieth century, Texas accounted for 37 percent of the executions in the United States
Some states have imposed moratoriums

26. Death Penalty Today
Death penalty has come under scrutiny by the U.S. Supreme Court under the “cruel and unusual punishment” clause of the Eighth Amendment
Death penalty case challenges since 1976 have focused on proportionality of a sentence of death for a particular crime
Proportionality
The constitutional principle that the punishment should fit the crime, expressed in the Eighth Amendment’s cruel and unusual punishment clause

27. Application Cases
7.1 Ewing v. California Lockyer v. Andrade 7.2 Blakely v. Washington United States v. Booker

28. Figure 7.1: States That Do and Do Not Have the Death Penalty