CHAPTER

CRIMINAL JUSTICEA Brief Introduction, 5/Eby Frank Schmalleger

©2004 Pearson Education, Inc.Pearson Prentice HallUpper Saddle River, NJ 07458

Sentencing

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9



• imprisonment

• fines

• probation

• death

Traditional Sentencing Options



Goals of Sentencing



• retribution• incapacitation• deterrence• rehabilitation• restoration

Sentencing

Goals of Sentencing



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.”• Retribution holds offenders personally responsible.



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 on the increase in the U.S., as evidenced

by the increase in prison populations.



Deterrence:

… a goal of criminal sentencing that seeks to inhibit criminal behavior through fear of punishment.• It demonstrates that crime is not worthwhile.

• There are two types of deterrence: specific general



• 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.

Deterrence



Specific Deterrence:

… a goal of criminal sentencing that seeks to prevent a particular offender from engaging in repeat criminality.• Incapacitation – During the time an offender

is incapacitated, he is not committing new crimes against free society.

• Capital Punishment – Renders offender incapable of committing more crimes.



General Deterrence:

… 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 include public floggings and very long sentences.



Rehabilitation:

… the attempt to reform a criminal offender.

• Reforming offenders means that criminal activity should be reduced.

• Education, training, and counseling are some of the vehicles used.

• The concept was developed in the 1930s as a result of the growth of psychology.



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

person (victim). • The following are involved:

Counseling Compensation for medical bills, lost wages, personal suffering



Sentencing

• indeterminate

• determinate (fixed)

Two Types:



Indeterminate Sentencing



Indeterminate Sentencing:

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



• 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.




“Good Time”

• The offender can receive credit for good behavior and thereby reduce the amount of time he spends incarcerated.

• The behavior of the offender during incarceration is the main determining factor in release decisions.




Bureau of Justice Statistics

• Violent offenders serve only 51%of their sentences prior to

release.• 49% of the sentence is served

prior to release for all felonies.• Many early releases have

been necessitated by prison overcrowding.

1999 Study



Structured Sentencing:

… a model of criminal punishment that includes determinate and commission-created presumptive sentencing schemes, as well as voluntary/advisory sentencing guidelines.



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

Structured Sentencing



• proportionality

• equity

• social debt




Proportionality:

… the severity of the sanction should be directly related to the seriousness of the crime committed.



Equity:

… similar crimes should receive similar sentences, regardless of the characteristics of the offender.



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 should be.



Determinate Sentencing



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.



• 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:

1. Proper sentence is presumed to fall within the range authorized by sentencing guidelines.

2. If judges deviate from guidelines, they must provide written justifications.

3. Sentencing guidelines provide for some review, usually by an

appellate court.



Sentencing Guidelines

• Minnesota (1980)• Pennsylvania (1982)• Washington (1983)• Florida (1983)

The federal government and 16 states now employ sentencing guidelines.

First states to approve use of sentencingguidelines:



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

Sentencing Guidelines



Mitigating Factors:

… factors that may cause a judge to lower a sentence below that specified in guidelines.

Examples• no prior record• partial or full restitution already made• good community reputation• helped in apprehension of another felon



Mitigating Factors:

… factors that may cause a judge to lower a sentence below that specified in guidelines.

Examples• Victim was a voluntary participant or acted under provocation.• Offense was committed under duress, coercion, or threat which was not sufficient for defense but reduced culpability.



Aggravating Factors:

… circumstances relating to the commission of a crime which cause its gravity to be greater than that of the average instance of the given type of offense.

Examples• Defendant induced others to participate• Offense was especially heinous.• Defendant was armed.



Aggravating Factors:

… circumstances relating to the commission of a crime which cause its gravity to be greater than that of the average instance of the given type of offense.Examples• Offense was committed for hire.• Victim was a law enforcement officer.• Defendant took advantage of a position of

trust.



Mandatory Sentencing:

… structured sentencing that allows NO leeway in the sentence required for a crime.

For example: Three Strikes Laws• require mandatory sentence when convicted

of third felony• require long prison terms



Truth in Sentencing:

… a close correspondence between the sentence imposed upon an offender and the actual time served prior to release from prison.




provided money to entice states to pass “truth in sentencing”

laws….money to be used for prison construction in those states that complied

Violent Crime Control and LawEnforcement Act of 1994



Federal Sentencing Guidelines

• established under Sentencing Reform Act of 1984

• 9 member commission• set minimum sentences for certain federal

offenses• limited federal judges’ discretion• guidelines went into effect in November 1987• challenged on legal grounds in

Mistretta v. U.S.

U.S. Sentencing Commission



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

Mistretta v. U.S. (1989)



Career Offender:

… legal status that 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



• Deal was convicted in a single judicial proceeding of 6 counts of carrying and using a firearm in a

series of bank robberies• He had no previous convictions• He was sentenced to 105 years in

prison as a career offender.

Deal v. U.S. (1993)



Court rejected his 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.”

Deal v. U.S. (1993)



Federal Level

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

Plea Bargaining



Mitigating/Aggravating

Factors



Three Types• Long form

detailed written report on the defendant’s personal and criminal history

• Short formsummarizes the type of information most likely to be useful in the sentencing decision

• Verbal reportmade by the investigating officer based on field notes

Presentence Investigation Report




1. Personal information and identifying data

2. Chronology of the current offense and circumstances surrounding it

3. Record of previous convictions

4. Home life and family data

5. Educational background

Ten Major Informational Sections




6. health history

7. military service

8. religious preference

9. financial condition

10. sentencing recommendation

Ten Major Informational Sections



Federal law mandates a presentence report in federal court.




Felony Sentencing in Federal and State Courts



Court-ordered Prison Commitments, 1968-1998



• consideration of victim 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 victims or their survivors.

The Victim



Sentencing Options: Imprisonment

• 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.

Bureau of Justice Statistics reports:



Sentencing Options: Imprisonment

• 32% of those convicted are sentenced to probation.

• The average prison sentence is 5 years.

• The average prison sentence served is 2 years.

Bureau of Justice Statistics reports:



Fines are one of the oldest forms of punishment

Advantages:• Fines fill state coffers.• Fines deny criminals the proceeds of their

criminal activity.• Fines are inexpensive to implement.• Fines can be made proportionate to the

severity of the offense.

Sentencing Options: Fines



Fines are one of the oldest forms of punishment

Criticisms:• Fines are a mild form of punishment.• Offenders often serve no time.• Fines can discriminate against the poor.• Fines can be difficult to collect.

Sentencing Options: Fines



Death Penalty



Sentencing Options: Death

Greek Society (200 B.C.E.) -

used poison to limit suffering

Dark Ages -

executions by ordeal Israel – biblical times

instituted public stoning

Romans – used beheading

most often, also used burning

for arsonists

History



Sentencing Options: Death

• Until the 1890s, hanging was the predominant form of execution.

• Currently, the majority of capital punishment states use lethal

injection.



U.S. Executions by State1976-2001



Writ of Habeas Corpus:

… Latin for “you have the body.” An order directing anyone holding a prisoner to bring him before a judicial officer to determine the lawfulness of the imprisonment.



• 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

Opposition to the 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.

Support for the Death Penalty



Death Penalty Court Cases

U.S. Supreme Court defined cruel and unusual methods of execution:

“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.”

In re Kemmler (1890)




“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.

Furman v. Georgia (1972)




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.

Gregg v. Georgia (1976)



• There is little common ground between death penalty advocates & opponents

• The future of the death penalty likely rests with state legislatures

The Future of the Death Penalty

Documents

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