Ch09b Sentencing

© Prentice Hall 2008Pearson Education, Inc

Upper Saddle River, NJ 07458

Criminal Justice: A Brief Introduction, 7E by Frank Schmalleger

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Sentencing

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Sentencing

Sentencing—the imposition of a penalty on a convicted criminal following an impartial judicial proceeding.

Most sentencing decisions are made by a judge, though in some cases, such as death penalty cases, juries are involved.




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Imprisonment Fines Probation Death

Traditional Sentencing Options




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Sentencing philosophies Form the basis for various sentencing strategies Are intertwined with issues of religion, morals, values, and emotions

Sentencing Philosophies




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1. Retribution

2. Incapacitation

3. Deterrence

4. Rehabilitation

5. Restoration

Goals of Sentencing

Five goals influence modern sentencing practices:




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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; they get their “just deserts.”




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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 popular in the United States, as evidenced by the increase in prison populations. (Some call this the “lock ‘em up” approach.)




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Deterrence

… a 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• General




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Deterrence

Specific DeterrenceSeeks to prevent recidivism—repeat offending by convicted offenders.

General Deterrence Tries to influence the behavior of those who have not yet committed a crime yet may be tempted to.




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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.




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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 victim. Sentencing options focus primarily on restitution payments. Vermont’s Sentencing Options Program uses reparative probation.




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Sentencing

Two models:

Indeterminate Determinate (fixed)

Different sentencing practices have beenlinked to each of the goals of sentencing.




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Indeterminate Sentencing

… A model of criminal punishment that encourages rehabilitation via the use of general and relatively unspecific sentences.




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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.





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The 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





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Criticisms of Indeterminate Sentencing

Indeterminate sentencing givesinadequate attention to:

Proportionality Equity Social debt

Gain time, good time, and other allowances may result in release even before the lower limit has been served.




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Percentage of Sentence to be Served by New Commitments to State Prison

Offense Type Percentage

Violent 51

Property 46

Drug 46

Public-order 49

Average for all felonies 49

Bureau of Justice Statistics (1999)




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Structured Sentencing

Structured sentencing developed, in part, as a response to the disparity in sentencing of the indeterminate model.Structured sentencing includes:

Determinate sentencing Voluntary/advisory sentencing guidelines Commission-created presumptive sentencing




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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.




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

Determinate Sentencing




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Recommended sentencing policies that are not required by law but serve as guides for judges.

“Sentences” are based on past practices.

Voluntary/Advisory Sentencing Guidelines




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Commission-Based 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.




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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.




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Aggravating and Mitigating Factors

AggravatingCircumstances relating to the commission of a crime that make it more grave than the average instance of that crime.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.Call for a lesser sentence.




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Federal Sentencing Guidelines

The Comprehensive Crime Control Act of 1984 established presumptive sentencing for federal offenders and addressed truth in sentencing.




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Truth in Sentencing

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

…an important policy focus for state legislatures and the U.S. Congress.




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The Violent Crime Control and LawEnforcement Act of 1994 provided states with money for prison construction if they passed “truth in sentencing” laws and could guarantee that certain violent offenders will serve 85% of their sentences.




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Established under Sentencing Reform Act of 1984 and took effect in November 1987. Nine-member commission set minimum sentences for certain federal offenses commission meets yearly to review guidelines.

The U.S. Sentencing Commission




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Limit federal judges’ discretion Reduce disparity Promote consistency and uniformity Increase fairness and equity

Purpose of the Guidelines is to:




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Federal Guideline Provisions

Guidelines specify a sentencing range from which judges must choose. Judges may depart from the guidelines in “atypical” cases. Aggravating and mitigating circumstances are taken into consideration. Guidelines are presented in a matrix-like sentencing table.

Overlapping levels Criminal history and offense level determine sentence




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Career Offender

Under the guidelines, the career offender receives harsher sentences.The career criminal must:

Be at least 18 at time of offense Have committed a crime of violence or trafficking in a controlled substance Have at least two prior felony convictions for crimes of violence or trafficking




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An offender may be adjudged, andsentenced as, a career criminal in a singlehearing.

“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)




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

Melendez v. U. S. (1996)—judges cannot accept plea bargains that would have resulted in sentences lower than the minimum required by law for a particular type of offense.

Plea Bargaining Under the Guidelines




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Apprendi v. New Jersey (2000)—the U.S. Supreme Court questioned the fact-finding authority of judges in making sentencing decisions. They held that requiring sentencing judges to consider facts not proven to a jury is unconstitutional. This raised the question of whether judges could legitimately deviate from sentencing guidelines….

The Legal Environment of Structured Sentencing




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Blakely v. Washington (2004)—the U.S.Supreme Court invalidated any statesentencing schema that allowed judges,rather than juries, to determine any factor that increases a criminal sentence,except for prior convictions.

Forced eight states to rewrite their sentencing laws





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U.S. v. Booker (2005) and U.S. v. Fanfan (2005)examined the constitutionality of federalsentencing practices. Two issues were addressed:

1. Whether fact-finding done by judges under federal sentencing guidelines violates the Sixth Amendment’s right to a jury trial, and

2. If so, whether the guidelines are themselves unconstitutional.

The Court found that:1. In Booker, the sentence had been improperly enhanced on the basis

of facts found solely by a judge. 2. The guidelines themselves are not unconstitutional, provided that

they are no longer mandatory.





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Mandatory Sentencing

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




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Three Strikes Laws

Some states have “Three Strikes Laws,” which require mandatory sentences (sometimes life without parole) when convicted of a third serious felony.

The intent is to deter known and potentially violent offenders and to incapacitate repeat criminals for long periods of time.




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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.




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Before sentencing, the judge may request aPSI report. PSI reports:

Provide information on the background of the convicted defendant Are prepared by probation or parole officers Come in three different forms: long form, short form, and verbal report Include the PSI report writer’s recommendation for sentencing

Presentence Investigation (PSI) Report




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Since the 1970s, a grassroots movement has called for greater consideration of victims and their

survivors. Today, victims’ assistance programs help crime victims

understand the system and their legal rights, get counseling, file civil suits, and recoup financiallosses.

Victim rights advocates want to add an amendment to the U.S. Constitution acknowledging the rights of victims to be present and heard throughout the process. Thirty-two states have amended their constitutions.

Remembering the Victim




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Restorative justice programs emphasize offender accountability and victim reparation. They provide the basis for victim compensation funds.

All states now have legislation providing monetary payments to help certain victims with medical expenses and lost wagers.

The USA PATRIOT Act makes victims of terrorism and their families eligible for victim compensation payments.

Victim Compensation




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The Crime Victims’ Rights Act is part of the Justice For All Act of 2004. It grants victims of federal crimes:

1. The right to be reasonably protected from the accused.2. The right to reasonable, accurate, and timely notice of any public

proceeding involving the crime, or any release or escape of the accused.

3. The right to be included in any such public proceeding. 4. The right to be reasonably heard at any public proceeding involving

release, plea, or sentencing. 5. The right to confer with the federal prosecutor handling the case.6. The right to full and timely restitution as provided by law.7. The right to proceeding free from unreasonable delay.8. The right to be treated with fairness and with respect for the

victim’s dignity and privacy.

Crime Victims’ Rights Act




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The victims’ rights movement also calledfor the use of victim impact statementsbefore 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

Victim Impact Statements




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Modern Sentencing Options




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Sentencing is essentially a risk-managementstrategy designed to protect the publicwhile serving the ends of retribution,incapacitation, deterrence, rehabilitation,and restoration.

Just as the goals of sentencing vary, so dothe types of sentences. Different goalsmandate different sentences.

Sentencing




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There are four traditional sanctions:1. Fines2. Probation3. Imprisonment4. Death

A judge’s discretion to choose the sanctiontype varies depending on the structure ofsentencing used within that particularjurisdiction.

Traditional Sanctions




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Felony Sentencing in State Courts

Bureau of Justice Statistics, 2004




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Sentencing Options: Imprisonment

In 2002, there were 1,051,000 people convicted of felonies in state courts and 63,217 in federal courts.

41% received active prison terms, with an average length of 4.5 years. 28% received jail sentences with an average length of 7 months. 31% were given straight probation, with an average sentence of 38 months. 25% were ordered to pay a fine.

Bureau of Justice Statistics (2004) reports:




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Court-ordered Prison Commitments, 1960-2002

Bureau of Justice Statistics, 2004




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Fines are one of the oldest forms ofsentencing.

Fines may be used alone or in combinationwith another penalty.

More than $1 billion in fines are collectednationwide each year.

Fines




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Fines

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




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Some critics of fines propose using theScandinavian system of day fines.

Day fines are proportional to the severity ofthe crime and the financial resources of theoffender.

Day fines have been successfully used insome jurisdictions in the United States.

Day Fines




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Death Penalty




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The Death Penalty

Capital punishment means the death penalty. It is the most extreme of all possible sanctions and is reserved only for especially repugnant crimes (known as capital offenses).




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The Extent of Death Penalty Statutes

Capital punishment is a sentencing option is 38 states and the federal government.

States vary considerably with regard to the number of death sentences given and the number of executions.




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Court-Ordered Executions Carried Out in the United States, 1976-2005

Source: Death Penalty Information Center




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Offenders on Death Row

On January 1, 2006, there were 3,373 people on death row in the United States.

98.4% male 45.4% white 10.5% Hispanic 41.8% African American 2.3% were of other races (mostly Native American and Pacific Islander)




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Methods of Execution

Methods of imposing death vary by state.

Most use legal injection. Electrocution, hanging, gas chamber, and firing squad are still on the books as an option in at least one state.




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Habeas Corpus Review

The average time before execution is 11 years. 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.




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Limiting Appeals

In a move to reduce delays in executions, the U.S. Supreme Court:

Limited the number of appeals (McCleskey v. Zandt, 1991 & Coleman v. Thompson, 1991). Defined standards for further appeals from death row inmates (Schlup v. Delo, 1995)

Further limitations were instituted by the Antiterrorism and Effective Death Penalty Act of 1996.




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Abolitionist and Retentionist Positions on Capital Punishment

Arguments for Retention 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.

Arguments for Abolition Innocent people have been sentenced to die (DNA now plays a role). Sentences often changed by appeals courts. Not an effective deterrent. Imposition is arbitrary and discriminatory. Far too expensive. Reduces society to the level of the criminal.




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The U.S. Supreme Court defined cruel andunusual methods of execution in In reKemmler (1890):

“Punishments are cruel when they involvetorture or lingering death; but the punishmentof death is not cruel within the meaning of

thatword as used in the Constitution.”

The Courts and the Death Penalty




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“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.

Georgia, and states with similar statutes, worked quickly to modify their procedures.

Furman v. Georgia (1972)




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The Court upheld the two-step procedure requirements of Georgia’s new capitalpunishment law as necessary forensuring the separation of the highlypersonal information needed in asentencing decision from the kinds ofinformation reasonably permissible in ajury trial.

Gregg v. Georgia (1976)




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Age is a bar to execution when theoffender committed the crime when hewas younger than 18.

Roper v. Simmons (2005)




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Most recent appeals challenge state’s capitalpunishment laws and tend to focus on theprocedures in sentencing decisions.

Still, most U.S. Supreme Court justices believethat the “death sentence” is fundamentallyconstitutional. It is the means of executionand the population of those to be executed(like age and mental inability) that are cominginto question.

Recent Court Challenges




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There is little common ground between death penalty advocates and opponents.

Most people support capital punishment under certain circumstances. Support increased post-September 11th.

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

The Future of the Death Penalty

Ch09b Sentencing

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