chapter 10 sentencing. © 2003 prentice hall, inc. 2 sentencing goals of sentencing retribution...

Chapter 10

Sentencing

2© 2003 Prentice Hall, Inc.

SentencingGoals of SentencingGoals of Sentencing

• retribution

• incapacitation

• deterrence

• rehabilitation

• restoration

3© 2003 Prentice Hall, Inc.

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.

4© 2003 Prentice Hall, Inc.

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.

5© 2003 Prentice Hall, Inc.

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

6© 2003 Prentice Hall, Inc.

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.

7© 2003 Prentice Hall, Inc.

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.

8© 2003 Prentice Hall, Inc.

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.

9© 2003 Prentice Hall, Inc.

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

10© 2003 Prentice Hall, Inc.

Sentencing

Two Types:• indeterminate• determinate

(fixed)

11© 2003 Prentice Hall, Inc.

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.”

12© 2003 Prentice Hall, Inc.

• 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

13© 2003 Prentice Hall, Inc.

Indeterminate SentencingIndeterminate 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.

14© 2003 Prentice Hall, Inc.

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.

15© 2003 Prentice Hall, Inc.

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.

16© 2003 Prentice Hall, Inc.

Developed, in part, as a response to the disparity in

sentencing of the indeterminate model.

Rise of Structured SentencingRise of Structured Sentencing

17© 2003 Prentice Hall, Inc.

• proportionality

• equity

• social debt

Rise of Structured SentencingRise of Structured Sentencing

ProportionalityProportionality

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

Structured Sentencing

19© 2003 Prentice Hall, Inc.

EquityEquity

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

Structured SentencingStructured Sentencing

20© 2003 Prentice Hall, Inc.

Social DebtSocial Debt

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

Structured Sentencing

21© 2003 Prentice Hall, Inc.

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.

22© 2003 Prentice Hall, Inc.

• Offender is given a fixed sentence length.

• The sentence can be reduced by “good time.”

• The use of parole is eliminated.

Structured Sentencing

23© 2003 Prentice Hall, Inc.

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

24© 2003 Prentice Hall, Inc.

Violent Crime Control and Law Enforcement Act of 1994

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

Structured Sentencing

25© 2003 Prentice Hall, Inc.

Presumptive Sentencing

Model of punishment that meets the following conditions:

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 justification.

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

26© 2003 Prentice Hall, Inc.

Sentencing GuidelinesFirst states to approve use of 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.

The federal government and 16 states now follow sentencing guidelines.

27© 2003 Prentice Hall, Inc.

Sentencing Guidelines

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

28© 2003 Prentice Hall, Inc.

Federal Sentencing GuidelinesU.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.

29© 2003 Prentice Hall, Inc.

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.

30© 2003 Prentice Hall, Inc.

Mitigating FactorsExamples 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

31© 2003 Prentice Hall, Inc.

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.

32© 2003 Prentice Hall, Inc.

Mandatory SentencingStructured 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

33© 2003 Prentice Hall, Inc.

Innovations in Sentencing

• Shaming is used as a crime reduction strategy.

• California courts are making racially equitable sentencing decisions.

34© 2003 Prentice Hall, Inc.

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

35© 2003 Prentice Hall, Inc.

• health history• military service• religious preference• financial condition• sentencing

recommendation

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

36© 2003 Prentice Hall, Inc.

Presentence Investigation Report

Federal law mandates a presentence report in federal court.

37© 2003 Prentice Hall, Inc.

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

The Sentencing of Convicted Felons in State Courts by Type of Offense

38© 2003 Prentice Hall, Inc.

Court-ordered Prison Commitments, 1960-1998

39© 2003 Prentice Hall, Inc.

The Victim

• consideration of victims and their survivors

• victims’ rights movement• victims’ assistance programs

40© 2003 Prentice Hall, Inc.

The VictimRestorative justice - Emphasizes offender accountability and victim reparation.

41© 2003 Prentice Hall, Inc.

The Victim

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

42© 2003 Prentice Hall, Inc.

Traditional Sentencing Options

• imprisonment• fines• probation• death

43© 2003 Prentice Hall, Inc.

Sentencing OptionsImprisonmentImprisonment

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.

44© 2003 Prentice Hall, Inc.

• 32% of those convicted are sentenced to probation.

• The average prison sentence is 5 years.

• The average prison sentence served is 2 years.

Sentencing OptionsImprisonmentImprisonment

45© 2003 Prentice Hall, Inc.

Fines Fines

Fines are one of the oldest forms of punishments (predates the Code of Hammurabi).

Advantages:

• Fines contribute to state treasury.

• Criminals are deprivedof the proceeds of criminal activity.

• Fines are inexpensive to collect.

• Fines can be made proportionate to severity of

offense.

Sentencing Options

46© 2003 Prentice Hall, Inc.

Criticisms:• Offender often serves no time.• Fines are a “mild” form of

punishment.• Fines discriminate against the poor.• Fines are difficult to collect.

Sentencing Options

Fines Fines

47© 2003 Prentice Hall, Inc.

Death:Death: History

Israel – biblical times

instituted public stoning

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

used poison to limit sufferingRomans – used beheading

most ofte

n, also used burn

ing

for arsonists

Dark Ages -

executions by ordeal

Sentencing Options

48© 2003 Prentice Hall, Inc.

• Up until the 1890’s, hanging was the predominant form of

execution.• Currently, the majority of states

use lethal injection.

Sentencing Options

49© 2003 Prentice Hall, Inc.

U.S. Executions by State 1976-2000

Source: Death Penalty Information Center, data as of January 2, 1999

50© 2003 Prentice Hall, Inc.

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.”

51© 2003 Prentice Hall, Inc.

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

52© 2003 Prentice Hall, Inc.

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.

53© 2003 Prentice Hall, Inc.

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.”

54© 2003 Prentice Hall, Inc.

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

55© 2003 Prentice Hall, Inc.

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.

Death Penalty & Court Cases

56© 2003 Prentice Hall, Inc.

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.