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Retribution is the idea that the criminal must pay for wrongs perpetrated against society.
The biblical phrase “an eye for an eye” is often invoked in this regard.
Another oft-used phrase is that criminals must be given their “just deserts.”
Some people question whether retribution, or legalized vengeance, is a legitimate goal of criminal justice.
The desire for revenge is deep-seated in the human psyche and that if the state does not exact vengeance individuals will resort to vigilantism.
Another defense of retribution focuses on the need for expiation of guilt--criminals must suffer in order to atone for their wrongs.
Defenders of retribution note that it involves proportionality--offenders are punished, but punishment must fit the crime.
This is the idea that punishing persons who commit crimes will prevent other similarly disposed individuals from committing like offenses.
Criminals must be punished to the degree necessary to impress those who would emulate them of the undesirable consequences of crime.
Potential offenders discount the negative consequences of crime by the improbability of being caught.
To be an effective deterrent, punishment would have to be so severe that even those who did not believe that they were going to be caught would not take the risk.
In practice, the criminal justice system strives to achieve deterrence, but not at the expense of proportionality in punishment.
The idea is that that punishment should prevent criminals from committing additional crimes.
Contemporary American society resorts to imprisonment or, in extreme cases, execution to rid itself of seriously threatening behavior.
While nearly everyone favors incapacitation of violent offenders, in practice incapacitation extends beyond the execution or incarceration of violent criminals.
Perhaps the loftiest goal of the criminal justice system, rehabilitation means changing the offender to function in civil society without resorting to criminal behavior.
Rehabilitation entails various sorts of programs and therapies, each of which is based on its own theory of what causes criminal behavior.
High recidivism rates among those convicted of felonies have made society much less sanguine about its ability to rehabilitate “hardened criminals.”
Felony vs. Misdemeanor Sentencing
Every jurisdiction requires that criminal sentences for adults be imposed in open court, although in many instances juvenile offenders are sentenced in camera.
In misdemeanor cases, sentencing usually occurs immediately on conviction.
In felony cases, where penalties are greater, sentencing may be postponed to allow the court to conduct a presentence investigation.
The presentence report sets forth the defendant’s history of delinquency or criminality, medical history, family background, economic status, education, employment history, etc.
Much of this information is obtained by probation officers, who interview defendants’ families, friends, employers, etc.
In addition, most jurisdictions allow courts to order physical or mental examinations of defendants.
This information can be very useful to a judge who must determine a sentence that is at once fair, humane, and meaningful.
After the presentence report is completed, a sentencing hearing is held.
At this hearing, the court considers the evidence received at trial, the presentence report, any evidence offered by either party in aggravation or mitigation of sentence, and any statement the defendant wishes to make.
Most jurisdictions require judges to hear arguments concerning various sentencing alternatives.
Sentencing is a “critical stage” of the criminal process, and counsel must be supplied to indigent defendants .
Statutory Approaches to Sentencing Indeterminate Sentencing: Judges sentence offenders to prison for unspecified periods. Corrections officials determine how long offender is held. Determinate Sentencing: Judges impose sentences within a range of minimum and maximum penalties. No possibility of early release . Indefinite Sentencing : Judges impose sentences within a range of prescribed minimum and maximum penalties. Early release from prison possible. Definite Sentencing : Sentence set by the legislature with no leeway for judges or corrections officials to individualize punishment .
Punishments for Felonies under Texas Law Level of Crime Punishments Examples of Crimes Capital Felony Death or life imprisonment Capital murder First-Degree Felony Life imprisonment or 5--99 years and max. fine $10,000 Felony murder Aggravated sexual assault Armed robbery Theft ($200,000 or more) Second Degree Felony 2-20 years and max. fine $10,000 Aggravated kidnapping Theft ($100,000 or more) Robbery Third Degree Felony 2-10 years and max. fine $10,000 Involuntary manslaughter Theft (under $20,000) Aggravated perjury
By the end of 1998, 27 states and the District of Columbia required violent offenders to serve at least 85 percent of their prison sentences, up from 5 states in 1993.
Another 13 states have adopted laws requiring violent offenders to serve a substantial portion of their sentence before being eligible for release.
As a result, about 70 percent of prison admissions for a violent offense in 1997 were in states requiring offenders to serve at least 85 percent of their sentence and more than 90 percent were in states requiring at least 50 percent of the sentence to be served.
In most instances where defendants are convicted of noncapital crimes, courts are authorized to suspend the imposition of sentence and place defendants on probation or under community control for some determinate period.
Statutes often require courts to impose certain conditions on a defendant whose sentence is suspended.
Of course, if the defendant violates conditions set by the court, the original sentence may be imposed.
A suspended sentence is most often used for first offenses or nonviolent offenses.
In fact, some state statutes specifically prohibit judges from suspending sentences in cases involving the most serious violent felonies.
Credit For Time Served
When the trial court sentences a defendant to incarceration, it generally allows the defendant credit against any term of incarceration for all time spent in custody as a result of the charge for which sentence is imposed.
Federal Sentencing Reform Act of 1984
Instituted federal sentencing guidelines
Explain the “grid” system
Appeal from upward and downward departures
United States v. Booker (2005)
Probation and Parole
Probation and parole are both types of community supervision.
Jurisdiction over probation belongs to the sentencing Court; and over parole belongs to the Parole Board.
What factors are considered when deciding whether to grant parole?
The Board duly considers all of the following factors:
nature of the offense
prior criminal history
length of time served
community support or opposition
The First American Penitentiary
The first American penitentiary was established in Philadelphia in 1790 in the Walnut Street Jail, a building formerly operated as a city jail.
The Corrections System
City and County Jails
Probation and Parole
At midyear 2004, 2.1 million people (1 in every 138 U.S. residents) were in prison or jail.
Size of the Prison Population
Overall, corrections authorities incarcerated 2,212,475 prisoners at the end of 2003:
Federal and state prisons, 1,387,848
Local jails, 691,301
Juvenile facilities, 102,338
Territorial prisons, 16,494
Bureau of Immigration and Customs Enforcement (Immigration and Naturalization Service), 10,323
Military facilities, 2,165
Indian country jails, 2,006
Source: BJS Report, November 2004
Racial Breakdown of Prison Population
Among the 1.4 million inmates sentenced to more than one year at year-end 2003, an estimated 44 percent were black, 35 percent white, 19 percent Hispanic and 2 percent of other races.
Source: BJS Report, November 2004.
Racial Differences in Incarceration Rates
An estimated 12.6 percent of all black males aged 25-29 were in prisons or jails, compared to 3.6 percent of Hispanic males and 1.7 percent of white males.
Based on current rates of first incarceration, an estimated 32% of black males will enter State or Federal prison during their lifetime, compared to 17% of Hispanic males and 5.9% of white males.
Source: BJS Report, April 2005
Women in Prison
From June 30, 2003, to June 30, 2004, the number of women under the jurisdiction of State and Federal prison authorities grew from 100,384 to 103,310, an increase of 2.9%.
During the same time period, the number of males confined rose at about 2%.
Historically, state and federal courts were unreceptive to claims brought by prisoners.
In the late 1960s, judicial perspectives began to change as federal and state tribunals examined prison conditions and policies.
As the courts signaled their willingness to scrutinize the prisons, litigation in this area mushroomed.
“ The 8th Amendment’s ban on inflicting cruel and unusual punishments ‘proscribes more than physically barbarous punishments.’ It prohibits penalties that … transgress today's ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’ Confinement in a prison … is a form of punishment subject to scrutiny under 8th Amendment standards.”
-- Justice John P. Stevens, writing for the Supreme Court in Hutto v. Finney (1978)
“ Conditions in prison must not involve the wanton and unnecessary infliction of pain, nor may they…deprive inmates of the minimal civilized measure of life's necessities.... But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.”
Justice Lewis Powell, writing for the Supreme Court in Rhodes v. Chapman (1981)
Although the Supreme Court has said that “the Constitution does not mandate comfortable prisons,” lower federal courts have intervened to limit the number of inmates who can be housed in some prisons.
The public is relatively unconcerned about prison overcrowding, but prison officials often welcome judicial intervention.
Prison overcrowding makes it considerably more difficult to control inmate populations.
Prison Litigation Reform Act of 1996
Prisoners have to first exhaust the prison’s grievance procedure before filing a lawsuit. If a prisoner files suit before exhausting prison’s grievance procedures, the suit is likely to be dismissed.
Prisoners have to pay their own court filing fees. If they don’t have the money for these fees up front, you can pay the filing fee over a period of time by having monthly installments taken out of their prison commissary account. Court filing fees will, however, not be waived.
Prison Litigation Reform Act of 1996
There must be proof of actual violations before judicial decrees regarding prison conditions can be issued.
Courts must take the public safety into serious consideration when decreeing changes in the operation of the criminal justice system.
Only panels of three federal judges can order early release for defendants, and only as a last resort.
Damage awards against prisons or their personnel shall be paid directly to satisfy any outstanding restitution orders, with the remainder forwarded to the prisoner.
Effect of the PLRA
The PLRA has resulted in a 40% decrease in prisoner lawsuits nationally.
Source: Roger Hanson, “Congress, Courts and Corrections: An Empirical Perspective on the Prison Litigation Reform Act,” Notre Dame Law Review , August 2003.
300,000 male prisoners are raped or sexually assaulted each year (compared with 240,000 women raped or sexually assaulted outside prison).
22% of prisoners have been the victims of prison rape.
Prisoners have nearly six times the AIDS-infection rate of the population as a whole.
In Farmer v. Brennan (1994), the Supreme Court ruled that deliberate indifference to the substantial risk of sexual assault violates prisoners' rights under the Cruel and Unusual Punishments Clause of the Eighth Amendment.
Prison Rape Reduction Act of 2003
The new Act creates a Commission to examine all issues relating to the problem and requires the Department of Justice to provide assistance to federal, state, and local officials.
It envisions the development of national standards applicable to the federal prisons with provisions for grants to encourage the states and local authorities to adopt such standards .
The Death Penalty
Although already in decline, the death penalty was in widespread use when the Constitution was adopted—not only for murder but also for an array of lesser offenses.
The Due Process Clauses of the Fifth and Fourteenth Amendments explicitly recognize, although they do not necessarily endorse, the death penalty:
“ No person … shall be deprived of life, liberty or property without due process of law.”
Key Warren Court Opinion
In Trop v. Dulles (1958), Chief Justice Warren indicated that the Cruel and Unusual Punishments Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
Changing Public Attitudes
By the 1960s, it was clear that public support for the death penalty had diminished substantially.
By 1966, public opinion polls were finding that a majority of Americans opposed capital punishment.
Reflecting this change in societal attitudes, only two persons were executed in the United States between 1967 and the Supreme Court’s decision in Furman v. Georgia (1972), which struck down the Georgia death penalty law.
Furman v. Georgia (1972)
Five justices voted to strike down Georgia’s death penalty statute.
Two of the five justices—Brennan and Marshall—held that the death penalty itself was cruel and unusual punishment, given the “evolving standards of decency.”
Throughout their subsequent tenure on the Court, Brennan and Marshall steadfastly maintained the position that the death penalty is inherently unconstitutional.
Furman v. Georgia (cont.)
Of the five justices who voted to invalidate the death penalty in the Furman case, Justice Stewart’s opinion seems to have been the most influential.
For Stewart, the problem with the death penalty was not the punishment itself but the manner in which it was being administered.
Trial juries were being left with virtually unfettered discretion in deciding when to impose capital punishment.
The result, according to Stewart, was that the death penalty was “wantonly and . . . freakishly imposed.”
Gregg v. Georgia (1976)
The Supreme Court upheld Georgia’s revised death penalty statute by a vote of seven to two.
The Court was satisfied that this scheme had sufficiently addressed the evils identified in Furman .
Thirty-eight states now have death penalty statutes modeled along the lines of the law upheld in Gregg .
These statutes create special procedures in death penalty cases designed to make the decision as to who dies more rational and fair.
Reinstatement of the Death Penalty
Shortly after the death penalty was effectively reinstated by the Supreme Court’s Gregg decision, executions in the United States began anew.
On January 17, 1977, the state of Utah executed convicted murderer Gary Gilmore by firing squad.
Between the date of the Gilmore execution and the end of 2003, 942 prisoners were executed in the United States.
Today, there more than 3500 persons under sentence of death in thirty-six jurisdictions (thirty-four states, the U.S. military, and the federal government).
Death Penalty Procedures
Prosecution Must Announce Intention to Seek Death Penalty
Death Qualification of the Jury
Aggravating and Mitigating Factors
Victim Impact Evidence
Mandatory and/or Expedited Appeal
The Federal Death Penalty
In May 2001, Timothy McVeigh put to death by lethal injection for his role in the bombing of the federal office building in Oklahoma City in 1995.
In his federal trial, McVeigh was convicted of twenty-eight counts of murder of a federal law enforcement agent on active duty.
Before the McVeigh execution, the federal government had not executed anyone since 1963.
The Debate Over Deterrence
One of the most intense battles among academicians in the field of criminal justice has been waged over the alleged deterrent value of the death penalty.
At this point, the evidence appears to be mixed, making firm conclusions impossible.
Whatever the possible deterrence value of the death penalty, its actual deterrent effect is reduced by the years of delay between sentencing and execution.
Murder Rates and Executions by Region 1976-2003 REGION ‘ 03 ‘ 02 ’ 01 942 EXECUTIONS South 6.9 6.8 6.7 776 West 5.7 5.7 5.5 61 Midwest 4.9 5.1 5.3 102 Northeast 4.2 4.1 4.2 3 NATIONAL AVG. 5.7 5.6 5.6
Is the Death Penalty Racially Discriminatory?
In a 1990 report, the U.S. General Accounting Office concluded that available research demonstrated “a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty.…”
Similarly, in 1994, the U.S. House of Representatives Subcommittee on Civil and Constitutional Rights concluded that members of racial minorities were being disproportionately prosecuted under the federal death penalty law.
According to the Death Penalty Information Center, of the 133 defendants authorized for death penalty prosecution from 1988 to 1998, 76% were members of racial minorities.
However, for a particular defendant to succeed in challenging his death sentence, the defendant must show discrimination in his or her particular case.
McCleskey v. Kemp (US Sup. Ct., 1987)
Is the Death Penalty Racially Discriminatory?
Restricting the Death Penalty
“ A sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.”
Justice Byron White, Coker v. Georgia (1977)
The Mental Illness Issue
In Ford v. Wainwright (1986), the Supreme Court held that the Eighth Amendment bars the execution of a person who is insane.
Writing for a plurality of justices, Justice Thurgood Marshall declared that “It is no less abhorrent today than it has been for centuries to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications.”
Execution of Juvenile Offenders
At least 366 juvenile offenders have been executed in the U.S.
Twenty-two of these occurred during the period 1973-2003, constituting 2.6% of the total of the 859 executions during this period.
Almost two-thirds of the recent executions of juvenile offenders have occurred in Texas.
The most recent execution of a juvenile offender was in Oklahoma on April 3, 2003.
ROPER v. SIMMONS (3-1-05)
The 8th and 14th Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.
“ It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. … The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”
Justice Anthony Kennedy for the Court
The Mental Retardation Issue
Persons on death row are much more likely to have low IQ.
Does this make them less culpable or more deserving of mercy?
Penry v. Lynaugh (1989)
“ Mental retardation is a factor that may well lessen a defendant’s culpability for a capital offense. But we cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person ... simply by virtue of his or her mental retardation. So long as sentencers can consider and give effect to mitigating evidence of mental retardation in imposing sentence, an individualized determination whether ‘death is the appropriate punishment’ can be made in each particular case.”
Justice Sandra Day O’Connor for the Supreme Court
Atkins v. Virginia (2002)
“ It is not so much the number of these states that is significant, but the consistency of the direction of change. . . . [There is] powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.”
Justice John P. Stevens for the Supreme Court
Current Public Opinion on the Death Penalty
A recent Gallup Poll found public support for the death penalty at 74% nationwide.
Support for capital punishment dropped to 56% when respondents were given the alternative sentencing option of life without parole.
A recent CBS News Poll found the public more evenly divided on the death penalty.