Ch09b Sentencing

© Prentice Hall 2008
Pearson Education, Inc
Upper Saddle River, NJ 07458
Criminal Justice: A Brief Introduction, 7E
by Frank Schmalleger
1
Sentencing
CHAPTER
9

2
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.

3
 Imprisonment
 Fines
 Probation
 Death
Traditional Sentencing
Options

4
Sentencing philosophies
 Form the basis for various sentencing
strategies
 Are intertwined with issues of religion,
morals, values, and emotions
Sentencing Philosophies

5
1. Retribution
2. Incapacitation
3. Deterrence
4. Rehabilitation
5. Restoration
Goals of Sentencing
Five goals influence modern
sentencing practices:

6
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.”

7
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.)

8
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

9
Deterrence
Specific Deterrence
Seeks 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.

10
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.

11
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.

12
Sentencing
Two models:
 Indeterminate
 Determinate (fixed)
Different sentencing practices have been
linked to each of the goals of sentencing.

13
Indeterminate Sentencing
… A model of criminal punishment
that encourages rehabilitation via
the use of general and relatively
unspecific sentences.

14
 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.

15
 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

16
Criticisms of
Indeterminate sentencing gives
inadequate 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.

17
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)

18
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

19
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.

20
Offender is given a fixed sentence length.
The sentence can be reduced by “good time.”
The use of parole is eliminated.
Determinate Sentencing

21
 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

22
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.

23
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.

24
Aggravating and Mitigating
Factors
Aggravating
Circumstances
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.

25
Federal Sentencing Guidelines
The Comprehensive Crime
Control Act of 1984 established
presumptive sentencing for federal
offenders and addressed truth in
sentencing.

26
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.

27
Federal Sentencing Guidelines
The Violent Crime Control and Law
Enforcement 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.

28
Federal Sentencing
Guidelines
 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

29
Federal Sentencing
Guidelines
 Limit federal judges’ discretion
 Reduce disparity
 Promote consistency and uniformity
 Increase fairness and equity
Purpose of the Guidelines is to:

30
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

31
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

32
An offender may be adjudged, and
sentenced as, a career criminal in a single
hearing.
 “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)

33
Of all federal cases, 90% are the result of
guilty pleas, of which the vast majority
are 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

34
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

35
Blakely v. Washington (2004)—the U.S.
Supreme Court invalidated any state
sentencing 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

36
U.S. v. Booker (2005) and U.S. v. Fanfan (2005)
examined the constitutionality of federal
sentencing 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.

37
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

38
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.

39
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.

40
Before sentencing, the judge may request a
PSI 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

41
 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 financial
losses.
 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

42
 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

43
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

44
The victims’ rights movement also called
for the use of victim impact statements
before 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

45
Modern Sentencing
Options

46
Sentencing is essentially a risk-management
strategy designed to protect the public
while serving the ends of retribution,
incapacitation, deterrence, rehabilitation,
and restoration.
Just as the goals of sentencing vary, so do
the types of sentences. Different goals
mandate different sentences.
Sentencing

47
There are four traditional sanctions:
1. Fines
2. Probation
3. Imprisonment
4. Death
A judge’s discretion to choose the sanction
type varies depending on the structure of
sentencing used within that particular
jurisdiction.
Traditional Sanctions

48
Felony Sentencing in State Courts
Bureau of Justice Statistics, 2004

49
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:

50
Court-ordered Prison Commitments,
1960-2002
Bureau of Justice Statistics, 2004

51
Fines are one of the oldest forms of
sentencing.
Fines may be used alone or in combination
with another penalty.
More than $1 billion in fines are collected
nationwide each year.
Fines

52
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

53
Some critics of fines propose using the
Scandinavian system of day fines.
Day fines are proportional to the severity of
the crime and the financial resources of the
offender.
Day fines have been successfully used in
some jurisdictions in the United States.
Day Fines

54
Death Penalty

55
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).

56
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.

57
Court-Ordered Executions Carried Out in the
United States, 1976-2005
Source: Death Penalty Information Center

58
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)

59
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.

60
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.

61
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.

62
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.

63
The U.S. Supreme Court defined cruel and
unusual methods of execution in In re
Kemmler (1890):
“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.”
The Courts and the Death
Penalty

64
“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)

65
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)

66
Age is a bar to execution when the
offender committed the crime when he
was younger than 18.
Roper v. Simmons
(2005)

67
Most recent appeals challenge state’s capital
punishment laws and tend to focus on the
procedures in sentencing decisions.
Still, most U.S. Supreme Court justices believe
that the “death sentence” is fundamentally
constitutional. It is the means of execution
and the population of those to be executed
(like age and mental inability) that are coming
into question.
Recent Court Challenges

68
 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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Ch09b Sentencing