Chapter 11 Punishment and Sentencing

1. Chapter 11Punishment and Sentencing

2. Punishment Options Through Time • Options now and in the past – people have been quite inventive • Death: done in all kinds of manners • Physical pain: amputation, flogging, branding • Loss of resources: fine, restitution, community service, privileges (gun ownership, legal rights – civil death) • Loss/restriction of liberty: jail, prison, probation, parole • Shame and ostracism: dunking, stocks, scarlet letter, sex offender registration, chain gangs • Intermediary punishments: electronic, halfway houses, boot camps, drug courts

3. Punishment Trends • From punishing the body to punishing the mind • From physical pain to financial pain • The standard of proportionality – make punishment fit the crime • The rise of the prison • The decline of public punishment

4. The Current Punishment Ladder Ranging from restorative justice to the death penalty • Restorative justice • Fines and day fines • Probation (about 4 million in 2006) • Treatment and control • Conditions and Revocation • Intensive Probation - ISP • Intermediary sentences (between release in liberty and imprisonment) • Drug courts; community service; house arrest, electronic monitoring; restitution and forfeiture; “halfway houses”; boot camps • Imprisonment: jail and prison (over 2 million in 2006) • Death

5. Goals of Sentencing • Deterrence: general and specific • Incapacitation: general and selective (career criminal) • Punishment: retributive justice, just deserts • Rehabilitation • Restitution • Reintegration

6. Goals of Sentencing

7. The Goals of Modern Sentencing • General Deterrence • Punishing the offender serves to convince society, or potential criminals, not to commit crimes • Difficulty in determining the right amount of punishment • Some believe recent declines in crime rates are result of tough sentences • Assumes people consider consequences before acting • Specific Deterrence • Will deter that particular offender from committing future crimes

8. The Goals of Modern Sentencing (cont.) • Incapacitation • Confinement so that offender cannot commit more crimes; keeps society safer; prevents future crimes • General: all who sit in prison cannot commit crimes, except against other people in the prison (guards, staff, fellow prisoners) • Specific: target repeat offenders or career criminals who commits many offenses; locking them up is a cost effective way of preventing many crimes • The estimates of how many crimes are prevented by each incapacitation vary wildly

9. Goals of Sentencing (cont.) • Punishment/Retribution/Just Desert • Those who commit crimes deserve to be punished • “A just measure of pain” proportional to the harm done by the crime is the proper sentence • The sentence should be clear and certain (not open-ended)

10. The Goals of Modern Sentencing (cont.) • Rehabilitation • Based on treatment philosophy that offenders can be reformed • Sometime called the medical model – crime is an illness which can be cured with proper treatment • Requires that treatment services are available for convicted offenders while in prison or under state control

11. Goals of Modern Punishment (cont.) • Equity/restitution • It is fair and just for criminals to repay society and their victims • The concern is for the victim – the harm done them should be made good • Works better for property crimes, since the harm done can be calculated, but less so for person crime (e.g., what is the proper restitution for sexual assault?)

12. Goals of Modern Punishment (cont.) • Reintegration • Almost all convicted offenders sentenced to prison will return to society at some time • A non-reintegrated offender is likely to commit another crime, hence is a threat to others • E.g., long prison sentences practically guarantee that the ex-convict will re-offend, will not become a law abiding citizen • Sentences should not make it impossible for ex-convicts to be reintegrated into society • Consider alternative sentences which are less likely to complicate or undermine reintegration

13. Imposing the Sentence • Except for mandatory sentences, judges rely on a variety of information • Sentencing guidelines • Victim impact statements • Pre-sentence investigation reports • Concurrent sentences: person serves sentences for two or more crimes at the same time • Consecutive sentences: sentences for two or more criminal acts that are served one after the other • Effects of good time can shorten sentences

14. Sentencing Models • Indeterminate sentences • Based on a treatment philosophy which must fit the needs of the offender • Sentence has a minimum and maximum • Inmate can earn time off for good behavior • Early release but continued supervision • Your prison sentence is completed when a parole board decides you are safe to return to society

15. Sentencing Models (cont.) • Determinate sentences • Sometimes referred to as structured sentences • Prompted by dissatisfaction with disparity and uncertainty of indeterminate sentencing. • Defendants serve specified number of years • Truth in sentencing laws – sentences, or percentage of, imposed by judge must be served • Use of sentencing guidelines

16. Why Sentencing Guidelines • Limit judicial discretion, ensure greater consistency, less disparity in sentencing • Constructing Guidelines: Who makes these • Consultants, appointed commissions, legislatures • Constructing the sentencing table • Two Underlying principles: Proportionality and Criminal History • proportionality: the severity of punishment should be proportional to the seriousness of the crime • criminal history: the severity of punishment should increase for repeat offenses

17. Sentencing Guidelines • Constructing the Sentencing Table (cont.) • Two decisions: Horizontal equity and vertical equity • Vertical equity: Which crimes are more or less serious than other crimes? • How much greater should the punishment be as go up vertical equity? • Horizontal equity: which crimes are similar in seriousness to other crimes • Presumptive sentence: midpoint and ranges • Going outside the range: allowed or not; mitigating and aggravating circumstances

18. Sentencing Models (cont.) • Effectiveness of guidelines • They are too rigid, harsh and overly complex • Take into account juvenile convictions • Result in longer prison terms • U.S. v. Booker held federal guidelines were unconstitutional • they are advisory, not mandatory • The impact of sentencing guidelines on plea bargaining

19. The Justice of Sentencing Guidelines • Are guidelines fair? • Limit the capacity of judges to tailor punishment to the nature of the offense and the offender • Biased against African-Americans and other minorities – criminal histories which affect sentences may reflect prior discrimination

20. Sentencing Models (cont.) • Mandatory Sentences • Bars judicial discretion • May exclude probation • May exclude parole • May use minimum or maximum terms but most commonly requires a fixed prison sentence • Have been one factor contributing to the increased the size of the correctional population to record levels

21. Sentencing Models (cont.) • Three-strikes laws • Provides lengthy prison terms for anyone convicted of three felonies – many of the statutes impose a life sentence • May involve relatively trivial felony offenses • Experts argue whether it has any deterrent effect • Can a prior guilty plea (after plea bargaining or an Alford plea) be reversed if it leads to third strike?

22. Sentencing Models (cont.) • Truth in sentencing • Require offenders to serve a substantial portion of their prison sentence behind bars • Parole eligibility and good-time credits are restricted or eliminated

23. How People are Sentenced • In 2002 more than 1 million adults were convicted of a felonies in a single year. • About 2/3 of felons convicted in state court were sentenced to a period of confinement. • The average sentence in state courts was 4½ years. • Offenders generally served only 51 percent of their sentence.

24. Sentencing Patterns • Sentences tend to be quite severe • For example, the average prison sentence for violent offenders is 92 months=seven years and eight months, or about the time for two college BAs

25. How People are Sentenced (cont.) • Factors that effect sentencing: • Seriousness of the crime • Offender’s prior record • Whether offender used violence • Whether offender used a weapon • Whether the crime was committed for money

26. How People are Sentenced (cont.) • Factors That Effect Sentencing (cont.): • Social class – lower class members may expect to get longer sentence • Gender – chivalry hypothesis; women receive more favorable outcomes • Age – more lenient with elderly offenders • Victims with “negative personal characteristics” – defendants may receive shorter sentences • Racial status – minorities receive longer sentences in some jurisdictions

27. Death Penalty • The most serious and irreversible punishment • Arguments for and against: can think about the D-P at five levels • Personal – could I personally kill someone? • Philosophical – is it just to kill someone (adults, non-adults, mentally disabled)? • Effectiveness – does the death penalty deter others and save lives? • Can it be implemented as a policy in the correct way? • Is it discriminatory when applied? • Is it accurate – do innocent people get sentenced and executed? • Is the process done fairly – proper defense? • Can we afford it financially: trials and appeals?

28. Death Penalty (cont.) • The death penalty is the outcome of a process; it is not a philosophical issue in practice. • Prosecutors have to charge “death eligible” – using aggravating circumstances • There are two trials: • Guilty or not guilty trial • Sentencing trial: a jury, not a judges, has to decide whether to impose the death penalty after a guilty verdict; jury must be “death qualified” • Automatic appeals on every death penalty conviction • Offenders sentenced to death row tend to spend many years there, before execution, dying of natural causes, violence by other inmates, or being set free

29. Capital Punishment • More than 14,500 executions since 1608 • Supreme Court has limited crimes for which death penalty may be imposed • Practically all executions are for aggravated murder • Death penalty for murder is used in 38 states and by the federal government

30. Capital Punishment (cont.) • Approximately 3,400 people are currently under sentence of death • Between 75 and 100 people are executed each year • In 2004, 59 people were executed • Lethal injection primary mode of execution; • earlier methods, hanging, electric chair, gas chamber, shooting are rarely used or allowed • Lethal injection, done out of sight, is considered the most civilized form of killing a convict • Lethal injection currently challenged as cruel and unusual punishment • Unease over potential for error has caused decline in number of inmates on death row and executions

31. Capital Punishment (cont.) • Arguments for the death penalty • Incapacitation: when you are dead you cannot kill again • Deterrence: other murders will be prevented • Morally correct: retributive justice • Proportional to the crime: you kill, we kill you • Reflects public opinion: public supports the death penalty; support declines to about 50 percent if people are told that life in prison without parole is an alternative • Unlikely chance of error: the system works

32. Capital Punishment (cont.) • Arguments against the death penalty • Possibility of error • Unfair use of discretion • Misplaced vengeance • Weak public support • Little deterrent effect – causes more crime than it deters • Always a hope of rehabilitation • Racial, gender, and other bias • Brutalization effect • Expensive and morally wrong

33. Capital Punishment (cont.) • Legal Issues • Furman v. Georgia: Discretionary imposition is unconstitutional • Gregg v. Georgia: Must consider aggravating and mitigating circumstances • Ring v. Arizona: Jury must impose sentence – not judges • Atkins v. Virginia: May not execute mentally ill • Roper v. Simmons: Must be 18 years old to be sentenced to death

34. Deterrence and Capital Punishment • Deterrent effect of capital punishment • Three methods of research used to try to determine if death penalty deters crime • Immediate-impact studies • Time-series analysis • Contiguous-state analysis • Most researchers have failed to show any deterrent effect of capital punishment • General consensus by researchers is that capital punishment has little or no deterrent effect

35. How Does Deterrence Work? • Affects motivation • Seeks changes in future behavior • By changing the calculus of consequences • More effective if: certain, swift, and severe • Certainty and celerity seem to matter more than severity • Depends on how much likely offenders know about certainty, celerity, and severity

36. How Does Deterrence Work? (cont.) • Deterrence works for some behaviors and individuals but not others • Traffic: works by personal experience • Why work in traffic: immediacy (celerity) and low costs for behavior change (slow down when see police car) • Murder and the death penalty • Many homicides are committed for emotion and passion – little calculation • Some are committed for pay, not affected by possible consequences • Difficult to calculate consequences: costs and benefits • Miscalculations of certainty (won’t get caught) • Long delays between sentence and execution

37. Deterrence • Deterrence as policy: • Who can or needs to be deterred? • targeting deterrence • % no need – won’t commit murder • % could be deterred by consequences • % cannot be deterred by consequences • But percentages for each group are unknown • Most deterrence policies will change severity; easier than changing celerity or certainty • The likelihood to over-deter • Severity will target the least able to be deterred • Inefficient use of resources – less severity could deter a lot of people

38. The Deterrence Curve • Every person has a deterrence curve: the level of punishment which would deter her/him from committing a crime • For most people, it will take more punishment to deter them from more serious crime and less punishment to deter from non-serious crime • For some people, even little potential punishment will deter them from all crimes • For other people, even severe potential punishment will not deter them from most crime • The relationship between severity of punishment and deterrence can be plotted on a deterrence curve

39. False Convictions • Over 120 death row inmates released since 1976, for having been falsely convicted – they were innocent of the crime for which they were sentenced to death • It is pretty certain that innocent people have been executed • Race/ethnic composition of prisoners released through DNA evidence (not all from death row) • 183 total: 106 Black, 47 White, 18 Latino, 1 Asian American, rest unknown (2003)

40. Death Penalty (cont.) • Reasons for false convictions • Mistaken eyewitness identification • Inaccurate forensics • False confessions • Jail house informants • Bad defense lawyers • Misconduct by prosecutors and police

41. Discrimination • Does race, gender, minority status affect who is sentenced to death and who is executed? • About 53 percent of executed in the US since 1976 have been African-Americans • There is limited support that race of the offender by itself (most studies look as black-white differences in sentencing) is a factor • There may be a cumulative discriminatory effect, in that at each stage of the process small discriminatory decisions add up • The proportion of Black death row inmates (about 47 percent) is much larger than the proportion of black males in the general population (Practically all death row inmates are male).

42. Discrimination • There is pretty clear evidence that the race of offender and victim taken together matter. • White offenders who kill black victims are much less likely to be charged, convicted, and sentenced to death than are black offenders who kill white victims

43. Fair Process • Most accused of a capital offense are poor and cannot afford a lawyers • Many states provide little money for lawyers who defend those on trial for a capital offense • There are many examples of lawyers doing very little to protect the rights of their clients in capital cases (sleeping while the trial goes on, failing to cross examine witnesses, not objecting to rulings when they should have) • The quality of defending varies from abysmal to excellent