Sentencing

2. Sentencing • Sentencing—the imposition of a criminal sanction by a judicial authority. • Most sentencing decisions are made by a judge, though in some cases, especially death-eligible cases, juries are involved.

3. Traditional Sentencing Options • Imprisonment • Fines • Probation • Death

4. Goals of Sentencing • Five goals influence modern sentencing practices: • Retribution • Incapacitation • Deterrence • Rehabilitation • Restoration

5. 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.”

6. 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 U.S., as evidenced by the increase in prison populations.

7. 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

8. 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. Deterrence

9. 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.

10. 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.

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

12. Indeterminate Sentencing • 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.

13. Criticisms of Indeterminate Sentencing • 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.

14. Structured Sentencing • Structured sentencing developed, in part, as a response to the disparity in sentencing of the indeterminate model. • Determinate sentencing • Voluntary/advisory sentencing guidelines • Commission-created presumptive sentencing

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

16. Voluntary/Advisory Sentencing Guidelines • Recommended sentencing policies that are not required by law but serve as guides for judges. • “Sentences” are based on past practices.

17. Commission Based Presumptive Sentencing • … model of punishment that meets the following conditions: • Proper sentence is presumed to fall within the range authorized by sentencing guidelines. • If judges deviate from guidelines, they must provide written justifications. • Sentencing guidelines provide for some review, usually by an appellate court.

18. Presumptive Sentencing Guidelines • The federal government and 16 states now employ sentencing guidelines. • Guideline jurisdictions generally allow judges to take into account aggravatingand mitigating circumstances.

19. 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. Aggravating and Mitigating Factors

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

21. 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.

22. Federal Sentencing Guidelines • The U.S. Sentencing Commission • Established under Sentencing Reform Act of 1984 and took effect in November 1987. • 9 member commission set minimum sentences for certain federal offenses commission meets yearly to review guidelines.

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

24. Plea Bargaining Under the Guidelines • 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.

25. The Legal Environment of Structured Sentencing • Apprendi v. New Jersey (2000)—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….

26. The Legal Environment of Structured Sentencing • Blakely v. Washington (2004)--invalidated any state sentencing schema that allowed judges, rather than juries, to determine any factor that increases a criminal sentence, except for prior convictions. • This holding was reinforced in Cunningham v. • California (2007).

27. The Legal Environment of Structured Sentencing • 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.

28. 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.

29. Three Strikes Laws • Some states have “Three Strikes Laws,” which require mandatory sentences (sometimes life without parole) when convicted of third serious felony. • The intent is to deter known and potentially violent offenders and to incapacitate repeat criminals for long periods of time.

30. 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.

31. Presentence Investigation (PSI) Report • PSI Reports provide judges with the backgrounds on convicted defendants awaiting sentencing. • Typically, prepared by probation or parole officers. • Include a sentencing recommendation.

32. The Victim – Forgotten No Longer • A grassroots movement began in the 1970s. • Today, victims’ assistance programs help victims understand the system and their rights, get counseling, file civil suits, and recoup financial losses. • Victim rights advocates want to add an amendment to the U.S. Constitution. • 30 states have amended their constitutions.

33. Victim Compensation • Restorative justice programs provide the basis for victim compensation funds. • States have legislation providing monetary payments to help certain victims. • The USA PATRIOT Act provides compensation for victims of terrorism and their families.

34. Crime Victims’ Rights Act • The Crime Victims’ Rights Act is part of the Justice • For All Act of 2004. It grants victims of federal crimes the right to: • Be reasonably protected from the accused. • Reasonable, accurate, and timely notice of any public proceeding involving the crime, or any release or escape of the accused. • Be included in any such public proceeding. • Be reasonably heard at any public proceeding involving release, plea, or sentencing. • Confer with the federal prosecutor handling the case. • Full and timely restitution as provided by law. • Proceeding free from unreasonable delay. • Be treated with fairness and with respect for the victim’s dignity and privacy.

35. Victim Impact Statements • 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.

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

37. Fines • 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.

38. 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. Fines

39. Day Fines • 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 US.

40. 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).

41. The Extent of Death Penalty Statutes • Capital punishment is a sentencing option is 35 states and the federal government. • States vary considerably with regard to the number of death sentences given and the number of executions.

42. FIGURE 11–3 Court-ordered executions carried out in the United States, 1930–2008. Court-Ordered Executions Carried Out in the United States, 1930- 2008

43. 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 a option in at least one state.

44. Habeas Corpus Review • Today, the average time before execution is 12 years and 9 months. • 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.

45. 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.

46. 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 Has been used on innocent people and may be again Not an effective deterrent Imposition is arbitrary and discriminatory Far too expensive Reduces society to the level of the criminal Abolitionist and Retentionist Positions on Capital Punishment

47. The Courts and the Death Penalty • In re Kemmler (1890) • Furman v. Georgia (1972) • Gregg v. Georgia (1976)

48. The Death Penalty and Innocence • Claims of innocence are being partially addressed by recently passed state laws that mandate DNA testing of all death row inmates in situations where DNA might help establish guilt or innocence. • The Innocence Protection Act (2004) provides federal funds to help analyze DNA at crime labs throughout the country.

49. The Death Penalty and DNA • The Death Penalty Information Center claims that 133 people in 25 states were freed from death row between 1973 and 2009 after it was determined that they were innocent.

50. FIGURE 11–4 Number of DNA-based exonerations by state since 1989. Number of DNA-Based Exonerations by State since 1989