Chapter Topics

2. Chapter Topics The Courtroom Work Group The Many Faces of Plea Bargaining Plea Bargaining and Courtroom Work Groups Forms of Punishment

3. Chapter Topics Normal Penalties and Sentencing Decisions The Fairness of Sentencing The Severity of the Penalty Sentencing Guidelines The Death Penalty

4. The Courtroom Work Group • there is an underlying order to the courtroom • Courtroom Work Group – the prosecutors, defense attorneys, and judges working in in a courtroom • the actors are regular and interdependent • share common goals and work together

5. The Courtroom Work Group • encourages cooperation • contrast with normal thinking about courtrooms as places of conflict • results in expectations such as normal penalties – unwritten, agreed upon sentences that are considered appropriate given the manner in which the crimes were committed and the backgrounds of the defendants • results in a group consensus about the meaning of justice

6. Faces of Plea Bargaining • guilty pleas are common • plea bargaining – the process through which a defendant pleads guilty to a criminal charge with the expectation of receiving some consideration from the state • while not new, plea bargaining continues to cause controversy

7. Types of Plea Agreements • plea bargaining encompasses a wide range of practices • charge bargaining – defendant pleads guilty to a less serious charge than the one originally specified • count bargaining – defendant pleads guilty to one criminal charge • sentence bargaining – defendant pleads guilty on the basis of the promise of a specific sentence

8. The Bargaining Process • plea bargaining varies widely across courts – but there are similarities, important considerations include: • seriousness of the offense – more serious the crime, the harder the prosecutor works • defendant’s criminal record – a prior record results in fewer concessions • strength of the prosecutor’s case – stronger the evidence, the fewer the concessions

9. Why Cases go to Trial • cases go to trial when the parties can’t settle • go to trial based on two factors: • the strength of the prosecutor’s case – defense attorney may recommend trial when the prosecutor’s case is perceived to be weak • severity of the possible penalty – trials are more likely when the penalty is high (i.e., not much to lose in going to trial)

10. The Courtroom Work Group • plea bargaining cannot be explained just by focusing on caseload • an increasing caseload approach to explaining bargaining suggests courtroom actors are machines, more cases, more bargaining • plea bargaining is a result of the shared norms by the members of the courtroom work group about how to handle defendants

11. Presumption of Factual Guilt • in cases that survive initial screening courtroom actors assume a high-degree of defendant guilt • there a tendency for participants to assume guilt and focus their energy instead on how best to negotiate a plea bargain to avoid the time and cost of a trial

12. Costs and Risks of Trial • trials are costly and time consuming • trials present uncertainty (for all participants) • all members of the courtroom work group have a common interest in avoiding trials, which is a rational response to the risks of trial

13. Jury Trial Penalty • the costs of a jury trial are high for everyone, but especially for the government (i.e., jurors, judge, prosecutor, clerk, etc.) • if a defendant move a case forward which other members of the courtroom work group believe should be settled a penalty might result • some empirical evidence supports claim

14. Copping a Plea • historically guilty pleas were informal matters • today the process is structured—realization that a plea of guilty is a waiver of fundamental rights: • presumption of innocence, jury trial, confrontation of witnesses • plea of nolo contendre – “I will not contest it” is a guilty plea but not admission of guilt • Judge’s may refuse pleas

15. Forms of Punishment • common forms of punishment include: imprisonment, probation, and fines • more than 6.5 million adults are under some type of correctional supervision • judge must choose punishment

16. Imprisonment • U.S. relies on imprisonment more than any other Western nation • 1.5 million inmates • number of inmates has tripled during past three decades • many prisons are overcrowded • Few prisoners serve their maximum term • parole is the conditional release of an inmate from prison after a portion of the term has been served

17. Imprisonment • good time is days off a sentence given to prisoners for good behavior and participating in prison educational programs • The length of imprisonment depends on: • criteria used by parole boards • method used by correctional officials to computer good time • the number of people on parole continues to increase—currently over 775,000

18. Probation • principal alternative to imprisonment • granted to more than 60% of offenders • probation is designed to maintain control over offenders while permitting them to live in the community under supervision • supported on two grounds: • prisons are inappropriate places for some • less expensive than imprisonment

19. Fines • fines are one of the oldest and widely used forms of punishment • generate over $1 Billion a year for local governments • often used in conjunction with another type of sanction

20. Normal Penalties and Sentencing • sentencing is a joint decision-making exercise, judges make the decision but all members of the courtroom work group are involved • probation officers play a role – they conduct presentence investigation which often includes a recommendation for an appropriate sentence • each defendant and crime are different, but the work group seeks to standardize sentences using normal penalties factors include: a) seriousness of offense and b) prior record

21. Seriousness of the Offense • the most serious factor in setting normal penalties is the seriousness of the offense • work group examines the “real offense” what really happened not what is charged • most courts employ a rank ordering of offenses going from the most serious—rape and armed robbery to the less serious offenses • a normal sentence is then determined for the seriousness of the crime based on the scale

22. Prior Record • the defendant’s prior record is also important in determining the sentence • a single previous conviction may be sufficient to deny probation • one study showed that prior record had its greatest affect on sentencing for less serious offenses—when the crime is perceived as less serious it is more tolerable for other factors to contribute to the sentencing decision

23. The Fairness of Sentencing • sentencing is the focus of considerable debate • liberals argue that sentences handed down are unfair, conservatives argue that sentences are too lenient • sentences are expected to be a) fair, b) consistent, and c) unbiased • discrimination refers to illegitimate influences in sentencing • disparity refers to inconsistencies in sentencing

24. Sentencing Discrimination • sentencing discrimination studies focus on extralegal variables (e.g., race, age, gender, etc) • studies often contradict one another • studies involving race are the most provocative • legal factors appear to be more important but race does play a role in some sentencing decisions • no clear conclusion

25. Sentencing Disparities • sentencing disparities examines the characteristics of the sentence • researchers focus on geography—are sentences the same across areas and judicial attitudes—do all judges in an area give the same sentence • significant variation in sentencing patterns exist across jurisdictions leading to—the geography of justice

26. Sentencing Disparities • but which judge hands down the decision also counts • numerous studies have shown that judges have different sentencing tendencies—some are known for handing out stiff penalties others appear more lenient • one study found that federal judges appointed by Democratic presidents were more likely than Republican appointees to decide for the defendant

27. The Severity of the Penalty • proposed solution for more crime is often tougher sentences • increasing the severity of the penalty through minimum sentences has been a common theme in criminal justice policy • more sever penalties result in increasing prison populations

28. Prison Overcrowding • increasing prison populations is not without costs • minimum prison standards must be met • the cost is > $70,000 to build a single jail cell and $20,000 - $25,000 to house a prisoner for a year • state’s are finding it difficult to finance prisons and this contributes to the pressure to reduce prisoners early (i.e., parole)

29. Sentencing Guidelines • concerns over the fairness/severity of sentencing has led to major changes in this part of the criminal justice system • historically sentencing was handled by judges with input from the courtroom work group and they had tremendous discretion • over time legislatures have gotten more involved—reducing judicial discretion and requiring more consistent application of sentencing parameters

30. State Sentencing Guidelines • statewide sentencing guidelines require the judge to hand down a particular sentence based on the • severity of the crime, and the defendant’s past criminal history • there are two types of guidelines • voluntary provide general guidiance • mandatory guidelines state what sentence should be imposed, if a judge goes outside the guidelines they must provide justification

31. Federal Sentencing Guidelines • the same pressures at the state level contributed to the development of federal sentencing guidelines in 1987 • they have proven to be very controversial and many courtroom actors have resisted their application • the U.S. Supreme Court in 2005 greatly altered how the federal guidelines are used (U.S. v. Booker)

32. Federal Sentencing Guidelines • first part of the opinion says Congress had given too much authority to judges to make factual decisions in sentencing • the second part of the opinion allows federal judges to continue using the guidelines as advisory • the short and long term impact of Booker is unclear as the Congress and Federal Courts determine the consequences of the decision

33. The Death Penalty • Capital punishment (the death penalty) is the most controversial form of punishment • only a handful of offenders face the death penalty but the number of persons serving a sentence of death has increased consistently since 1976 when the Supreme Court declared it constitutional • opponents believe it is discriminatory, supporters claim that it is a deterrent

34. Eighth Amendment Standards • capital punishment must be consistent with the Eighth Amendment’s prohibition against cruel and unusual punishment • the Supreme Court has heard many Death Penalty cases setting standards and procedures • in Furman v. Georgia (1972) the S. Ct. declared the death penalty unconstitutional

35. Eighth Amendment Standards • in Gregg v. Georgia (1976) the S. Ct. declared state death penalty laws constitutional if they have a bifurcated trial: • in the first phase the jury must consider the guilt or innocence—and decide unanimously the defendant is guilty • during the second phase the jury must consider whether to hand down the death penalty and consider aggravating and mitigating circumstances • jury must be unanimous

36. Eighth Amendment Standards • considerable variation across states • 38 states and the federal government have death penalty laws • Supreme Court has continued to decide cases that impact the imposition of the death penalty • mentally retarded persons may not be put to death (Atkins v. Virginia 2002) • 18 is the minimum age for executions (Roper v. Simmons 2005)

37. Discrimination and Capital Punishment • charges of racial discrimination appear frequently in debates about capital punishment • African Americans have traditionally been overrepresented among death penalty defendants • but other analyses have shown the importance of legal variables • the primary relationship of the offender is an important factor in sentencing

38. Death Row Inmates • approximately 3,400 prisoners are serving a death sentence • the preponderance are in the South • universally male (98.6%) • majority are white, racial minorities overrepresented • most never completed high school • median age is 60 • 11 year average wait between sentence and execution

39. Conclusion • public debate about getting tough crime • the courtroom work group is very important • all actors consider the costs and benefits of going to trial • sentencing has changed over the years—today judges have less discretion than they used to • the death penalty continues to be controversial and the Supreme Court continues to be involved in its application