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Chapter Sixteen Sentencing You have so many options when you sentence. You can put a defendant on probation, order him to be put on work-release and go to a half-way house, or send him to an institution. But what it comes right down to is that there is no alternative that’s any good. I guess you could call it a judge’s dilemma. —Charles Halleck, Judge, Superior Court of the District of Columbia, 1976
KEY WORDS Key terms to understand for this chapter… • Cruel and Unusual Punishment • Definite Sentence • Deterrence • Indefinite Sentence • Indeterminate Sentence • Probation • Rehabilitated • Suspended Sentence
OBJECTIVES After completing this chapter, you should be able to… • Explain the prohibitions against cruel and unusual punishment. • Define the various types of punishment. • Discuss the death penalty issues. • Explain differences between types of sentences. • Discuss the nature of probation. • Define the concept of rehabilitation. • Explain the use of suspended sentences.
History of Punishment • To understand more fully the history of punishmentand its severity, we begin by discussing early societies. • The social world of early mankind comprised separate isolated groups, or clans, an aggregate of families. • the eldest male was the ruler in these ancient societies • If harm was done to a member of the clan by another member, it was the ruler’s task to right the wrong. • other clan members were pressed into service for assistance • If committed by a neighboring clan it was a religious duty of each wronged clan member to avenge the wrong.
History of PunishmentBlood Feud • Belief was that an injury to any clan member was an injury to the entire clan, usually ending with a war. • If the offender could not be located, revenge could be inflicted on any other member of the neighboring clan. • As time passed, avenging the wrong became more of a family responsibility, and the offended family member had first, foremost responsibility to avenge the wrong. • Again, if the offender could not be located, then the revenge would be inflicted on other family members. • known as the blood feud, often brutal and usually ending in the death of the offender
History of PunishmentAtonement • When time passed without a crime’s being avenged, family members often became disenchanted with the blood feud, particularly when not personally offended. • Consequently, members of the offended family became willing to accept money or property in return for not inflicting physical retaliation. • Known as atonement, by the twelfth century, it had grown in popularity & the blood feud all but abolished. • Atonement became a source of revenue for kings or the church, depending on the crime.
History of PunishmentTrial • Not all crimes could be atoned for, so the offender was required to stand trial, and if found guilty, the offender was subjected to punishment prescribed for that crime. • in many instances, the punishment was death • If death was not imposed, the offender was often subjected to other forms of severe physical punishment. • To escape punishment, an offender often entered a church for sanctuary from pursuers attempting to inflict punishment. • the offender was safe as long as he/she remained inside the church
History of PunishmentProtection Within a Church • Sometimes the pursuers surrounded the church and remained there for days to prevent escape, and often the pursuers tried to have the priests or clergy starve the offender into submission. • Usually, priests would have nothing to do with matters that interfered with the holiness of the sanctuary. • the beginning of what became known as the benefit of clergy • Punishment imposed for conviction of a crime was a mandatory sentence carried out regardless of severity. • imprisonment was not used at that time
History of PunishmentImprisonment • The imprisonment of convicted offenders was, and still is, a troublesome and expensive form of punishment. • Imprisonment as a form of punishment was used at common law in England for a few minor offenses • Ecclesiastical courts also imposed imprisonment on convicted clergymen in some instances. • Death, mutilation, and banishment were still the most frequently imposed forms of punishment.
History of PunishmentBanishment • When a convicted person was banished from England, the offender, family & friends, were required to leave. • his property was also confiscated by the king or the churc, and banishment became another source of revenue for both • As late as the early 1800s, England had more than 200 violations carrying a possible death penalty. • Shortly thereafter, imprisonment and banishment to Australia were substituted for the death penalty as a form of punishment.
History of PunishmentEarly America • As the colonies were settled, the colonists brought much of the criminal procedure they knew in England. • retribution or vengeance was still the punishment philosophy • The death penalty was frequently inflicted, in a manner far more inhumane than it had been in England. • Mutilation and corporal punishment—particularly whipping—pillory, stocks & public cage were used. • It is little wonder the framers of the US Constitution included the Eighth Amendment guarantee against “cruel and unusual punishment.”
Punishment by a shower bath at the Auburn, New York, prison. (Source: CORBIS-NY.) History of PunishmentEarly America • After time, the colonists began substituting prison for for the death penalty, allegedly asa more humane punishment. • As retribution was still the primaryforce behind punishment, little consideration was given to the imprisoned offender. • prisoners often died of neglect
History of PunishmentEarly America - Pennsylvania • William Penn is given credit for the first improvement in prison conditions & reforms in punishment imposed. • In 1681, Penn received the charter to a large tract of land, known as Pennsylvania, moved to a new city he named Philadelphia and established a government along the lines of republicanism and religious freedom. • the death penalty was abolished for all offenses but murder • about 1683, a jail was erected to confine offenders • Penn had further reforms in mind, but died in 1718 before they could be completed.
History of PunishmentEarly America - Penalty Reform • Penalty reforms for convicted offenders began after the colonies achieved independence from England. • improvements were made in confinement conditions • A 1786 act provided for imprisonment at hard labor formany crimes that previously carried the death penalty • Although an improvement, more reform was needed. • places of confinement soon became overcrowded, with little supervision. • there was no segregation according to sex, age, or offense • liquor was freely sold to inmates, and prostitution practiced
History of PunishmentPresent Sentencing Procedure • Each rule of conduct written over history has required a punishment established for convicted violators. • usually, the more serious the crime, the more severe the punishment • which punishments should be inflicted for each particular crime has plagued society for centuries • As time passed, imprisonment became the accepted way of punishing an offender, and society turned from retaliation to the isolation philosophy of punishment. • instead of trying to get even with the offender, society attempted to protect itself by imprisonment
History of PunishmentPresent Sentencing Procedure • When penitentiaries were first built in the US, they were built with the idea of confining the offenders in maximum security to isolate them from society • Offenders, called inmates, spent much time locked in their cells, and required to wear a distinctive uniform. • for a long time, the uniform was made of black & white striped material • Many of the penitentiaries built in the late 1800s and early 1900s are still in use. • In most instances, there were no guidelines to assist in determining how long an offender should be confined.
History of PunishmentIsolation • Early in our history, sentencing of an offender to was solely the responsibility of the trial judge, and much depended on the judge’s attitude & philosophy. • When legislators began to establish penalties for each crime, they concentrated on the felony. • There is considerable difference among states on the sentences that may be imposed. • in some states, minimum and maximum number of years an offender must serve are defined for conviction of a crime • in other states, the law sets forth the maximum length of imprisonment that may be imposed
Sherelle Purnell, eighteen, of Salisbury, Maryland, wearinga sign reading “I Was Caught Stealing Gas” in front of theTiger Mart gas station she stole from in Salisbury, Maryland. Though Wicomico County District Court Judge D. WilliamSimpson authorized the punishment, the unconventionalsentence was the brainchild of Tiger Mart store managerJan Phipps. History of PunishmentOther Penalties • While imprisonment became one form of punishment, it is not the only penalty that may be imposed on a convicted offender. • The types of sentences possible for criminal offenders are set forth in the codes ofthe various states.
History of PunishmentOther Penalties • Penalty is still referred to as punishment in most codes, and may be one or a combination of the following: imprisonment; fine; probation; suspended sentence; and in some states, the death penalty. • removal from, and disqualification to hold public officeare also forms of punishment in some states • In a few jurisdictions, the terms punishment and sentence imply imprisonment. • thus, probation is not considered to be a sentence but rather a disposition of the case
History of PunishmentOther Penalties • In most jurisdictions, the term sentence is the judgment of the court after conviction. • Sentence is the final disposition of the trial, whether by imprisonment, suspended sentence, probation, or fine. • punishment is sometimes more closely associated with imprisonment than are other forms of sentence • technically, punishment means any unpleasantness the convicted offender may suffer • Restrictions on the offender: imprisonment, suspended sentence, or probation, are forms of unpleasantness. • as is financial hardship imposed by fines
History of PunishmentDeterrence • As reformists continued to study punishment, its purpose shifted from isolation theory to deterrence. • the movement to rehabilitate the offender followed • The isolation approach has not been abandoned, as there are inmates from whom society is safe only during their confinement. • neither deterrence nor rehabilitation is applicable to some hardened criminals • Whatever sentence is imposed, its primary purpose is for the protection of society.
Types of Sentencing and SentencesMisdemeanor • On a misdemeanor conviction, statutes of most states provide the penalty imposed shall not exceed one year of imprisonment and/or a $1,000 fine. • most jurisdictions permit the judge to suspend the sentence and place the offender on probation, grant probation with provision that a certain amount of time must be spent in imprisonment; or merely to impose a fine • The judge may impose a sentence for one year on multiple charge and have them run consecutively. • a consecutive sentence must be served before the next begins • concurrent sentences run at the same time
Types of Sentencing and SentencesFelony • In a majority of the states, it is still the prerogative of the trial judge to impose the sentence. • In some states, the jury will impose the sentence • In a few states, a jury must be impaneled to impose the sentence even though a jury trial has been waived. • Generally, depending on jurisdiction, types of sentence or imprisonment that may be imposed are • definite sentence • indefinite sentence • indeterminate sentence
Types of Sentencing and SentencesDefinite Sentence • As imprisonment began to be substituted for other punishment, there were few guidelines to assist judges. • As retribution, or social retaliation, was the primary purpose, lengthy sentences were often imposed. • some judges became arbitrary & discriminatory in sentencing • To overcome this, legislation was passed in most states setting forth a prescribed, or a definite mandatory sentence, required on conviction of a particular offense. • Judges no longer had any control over the length of time to be served.
Types of Sentencing and SentencesDefinite Sentence • On conviction, the mandatory sentence was imposed, and the offender required to serve that period of time. • after the prescribed period, the offender was released back into society, but never prior to that time • The first major change came with the introduction of the conditional release, where a few states passed legislation permitting time off from the definite sentence for good behavior. • Good behavior principally consisted of complying with prison rules.
Types of Sentencing and SentencesDefinite Sentence • The definite sentence was severely criticized by reformists as being inflexible, and did not permit any aggravating or mitigating factors. • Since the procedure was inflexible, judges often dismissed a charge rather than impose a severe definite sentence when there were mitigating circumstances. • an offender was then permitted to go unpunished • Because of the inflexibility of the definite sentence, it has all but disappeared from the justice system.
Types of Sentencing and SentencesIndefinite Sentence • As the definite sentence lost favor, it was replaced by the indefinite sentence, in some states referred to as the indeterminate sentence or as the determinate sentence. • With appearance of the indefinite sentence, legislative bodies passed statutes prescribing maximum penalties that could be imposed on the convicted offender. • Under the indefinite sentencing procedure, imposition of the sentence was returned to the judge in most states. • a few states provided for the jury to impose the sentence • The theory was that it enabled the sentence to fit the offender and not the crime.
Types of Sentencing and SentencesPresentence Investigations • To assist in arriving at an equitable sentence many judges require a presentence investigation, usually conducted by a member of the probation department. • generally includes such matters as the offender’s family status, educational background, work experience, and prior criminal record and circumstances surrounding the crime • Even with the assistance of presentence report, the sentence still involves a difficult decision for the judge.
Types of Sentencing and SentencesJuries Imposing Sentence • Jury sentencing is a carryover from colonial days, when colonists had frequent unpleasant experiences with royal, as well as postindependence judges. • who were arbitrary & discriminatory in their sentences • Juries generally do not have access to any presentence investigative material, and when imposing sentence, it is often just a calculated guess on what is appropriate. • Often juries will be extremely harsh or very lenient in sentencing, because of deep emotional involvement with a crime committed in their community.
Types of Sentencing and SentencesJuries Imposing Sentence • Getting a jury to arrive at an equitable sentence can be more difficult than reaching a unanimous verdict. • Whether a sentence is imposed by a judge or a jury, it will stipulate the exact number of years to be served. • With the indefinite sentence, the law prescribes either a maximum amount of time that may be imposed or a minimum and a maximum • From this indefinite period of time, the judge or jury will decide upon a definite amount of time for the sentence.
Types of Sentencing and SentencesIndeterminate Sentencing • Passing of time & growing interest in rehabilitation, has made the indefinite sentence has even more so, becoming known as the indeterminate sentence. • because, after serving a portion of the sentence, the inmate may become eligible for parole, shortening time to be served • The true indeterminate sentence removes sentencing of a prescribed number of years from a judge or a jury. • length of the sentence is determined by a board or committee • The primary purpose of the indeterminate sentence is to permit the sentence to more nearly fit the offender and to assist in the rehabilitation process.
Types of Sentencing and SentencesWhen is an Offender Rehabilitated • Determining when an offender is rehabilitated and no longer a threat to society is almost impossible. • some never reach that point and serve the maximum time • However, each inmate is entitled eventually to have the length of his or her sentence determined by the board. • generally, the hearing will not be held until the inmate has served six months to one year of the maximum time • The board will consider the general attitude of the inmate toward society, law, and authority as expressed by the inmate in the appearance before the board.
Types of Sentencing and SentencesWhen is an Offender Rehabilitated • After a review of the matter, the board will endeavor to arrive at an equitable length of time to be served. • If the inmate demonstrates an inability to conform to prison regulations or makes no attempt at reform, the board has authority to reset the length of the sentence. • even requiring the inmate to serve the maximum time • It has been interpreted that an offender sentenced under the indeterminate sentence procedure is sentenced to the maximum prescribed. • and any time less than maximum is based on rehabilitation
Types of Sentencing and SentencesAdvantages/Disadvantages • The indeterminate sentence has been attacked by inmates on the allegation that it violates due process. • because of its uncertainty, and, as such, is cruel and unusual punishment • Courts have held that as long as a minimum and a maximum sentence prescribed by the legislature are not disproportionate to the offense committed, the sentence is not cruel and unusual. • and inmate reformation permits the maximum to be reduced
Types of Sentencing and SentencesAdvantages/Disadvantages • Proponents of true indeterminate sentencing procedure allege a board is in a better position than a judge to determine the sentence that should be imposed. • the board comes in contact with all convicted offenders who are imprisoned • whereas judges are in contact with only those convicted in their particular court • The board is able to view the inmates’ progress in an overview as one large unit and follow this progress during confinement as well as parole. • the board can weigh what sentence is likely equitable
Types of Sentencing and SentencesSuspended Sentence and Probation • Benefit of clergy was carried a step further in England during the thirteenth and fourteenth centuries, and may be called the forerunner of the suspended sentence. • Under certain circumstances, an accused was permitted to have a trial transferred from the king’s court to the ecclesiastical court. • the offender was able to avoid the death penalty, but still might be imprisoned for life • Philosophy of the right of benefit of clergy was brought to America by the colonists.
Types of Sentencing and SentencesSuspended Sentence and Probation • The suspended sentence is recognized in our system of justice today, in most instances coupled with probation. • in many jurisdictions, there cannot be a suspended sentence without probation being imposed for a prescribed period • in jurisdictions where suspended sentence is permitted without probation, the judge suspends imposing a sentence • The offender is returned to society, with no restrictions other than good behavior. • if the offender breaks the law again, the judge may impose a sentence on the original charge as well as the new charge if the offender is convicted
Types of Sentencing and SentencesSuspended Sentence and Probation • Probation permits the convicted offender to remain free from custody, but the offender is under supervision of a person who assists him/her in leading a law-abiding life. • usually a public officer known as a probation officer • The primary purpose of the suspended sentence and probation is to rehabilitate the offender. • When the convicted offender is granted a suspended sentence or probation, it is assumed that there is nothreat to society by the offender’s remaining free from custody.
This photo shows the “death chamber” at the Texas Department of Criminal Justice Huntsville Unit in Huntsville, Texas. The executioners room is behind the glass window, and the injection is administered via tubes that passthrough the opening in the wall. The Death Penalty “The toughest part of this job is sentencing. I’ve lost all kinds of sleep over sentences. I find it dreadful.” —Malcolm Muir, Judge, US District Court, 1982
those who oppose it doso on grounds it has noplace in a civilizedsociety • equal numbers contendthe death penalty is adeterrent and as suchshould be retained Source: Death Penalty Information Center reprinted in the Washington Post, March 8, 1995, p. A15. The Death Penalty • Heated arguments have taken place over the years concerning the merits of the death penalty.
The Death PenaltyCruel & Unusual Punishment - Furman • The question of whether or not the death penalty is cruel and unusual punishment in violation of the Eighth Amendment was placed before the US Supreme Court in the case of Furman v. Georgia. • The Court held the death penalty as such was not cruel and unusual punishment but that the indiscriminate manner in which it was applied made the death penalty cruel and unusual punishment in violation of the Eighth Amendment.
The Death PenaltyCruel & Unusual Punishment - Furman • The Court in Furman indicated that perhaps, if the death sentence was to be made mandatory for all of equal guilt, the sentence would not be discriminatory. • and thus not violate the Eighth Amendment • As a result, many legislatures passed statutes making death mandatory on conviction for certain crimes. • This mandatory sentence took from the jury or judge the right to determine the sentence to be imposed on conviction for crimes previously carrying the alternate sentence of life imprisonment or death.
The Death PenaltyCruel & Unusual Punishment - Woodson • However, the Court, in Woodson v. North Carolina,3 overruled as cruel and unusual punishment a North Carolina statute making the death penalty mandatory. • the Court held the statute did not allow any considerationto be given to the character and record of the offender • The Court stated, • “Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development.” • Consequently, state statutes making the death penalty mandatory had to be revised to conform with Woodson.
The Death PenaltyCruel & Unusual Punishment - Gregg • Statutes were then passed allowing consideration aggravating or mitigating circumstances. • A Georgia statute was upheld by the Supreme Court in Gregg v. Georgia, where the Court stated: • “…imposition of the death penalty for the Crime of murder has a long history of acceptance.” • “ …common-law rule imposed a mandatory death sentence on all convicted murderers.” • “…For nearly two centuries, this Court, repeatedly and often expressly, has recognized that capital punishment is not invalid per se.”
The Death PenaltyCruel & Unusual Punishment - Furman • Dissenting justices in the Furman case stated: • “Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution.” • “It implies there something inhuman and barbarous, something more than the mere extinguishment of life.” • “The cruelty against which the Constitution protects a convicted man is cruelty in the method of punishment, notthe necessary suffering involved in any method employed to extinguish life humanely.”
The Death PenaltyCruel & Unusual Punishment - Gregg • In Gregg decision, the Court made some interesting comments on the death penalty as a deterrent: • “When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they deserve, then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law.” • “Retribution is no longer the dominant objective of the criminal law, but neither is it a forbidden objective norone inconsistent with our respect for the dignity of men.”
The Death PenaltyCruel & Unusual Punishment - Gregg • In Gregg decision, the Court made some interesting comments on the death penalty as a deterrent: • Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. • Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view.
The Death PenaltyCruel & Unusual Punishment - Gregg • In Gregg decision, the Court made some interesting comments on the death penalty as a deterrent: • We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others the death penalty undoubtedly is a significant deterrent.
The Death PenaltyAlternate Sentencing • The mandatory death penalty on conviction of certain crimes made jurors aware that voting for a guilty verdict, was voting for execution of a human being. • Many jurors had reservations about the death penalty, and when it came time to vote, could not bring themselves to vote guilty, irrespective of the evidence. • this inability caused many trials to end with hung juries • To overcome this problem, many state legislatures enacted statutes setting forth alternate sentences of life imprisonment or death on conviction of certain crimes.
The Death PenaltyAlternate Sentencing - Circumstances • The statutes further provided the jury was to make the decision about which penalty was to be imposed. • a juror could still vote for a guilty verdict, but vote for life imprisonment after the conviction • In 2002, the Supreme Court held that determination about the existence of “aggravating factors” that make a convicted murder eligible for the death penalty must be made by the jury and not the judge. • During the trial or sentence determination hearing, the jury must consider both aggravating and mitigating circumstances, and weigh them against each other.
