CHAPTER

1. CHAPTER 9 • Sentencing

2. imprisonment fines probation death Traditional Sentencing Options

3. Goals of Sentencing

4. retribution incapacitation deterrence rehabilitation restoration Sentencing Goals of Sentencing

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.

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 on the increase 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. • There are two types of deterrence: • specific • general

8. hedonistic calculus - Jeremy Bentham’s belief that people weigh the perceived rewards of criminal behavior against the perceived punishments. Bentham believed that crime will be prevented when perceived punishment outweighs perceived reward. Deterrence

9. Specific Deterrence: • … a goal of criminal sentencing that seeks to prevent a particular offender from engaging in repeat criminality. • Incapacitation – During the time an offender is incapacitated, he is not committing new crimes against free society. • Capital Punishment – Renders offender incapable of committing more crimes.

10. General Deterrence: • … a goal of criminal sentencing that seeks to prevent others from committing crimes similar to the one for which a particular offender is being sentenced by making an example of the person sentenced. • Examples of general deterrence include public floggings and very long sentences.

11. Rehabilitation: • … the attempt to reform a criminal offender. • Reforming offenders means that criminal activity should be reduced. • Education, training, and counseling are some of the vehicles used. • The concept was developed in the 1930s as a result of the growth of psychology.

12. 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 person (victim). • The following are involved: • Counseling • Compensation for medical bills, lost wages, personal suffering

13. Sentencing Two Types: • indeterminate • determinate (fixed)

14. Indeterminate Sentencing

15. Indeterminate Sentencing: … A model of criminal punishment that encourages rehabilitation via the use of general and relatively unspecific sentences, such as a term of imprisonment “from one to ten years.”

16. 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. Indeterminate Sentencing

17. “Good Time” The offender can receive credit for good behavior and thereby reduce the amount of time he spends incarcerated. The behavior of the offender during incarceration is the main determining factor in release decisions. Indeterminate Sentencing

18. Bureau of Justice Statistics • Violent offenders serve only 51%of their sentences prior to release. • 49% of the sentence is served prior to release for all felonies. • Many early releases have been necessitated by prison overcrowding. 1999 Study

19. Structured Sentencing: … a model of criminal punishment that includes determinate and commission-created presumptive sentencing schemes, as well as voluntary/advisory sentencing guidelines.

20. Developed, in part, as a response to the disparity in sentencing of the indeterminate model. Structured Sentencing

21. proportionality equity social debt Structured Sentencing

22. Proportionality: … the severity of the sanction should be directly related to the seriousness of the crime committed.

23. Equity: … similar crimes should receive similar sentences, regardless of the characteristics of the offender.

24. Social Debt: … The offender’s criminal history should be taken into account during sentencing, i.e., the more crimes previously committed, the harsher the sentence should be.

25. Determinate Sentencing

26. 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.

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

28. 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.

29. Sentencing Guidelines First states to approve use of sentencing guidelines: • Minnesota (1980) • Pennsylvania (1982) • Washington (1983) • Florida (1983) • The federal government and 16 states now employ sentencing guidelines.

30. Most state sentencing guidelines allow for mitigating factors and/or aggravating factors. Sentencing Guidelines

31. Mitigating Factors: • … factors that may cause a judge to lower a sentence below that specified in guidelines. • Examples • no prior record • partial or full restitution already made • good community reputation • helped in apprehension of another felon

32. Mitigating Factors: • … factors that may cause a judge to lower a sentence below that specified in guidelines. • Examples • Victim was a voluntary participant or acted under provocation. • Offense was committed under duress, coercion, or threat which was not sufficient for defense but reduced culpability.

33. Aggravating Factors: • … circumstances relating to the commission of a crime which cause its gravity to be greater than that of the average instance of the given type of offense. • Examples • Defendant induced others to participate • Offense was especially heinous. • Defendant was armed.

34. Aggravating Factors: • … circumstances relating to the commission of a crime which cause its gravity to be greater than that of the average instance of the given type of offense. • Examples • Offense was committed for hire. • Victim was a law enforcement officer. • Defendant took advantage of a position of trust.

35. Mandatory Sentencing: • … structured sentencing that allows NO leeway in the sentence required for a crime. • For example: Three Strikes Laws • require mandatory sentence when convicted of third felony • require long prison terms

36. Truth in Sentencing: … a close correspondence between the sentence imposed upon an offender and the actual time served prior to release from prison.

37. Structured Sentencing Violent Crime Control and Law Enforcement Act of 1994 • provided money to entice states to pass “truth in sentencing” laws….money to be used for prison construction in those states that complied

38. Federal Sentencing Guidelines • established under Sentencing Reform Act of 1984 • 9 member commission • set minimum sentences for certain federal offenses • limited federal judges’ discretion • guidelines went into effect in November 1987 • challenged on legal grounds in Mistretta v. U.S. U.S. Sentencing Commission

39. U.S. Supreme Court held that Congress had acted appropriately in establishing the Sentencing Commission and that the guidelines could be applied in federal cases nationwide. Mistretta v. U.S. (1989)

40. Career Offender: • … legal status that requires a defendant to: • be at least 18 at time of offense • commit a crime of violence or to traffic in a controlled substance • have at least two prior felony convictions for crimes of violence or trafficking

41. Deal was convicted in a single judicial proceeding of 6 counts of carrying and using a firearm in a series of bank robberies He had no previous convictions He was sentenced to 105 years in prison as a career offender. Deal v. U.S. (1993)

42. Court rejected his appeal stating, “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)

43. Federal Level Of all federal cases, 90% are the result of guilty pleas, of which the vast majority are the result of plea negotiations. Plea Bargaining

44. Mitigating/ Aggravating Factors

45. Three Types Long form detailed written report on the defendant’s personal and criminal history Short form summarizes the type of information most likely to be useful in the sentencing decision Verbal report made by the investigating officer based on field notes Presentence Investigation Report

46. Presentence Investigation Report Ten Major Informational Sections • Personal information and identifying data • Chronology of the current offense and circumstances surrounding it • Record of previous convictions • Home life and family data • Educational background

47. Presentence Investigation Report Ten Major Informational Sections • health history • military service • religious preference • financial condition • sentencing recommendation

48. Federal law mandates a presentence report in federal court. Presentence Investigation Report

49. Felony Sentencing in Federal and State Courts

50. Court-ordered Prison Commitments, 1968-1998