Schmalleger_CJ_Brief_lecture_ch09_accessiblePPT-Tagged.pdf

Criminal Justice: A Brief Introduction

Thirteenth Edition

Chapter 9Sentencing

Introduction

• Sentencing– The imposition of a criminal sanction on a

person convicted of a crime– Follows what is intended to be an impartial

judicial proceeding to ascertain criminal responsibility

• Most sentencing decisions are made by judges

• Juries may be involved in some cases, especially where a death sentence is possible

The Philosophy and Goals of Criminal Sentencing

• Sentencing philosophies are intertwined with issues of religion, morals, values, and emotions

• Modern sentencing practices are influenced by five goals

• Each goal of sentencing represents a quasi-independent sentencing philosophy

Table 9.1 Sentencing Goals and Purposes

Sentencing Goal Purpose

Retribution A just deserts perspective that emphasizes taking revenge on a criminal perpetrator or group of offenders

Incapacitation The use of imprisonment or other means to reduce the likelihood that a particular offender will commit more crime

Deterrence A sentencing rationale that seeks to inhibit criminal behavior through punishment or the fear of punishment

• General deterrence Seeks to prevent future crimes like the one for which the sentence is being imposed

• Specific deterrence Seeks to prevent a particular offender from engaging in repeat criminality

Rehabilitation The attempt to reform a criminal offender

Restoration A goal of sentencing that seeks to make the victim “whole again”

Retribution

• The act of taking revenge on a criminal perpetrator

• The earliest-known rationale for punishment

• Corresponds to the model of sentencing called “just deserts”

– Just deserts holds that criminal offenders deserve the punishment they receive

• The primary sentencing tool of the just deserts model is imprisonment

Incapacitation

• The use of imprisonment or other means to reduce the likelihood that an offender will commit future offenses

• Seeks to protect innocent members of society

• Separates offenders from the community to reduce opportunities for further criminality

• The “lock ‘em up” approach

Deterrence (1 of 2)

• Using the example or threat of punishment to convince people that criminal activity is not worthwhile

• Overall goal is crime prevention

• General deterrence seeks to influence the future behavior of people who may be tempted to turn to crime by making an example of the person sentenced

• Specific deterrence seeks to reduce the likelihood of recidivism by convicted offenders

Deterrence (2 of 2)

• One of the more rational goals of sentencing– Easily articulated– Can objectively investigate the amount of

punishment needed to deter

• Deterrence is compatible with the goal of incapacitation

• Retribution is oriented toward the past; deterrence is a strategy for the future and aims to prevent new crimes

Rehabilitation

• Rehabilitation involves the attempt to reform a criminal offender

• Seeks to bring about fundamental changes in offenders and their behavior

• Fell victim in the 1970s to the nothing-works doctrine

Restoration

• Restoration attempts to make the victim and community “whole” again

• Restorative justice– Builds on restitution and community

participation in an attempt to make amends to the victim

– Community-focused– Primary goal is improving the quality of life for

all members of the community

Table 9.2 Differences between Retributive and Restorative JusticeRetributive Justice Restorative Justice

Crime is an act against the state, a violation of a law, an abstract idea.

Crime is an act against another person or the community.

The criminal justice system controls crime. Offender accountability is defined as taking punishment.

Crime control lies primarily with the community. Offender accountability is defined as assuming responsibility and taking action to repair harm.

Crime is an individual act with individual responsibility. Crime has both individual and social dimensions of responsibility.

Victims are peripheral to the process of resolving a crime. Victims are central to the process of resolving a crime.

The offender is defined by deficits. The offender is defined by the capacity to make reparation.

The emphasis is on adversarial relationships. The emphasis is on dialogue and negotiation.

Pain is imposed to punish, deter, and prevent. Restitution is a means of restoring both parties; the goal is reconciliation.

The community is on the sidelines, represented abstractly by the state.

The community is the facilitator in the restorative process.

The response is focused on the offender’s past behavior. The response is focused on harmful consequences of the offender’s behavior; the emphasis is on the future and on reparation.

There is dependence on proxy professionals. There is direct involvement by both the offender and the victim.

Source: From Gordon Bazemore and Mark S. Umbreit, Balanced and Restorative Justice: Program Summary (Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, 1994), p. 7.

Indeterminate Sentencing (1 of 2)

• Encourages rehabilitation through the use of general and relatively unspecific sentences

• Characterized by vast judicial choice—gives judges wide discretion in choosing among sentencing options

Explanation of Indeterminate Sentencing

• Relies on judges’ discretion to choose among types of sanctions and to set upper and lower limits on sentences

• When offender is convicted on multiple charges, judicial discretion extends to imposition of current or consecutive sentences

– Consecutive sentences—2+ sentences served one after the other

– Concurrent sentences—2+ sentences served simultaneously

Indeterminate Sentencing (2 of 2)

• The indeterminate model was created to take into consideration differences in the degree of guilt

• The inmate’s behavior while incarcerated is the primary determinant of the amount of time served

• A few states use a partially indeterminate sentencing model

– Judges can only specific maximum amount of time to be served

– Minimum not under control of sentencing authority

Critiques of Indeterminate Sentencing (1 of 2)

• Allows judges’ personalities and personal philosophies to produce too wide a range of sentencing practices

• Offenders may be sentenced on the basis of personal and social characteristics, not culpability

• Defense may request delays to manipulate the selection of the judge

• Tends to produce dishonesty in sentencing

Critiques of Indeterminate Sentencing (2 of 2)

• Gain Time– The amount of time deducted from prison time

on a given sentence as a consequence of participation in special projects or programs

• Good Time– The amount of time deducted from prison time

on a given sentence as a consequence of good behavior

Structured Sentencing (1 of 2)

• Structured sentencing addresses three fundamental sentencing principles

– Proportionality—sanction severity should be directly related to seriousness of crime

– Equity—similar crimes should be punished similarly

– Social debt—offender’s criminal history should be considered in sentencing

Structured Sentencing (2 of 2)

• In the 1970s, states began to address these concerns by developing a structured sentencing model

• Structured sentencing includes– Determinate sentencing– Presumptive sentencing– Voluntary/advisory sentencing guidelines

Determinate Sentencing

• A form of structured sentencing that requires that a convicted offender be sentenced to a fixed term that may be reduced by good time or gain time

• Eliminates the use of traditional parole

• Specifies an anticipated release date

Voluntary/Advisory Sentencing Guidelines

• A form of structured sentencing that includes recommended sentencing policies

– Not required by law– Usually based on past sentencing practices– Serve as guides to judges

• Guidelines may build on either determinate or indeterminate sentencing structures

Presumptive Sentencing (1 of 2)

• A form of structured sentencing

• Guidelines for presumptive sentencing differ from other structured sentencing models

– Guidelines developed by a sentencing commission rather than state legislature

– Explicit and highly structured– Not voluntary/advisory

Presumptive Sentencing (2 of 2)

• Guidelines allow judges to consider aggravating or mitigating circumstances relating to the crime

• Aggravating circumstances—call for a tougher sentence, may include especially heinous behavior

• Mitigating circumstances—call for a lesser sentence, reduce but do not eliminate criminal responsibility

Federal Sentencing Guidelines

• Comprehensive Crime Control Act (1984)—federal government adopted presumptive sentencing for nearly all federal offenders

• Truth-in-sentencing—close correspondence between the imposed sentence and the time actually served in prison

• Nearly eliminated good-time credits, began phasing out federal parole

• Provided funds for states that adopt truth-in-sentencing laws

Federal Guideline Provisions (1 of 2)

• Guidelines specified a sentencing range from which judges had to choose

• Departures expected only in the presence of aggravating or mitigating circumstances

• Departures may become the basis for appellate review

• Judges deviating from the guidelines originally required to provide written reasons

Federal Guideline Provisions (2 of 2)

• Guidelines built around a table– 43 rows—each corresponding to one offense

level▪ Penalties overlap levels to discourage

unnecessary litigation– 6 rows corresponding to criminal history

categories▪ Determined on point basis▪ Career offenders may be placed in the

highest criminal history category

Plea Bargaining under the Guidelines

• About 90% of federal sentences result from guilty pleas

• Plea bargaining agreement must meet specific conditions

– Must be fully disclosed in the record of the court– Must detail the actual conduct of the offense

• Melendez v. U.S. (1996)—federal judges may depart from the guidelines but cannot accept plea bargains that would result in a sentence lower than the minimum required by law for a particular offense

The Legal Environment of Structured Sentencing

• Apprendi v. New Jersey (2000)– Requiring sentencing judges to consider facts

not proven to a jury violates the Constitution

• U.S. v. Booker and U.S. v. Fanfan (2006)– Made federal sentencing guidelines merely

advisory– Gave federal judges considerable discretion in

imposing punishments– Judges must take guidelines into consideration

but do not have to follow them

The Legal Environment of Structured Sentencing-Cases

• Harris v. U.S. (2002)

• U.S. v. O’Brien (2010)

• Blakely v. Washington (2004)

• Cunningham v. California (2007)

• Rita v. U.S. (2007)

• Gall v. U.S. (2007)

• Alleyne v. U.S. (2013)

Three-Strikes Laws

• First law appeared in California in 1994

• About half the states have passed three-strikes legislation

• Effectiveness questionable

• A 2012 review found that 16 states had modified laws in response to difficult economic conditions

• Supreme Court has upheld three-strikes convictions in the face of 8th Amendment claims of cruel and unusual punishment

Mandatory Sentencing

• A structured sentencing scheme that allows no leeway in the nature of the sentence imposed

• Does not allow for judicial discretion

• Diversion– The official suspension of criminal or juvenile

proceedings against an alleged offender at any point after a recorded justice system intake but before the entering of a judgment

Sentencing and Today’s Prison Crisis

• Get-tough-on-crime policies have dramatically increased the use of incarceration

• Crime rates decreasing but incarceration rates increasing

• Puts huge financial burdens on state and federal governments

Figure 9.2 Incarceration Rates vs. Crime Rates in the United States, 1978–2017

Innovations in Sentencing

• Some judges are using discretionary sentencing to impose truly unique punishments

• Some judges have used shaming strategies to deter wrongdoers

• Considerable support in criminal justice for shaming as a crime-reduction strategy

Questions about Alternative Sanctions (1 of 2)

• Alternative sanctions

– The use of court-ordered community service, home detention, day reporting, drug treatment, psychological counseling, victim-offender programming, or intensive supervision in lieu of other more traditional sanctions

Questions about Alternative Sanctions (2 of 2)

• Justice reinvestment

– Prioritizes the use of alternatives to incarceration for eligible convicted offenders

– Reinvests savings into effective crime prevention programs

The Presentence Investigation (1 of 3)

• Prior to imposing sentence, judge may ask for information on convicted defendant’s background

• Key driver behind many sentencing decisions is offender risk and needs assessment (RNA)

– Factors that increase likelihood of reoffending suggest sentencing offender to incarceration

– Factors that increase chances of rehabilitation may suggest probation or reduced prison term

The Presentence Investigation (2 of 3)

• Presentence investigation (P S I) involves the examination of a convicted offender’s background prior to sentencing

• Usually conducted by probation or parole officers

• Three main types– Detailed written report on the defendant’s

personal and criminal history– Abbreviated written report– Verbal report to the court

The Presentence Investigation (3 of 3)

• Sources of information– F B I’s National Crime Information Center– Individual jurisdictions’ records– The defendant (information should be

corroborated with other sources)

• P S I also includes investigating officer’s recommendations

• Jurisdictions vary in use of P S I information

Victims’ Rights (1 of 3)

• Grassroots movement to increase victims’ rights began in the early 1970s

• Sentencing process now frequently includes consideration of victims’ needs

• Victims’ assistance programs offer services and help victims secure rights

• No federal victims’ rights amendment, but over 30 states have passed victims’ rights amendments

Victims’ Rights (2 of 3)

• Victim and Witness Protection Act (1982)

• Victims of Crime Act (1984)

• Violent Crime Control and Law Enforcement Act (1994)

• Violence against Women Act (1994)

Victims’ Rights (3 of 3)

• The philosophical basis of today’s victims’ movement found in the restorative justice model

• U S A PATRIOT Act amended 1984 Victims of Crime Act to provide for victims of terrorism

• Crime Victims’ Rights Act (2004) gives statutory rights to victims of federal crimes

Victim-Impact Statements

• A statement made by the victim or survivor to sentencing authorities before sentencing

– May be a written document included in the PSI report

– Victim may testify directly at sentencing– May also submit victim-impact video

• One study of the efficacy of victim-impact statements found that sentencing decisions are rarely affected by them

Sentencing Rationales

• Sentencing is meant to protect the public while serving the various goals of sentencing

• Sentencing philosophies affect sanctions that are imposed

• One commonality is the four traditional sanctions that dominate the thinking of most legislators and judges

Figure 9.3 Four Traditional Sentencing Options

Sentencing Practices

• Less than half of all convicted felons receive active prison terms

• However, the number of defendants receiving active prison time has increased dramatically

Figure 9.4 The Sentencing of Convicted Felons in State Courts, by Type of Sentence

Figure 9.5 Court-Ordered Prison Commitments, 1960–2016

Fines (1 of 2)

• One of the oldest forms of punishment– Problems include built-in inequities and

widespread failure to collect fines– Inequities occur when offenders with different

financial resources are fined similar amounts

• Renewed interest in fines as a sentencing alternative

– Reduce prison crowding– Contribute to state/local coffers– Lower tax burden

Fines (2 of 2)

• Often imposed for relatively minor law violations

• Most likely to be imposed where the offender has both a clean record and the ability to pay

• Judges often reluctant to impose fines– Fines allow more affluent offenders to “buy their

way out”– Poor offenders cannot pay fines

Death: The Ultimate Sanction

• Capital punishment is the most extreme sentencing option

• Federal government and 31 states use capital punishment

• Federal law recognizes 60 capital offenses

• States are also expanding the types of crimes for which a death sentence can be imposed

• Methods of imposing death vary by state– The majority of states use lethal injection– Electrocution is the second most-common

method

Habeas Corpus Review (1 of 2)

• All death sentences automatically reviewed by appellate courts

• Leads to long delays before sentences carried out– Average of 15 years, 8 months between

imposition of death sentence and execution– Contravenes idea that punishment should be

swift and certain

Habeas Corpus Review (2 of 2)

• Writ of habeas corpus– Directs the person detaining a prisoner to bring

him or her before a judicial officer to determine the lawfulness of the imprisonment

– Basis for many federal appeals by prisoners on state death rows

• Federal reforms are limiting opportunities for federal appeals by death-row inmates by setting deadlines for state inmates filing federal habeas corpus appeals

Opposition to Capital Punishment

• Six main rationales for abolishing capital punishment

– Innocent people have been executed– Lack of proven deterrence– Arbitrariness– Discrimination– Expense– Human life is sacred

The Death Penalty and Innocent People (1 of 3)

• Wrongful conviction is a very serious miscarriage of justice

– Does not always mean exonerated person is innocent of any crime

• D P I C claims that between 1973 and mid-2018, 162 people in 28 states were freed from death row after being found innocent of capital crimes of which they had been convicted

• D N A testing can play a key role in identifying wrongful convictions

The Death Penalty and Innocent People (2 of 3)

• A 2000 study examined 4,578 death-penalty cases in state and federal courts from 1973 to 1995

– Found that appellate courts overturned the conviction or reduced the sentence in 68% of the cases examined

– In 82% of successful appeals, defendants were found to be deserving of a lesser sentence

– Convictions overturned in 7% of appeals

The Death Penalty and Innocent People (3 of 3)

• Innocence Protection Act (2004)– Provides federal funds to eliminate backlog of

unanalyzed DNA samples– Facilitates access to post-conviction DNA testing

• Not all claims of innocence are supported by DNA tests or other forms of inquiry

• Supreme Court has ruled that there is no fundamental constitutional right to access DNA-testable evidence long after a conviction is final

Figure 9.8 Ten Factors That Can Lead to a Wrongful Conviction

Death Penalty and Deterrence

• Few still argue for death penalty based on its deterrent effect

• Research to date is not informative about whether capital punishment deters, increases, or has no effect on homicide rates

Death Penalty and Discrimination

• The claim that death penalty is discriminatory is hard to investigate

– Claims of disproportionality must measure both frequency and seriousness of capital crimes between and within racial groups

• Studies do not agree on whether there is discrimination (racial, socioeconomic, etc.) in the imposition of the death penalty

Justifications for Capital Punishment (1 of 2)

• Justifications for the death penalty are collectively referred as the retentionist position

• Three retentionist arguments– Just deserts– Revenge– Protection

Justifications for Capital Punishment (2 of 2)

• Just deserts – Some people deserve to die for what they have

done

• Revenge– Survivors, victims, and the state are entitled to

closure– Psychological and social wounds from the crime

cannot heal until the offender has been executed

• Protection– Executed offenders cannot commit further

crimes– Least emotional but also the weakest argument

The Courts and the Death Penalty

• The Supreme Court has served as a sounding board for issues surrounding the death penalty

• The majority of justices today seem largely convinced of the fundamental constitutionality of a sentence of death

– What is open to debate is the constitutionality of methods for execution

Table 9.5 U.S. Supreme Court Cases Relating to the Death Penalty (1 of 3)

Year U.S. Supreme Court Case Ruling

2016 Hurst v. Florida Florida’s death penalty sentencing scheme was found to be unconstitutional under the Sixth Amendment because it allowed a judge to find and weigh aggravating circumstances independently of the jury.

2014 Hall v. Florida States cannot rely solely on an IQ score of above 70 to bar an inmate from claiming mental disability in the face of execution. Doing so creates an “unacceptable risk” that inmates with intellectual disabilities might be executed in violation of the Constitution.

2008 Kennedy v. Louisiana The Eighth Amendment bars states from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.

2008 Baze v. Rees The capital punishment protocol of lethal injection involving a three-drug “cocktail” used by Kentucky does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.

Table 9.5 U.S. Supreme Court Cases Relating to the Death Penalty (2 of 3)

Year U.S. Supreme Court Case Ruling

2005 Deck v. Missouri The Constitution forbids the use of visible shackles during a capital trial’s penalty phase, as it does during the guilt phase, unless that use is “justified by an essential state interest”—such as courtroom security—specific to the defendant on trial.

2005 Roper v. Simmons The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

2004 Schriro v. Summerlin The rule established in Apprendi and Ring cannot be applied retroactively to sentences already imposed because it is merely a new procedural rule and not a substantive change.

2002 Atkins v. Virginia Executing mentally retarded people violates the Constitution’s ban on cruel and unusual punishments.

2002 Ring v. Arizona Juries—not judges—must decide the facts, including those relating to aggravating circumstances, that may lead to a death sentence.

1977 Coker v. Georgia A Georgia law imposing the death penalty for the rape of an adult woman was struck down. The Court concluded that capital punishment under such circumstances is “grosslydisproportionate” to the crime.

Table 9.5 U.S. Supreme Court Cases Relating to the Death Penalty (3 of 3)

Year U.S. Supreme Court Case Ruling

1976 Gregg v. Georgia A new two-stage (bifurcated) procedural requirement of Georgia’s revised capital punishment statute was upheld. The law requires guilt or innocence to be determined in the first stage of a bifurcated trial. Upon a guilty verdict, a presentence hearing is held where the judge or jury hears additional aggravating and mitigating evidence. At least one of ten specified aggravating circumstances must be found to exist beyond a reasonable doubt before a death sentence can be imposed.

1976 Woodson v. North Carolina A state law requiring mandatory application of the death penalty for all first-degree murders was found to be unconstitutional.

1972 Furman v. Georgia The Court recognized “evolving standards of decency” in invalidating Georgia’s death penalty statute because it allowed a jury unguided discretion in the imposition of a capital sentence. The Georgia statute, which permitted a jury to decide issues of guilt or innocence while simultaneously weighing sentencing options, was found to allow for an arbitrary and capricious application of the death penalty.

The Future of the Death Penalty

• Support for the death penalty varies greatly from state to state

• A 2017 national poll of registered voters found 55% in favor of capital punishment for murder

• Support for the death penalty has consistently declined since 1994

• Support for death penalty alternatives has increased (life with or without the possibility of parole)

Criminal Justice: A Brief Introduction
Introduction
The Philosophy and Goals of Criminal Sentencing
Table 9.1 Sentencing Goals and Purposes
Retribution
Incapacitation
Deterrence (1 of 2)
Deterrence (2 of 2)
Rehabilitation
Restoration
Slide 11
Indeterminate Sentencing (1 of 2)
Explanation of Indeterminate Sentencing
Indeterminate Sentencing (2 of 2)
Critiques of Indeterminate Sentencing (1 of 2)
Critiques of Indeterminate Sentencing (2 of 2)
Structured Sentencing (1 of 2)
Structured Sentencing (2 of 2)
Determinate Sentencing
Voluntary/Advisory Sentencing Guidelines
Presumptive Sentencing (1 of 2)
Presumptive Sentencing (2 of 2)
Federal Sentencing Guidelines
Federal Guideline Provisions (1 of 2)
Federal Guideline Provisions (2 of 2)
Plea Bargaining under the Guidelines
The Legal Environment of Structured Sentencing
The Legal Environment of Structured Sentencing-Cases
Three-Strikes Laws
Mandatory Sentencing
Sentencing and Today’s Prison Crisis
Slide 32
Innovations in Sentencing
Questions about Alternative Sanctions (1 of 2)
Questions about Alternative Sanctions (2 of 2)
The Presentence Investigation (1 of 3)
The Presentence Investigation (2 of 3)
The Presentence Investigation (3 of 3)
Victims’ Rights (1 of 3)
Victims’ Rights (2 of 3)
Victims’ Rights (3 of 3)
Victim-Impact Statements
Sentencing Rationales
Figure 9.3 Four Traditional Sentencing Options
Sentencing Practices
Slide 46
Figure 9.5 Court-Ordered Prison Commitments, 1960–2016
Fines (1 of 2)
Fines (2 of 2)
Death: The Ultimate Sanction
Habeas Corpus Review (1 of 2)
Habeas Corpus Review (2 of 2)
Opposition to Capital Punishment
The Death Penalty and Innocent People (1 of 3)
The Death Penalty and Innocent People (2 of 3)
The Death Penalty and Innocent People (3 of 3)
Figure 9.8 Ten Factors That Can Lead to a Wrongful Conviction
Death Penalty and Deterrence
Death Penalty and Discrimination
Justifications for Capital Punishment (1 of 2)
Justifications for Capital Punishment (2 of 2)
The Courts and the Death Penalty
Slide 63
Slide 64
Slide 65
The Future of the Death Penalty
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