Sentencing
A risk management strategy
Judges are limited by the U.S constitutions 8th amendment prohibition of cruel/ unusual punishments and statutory provisions.
Guided by:
Prevailing philosophical rationales
Organizational considerations
Presentence investigation reports
Their own personal characteristics
Statutory provisions
State/ federal legislative bodies enact PENAL CODES that specify appropriate punishments for each statutory offense, or class of offense.
5 punishments:
Fines
Probation
Intermediate punishments
Imprisonment
Death
Judges can combine punishments, or suspend a punishment if the offender does one of the following:
-Stays out of trouble
-Makes restitution
-Seeks medical treatment
Judges in states that have indeterminate sentencing statutes generally have more sentencing discretion than judges in states with determinate sentencing laws.
Aggravating circumstances
Elements that could result in a harsher sentence
Mitigating circumstances
Elements that could result in a lesser sentence
Restitution
Money paid/ services provided by a convicted offender to victims, their survivors, or the community to make up for the injury inflicted. (most offenders dont have the financial needs to provide)
Indeterminate sentencing
sentence with a fixed minimum and maximum term of incarceration, rather than a set period.
1 to 10
Unspecified sentence; relies on judges discretion; encourages rehab
Determinate sentencing
a sentence with a fixed period of incarceration, which eliminates the decision-making responsibility of parole boards.
Good time possible.
Well defined hierarchy of penalties.
Criticisms:
-prisons became harsher, giving up on rehab
-abolition of good time/ parole makes discipline and control more more difficult, inmates have little incentive to behave.
-some judges ignore guidelines they see as too harsh; some judges ignore guidelines they see as too lenient.
-shifts sentencing discretion from judges to legislatures/ prosecutors
-prosecutors still have discretion in plea negotiations, but operate in secret, whereas judge exercise discretion in the open
-in jurisdictions that retain good time, determinate sentencing shifts sentencing discretion form legislators/ prosecutors to correctional personnel.
-impossible to define in advance all factors that ought to be considered in determining a criminal sentence
Proportionality
the severity of the sanction should be directly related to the seriousness of the crime committed.
Mandatory sentence
fixed by statute.
Specifies a number of years of imprisonment.
Doesnt allow release on parole, but allows good time
Flat-time sentencing
sentencing in which judges may choose between probation and imprisonment but have little discretion in setting length of prison sentence.
Once an offender is in prison, there is no possibility of reduction in the length of the sentence.
Good time sentencing
number of days deducted from a sentence by prison authorities for good behavior or other causes.
Presumptive sentencing
compromise between legislatively mandated determinate and indeterminate sentences.
Allows a judge to retain some sentencing discretion, subject to appellate review.
The legislature determines a sentence range for each crime.
Indeterminate truth in sentencing
Sentence imposed by the judge and the actual time served in prison agree.
Laws require 85% of sentence served.
Incapacitation
The use of imprisonment/ other means to reduce the likelihood that an offender will be capable of committing future offenses. Goal is the protection of innocent members of society.
Done through exile, banishment, or death.
Deterrence
Seeks to inhibit criminal behavior by fear of punishment.
A goal of criminal sentencing which seeks to prevent others from committing crimes similar to the one for which an offender is being sentenced.
Social science is unable to measure its affect.
Specific deterrence
prevent a particular offender from engaging in repeat criminality
General deterrence
prevent others from committing similar crimes for which a particular offender is being sentenced.
Rehabilitation
Criminals can be "cured" of their problems and criminality and returned to society.
Restoration
Attempts to make the victim "whole again," to address damage to the victim and community.
Places emphasis on victims rights and needs and the successful reintegration of offenders into the community. (community service sometimes used)
Retribution
Now increasingly popular with the public as a rationale for punishment.
Revenge: punishment rationale expressed by the biblical phrase "An eye for an eye.."
Just deserts: Punishment rationale based on the idea that offenders should be punished automatically, simply bc they have committed a crime (punishment should fit the crime/ they deserve it)
Retributivists
Believe that retribution reduces the incidence of vigilantism.
If offenders are not punished for their crimes, other people will lose respect for the law.
Retribution is the only rationale for criminal punishment that addresses the past, paying back offenders for their crimes.
Payne V. Tennessee 1991
Judge and juries may consider victim-impact statements in their sentencing decisions.
Victim- impact statements
Descriptions of the harm and suffering that a crime has caused victims and their survivors.
Organizational consideration
Plea bargains, prison overcrowding, and costs of the sentence versus the benefits derived from it.
Pre-sentence investigation reports
Reports, often called PSI's or PSIR's that are used in the federal system and the majority of states to help judges determine the appropriate sentence.
Used in classifying probationers, parolees and prisoners according to their treatment needs/ security risks.
Sometimes includes sentencing recommendations.
Prepared by probation officers, conducts thorough background check on defendant.
Allocution
The procedure at a sentencing hearing in which the convicted defendant has the right to address the court before the sentence is imposed.
After the PSI has been submitted, a sentencing hearing is held and the defendant is allowed a allocution.
During allocution, a defendant is I.D'd as the person found guilty and has a right to deny/ explain info contained in the PSI if his/her sentence is based on it.
Pardon
a "forgiveness" for the crime committed that stops further criminal proceedings. (a plea)
Claims made at allocution
He/she is not the person who was found guilty at trial.
A pardon has been granted for the crime in question.
He/she has gone insane since the verdict.
She is pregnant. The sentence must be deferred/ adjusted.
Characteristics of judges
Characteristics that affect sentencing decisions:
-Socioeconomic backgrounds
-Law school attended
-Prior experiences in/out of court
-Number of defenders they defended earlier in career
-Biases concerning diff. crimes
-Emotional reactions/ prejudices toward defendant
-Personalities
-Marital/ sexual relations
Appeals
Defendants can appeal on legal/ constitutional grounds.
An offender must file a notice of intent to appeal within 30 to 90 days after conviction.
Defendant must file an affidavit of errors specifying the alleged defects in the trial/ pretrial proceedings.
NEARLY 80% OF STATE TRIAL COURT DECISIONS ARE AFFIRMED ON APPEAL.
Death penalty history
Earliest recorded execution was in 1608 in the colony of Virginia, there has been 20,000 executions since.
Only 3% of executions were women, 87% of those were before 1866.
About 2% of those executed since 1608 have been juveniles.
B/w 1990 and 2005, the U.S was one of only 7 countries ho executed those under 18 at the time of the crime (other countries- Dem. Repub. of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen)
Death penalty
Death is the ultimate sanction.
Lethal injection is the primary method of execution used in all executing states, as well as the U.S. gov't and U.S. military.
Furman V. Georgia
Ruled that the way the death penalty was administered was unconstitutional, not capital punishment itself.
Voided the death penalty laws of some 35 states, and the death sentences of more than 600 men/women were commuted to imprisonment.
1974- 30 states enacted new death penalty statutes.
Death penalty statutes
1. Mandatory statutes that require capital punishment for certain crimes. (rejected in 1976)
2. Guided- discretion statutes that provided specific guidelines for judges and juries.
34 jurisdictions have death penalty statutes.
Gregg V. Georgia 1976
Court upheld the constitutionality of guided- discretion statutes.
Since 1977- may 2013, 1,331 people had been executed in 34 states and by the fed. gov't, including 497 in Texas.
Court generally limited the penalty to those convicted of aggravated murder.
The court assumed, without any evidence, that the new guided discretion statutes would eliminate the arbitrariness/ discrimination that the court found objectionable in its Furman decision.
Court= optimistic about procedural reforms:
-Bifurcated trials
-Guidelines for judges/ juries
-Automatic appellate review
Death penalty cont.
1986- Barred executing those who have developed mental illnesses while on death row
1987- State death penalty statutes are constitutional even when statistics indicate that they have been applied in racially biased ways.
Court ruled that racial discrimination must be shown in individ. cases.
2002- Court banned execution of intellectually- challenged offenders
2005- Court limited capital punishment to offenders 18+
1944 federal crime bill
Expanded the number of fed. crimes punishable by death to 50
Includes:
-Treason/ espionage
-Large quantity drug trafficking
-Attempting/authorizing/advising the killing of any public officer, juror, or witness in a case involving a continuing criminal enterprise
As of 2009, the number of fed. crimes punishable by death decreased to 41.
Bifurcated trial
2 stage trial consisting of a guilt phase and a separate penalty phase.
If defendant is found guilty in the guilty phase, then @ the penalty phase, the judge/ jury must determine whether the sentence will be death/ life in prison.
Some states require selection of 2 juries in capital trials (one for each phase)
Aggravating factors
In death sentencing, circumstances that make a crime worse than usual.
Mitigating factors
In death sentencing, circumstances that make a crime less sever than usual.
Automatic appellate review
31 of 32 states do this.
Review of all death sentences, regardless of defendants wishes.
Proportionality review
Review in which the appellate court compares the sentence in the case it is reviewing with penalties imposed in similar cases in the state.
Object is to reduce disparity in death penalty cases.
Collateral review
Dual system for capital defendants.
They may appeal their convictions/ sentences through state and fed. appellate systems.
Writ of Habeas Corpus
Death row inmates whose appeals have been denied may file one of these to have the supreme court review their case on constitutional grounds.
Appellate review
Congress/ supreme court have restricted habeas petitions in order to reduce long delays in executions.
Some argue that appellate reviews are unnecessarily delaying tactics (at least those beyond the automatic review)
Commutations
Reduction in sentences, granted by a states governor.