chapter 9 sentencing

CRIMINAL JUSTICEA Brief Introduction, 6/Eby Frank Schmalleger

©2006 Pearson Education, Inc.Pearson Prentice HallUpper Saddle River, NJ 07458

Chapter 9Sentencing



Learning Objectives

• Describe the five goals of contemporary criminal sentencing

• Illustrate the difference between indeterminate and structured sentencing

• Describe the different types of structured sentencing models in use today

• Define mandatory sentencing

• Describe truth in sentencing



Learning Objectives• Explain the importance of federal sentencing

guidelines

• Describe the nature and importance of the presentence investigation report

• Describe the history of victims’ rights and services

• List the four traditional sentencing options

• Outline the arguments for and against the death penalty



Sentencing

• Sentencing refers to:

• Society looks to sentencing to achieve a diversity of goals.

The imposition of a criminal sanction by a judicial authority.



The Philosophy and Goals of Criminal Sentencing

• Retribution

• Incapacitation

• Deterrence

• Rehabilitation

• Restoration



Retribution• Retribution refers to:

• Just deserts refers to:

The act of taking revenge on a criminal perpetrator.

A model of criminal sentencing that holds that criminal offenders deserve the punishment they receive at the hands of the law and that punishment should be appropriate to the type and severity of the crime committed.



Incapacitation

• Incapacitation refers to:

• It requires only restraint—and not punishment.

• Sometimes called the lock ‘em up approach.

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



Deterrence

• Deterrence refers to:

– Specific deterrence:• The sentence is an attempt to prevent a particular

offender from engaging in repeat criminality.

– General deterrence:• The sentence 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.

A goal of criminal sentencing that seeks to inhibit criminal behavior through the fear of punishment.



Rehabilitation

• Rehabilitation refers to:

• 1970s saw a “nothing works” doctrine.

• Today, there is emerging evidence of the effectiveness of treatment programs.

The attempt to reform a criminal offender. Also, the state of mind in which a reformed offender is said to be.



Restoration• Restoration refers to:

• Restorative justice refers to:

A goal of criminal sentencing that attempts to make the victim “whole again.”

A sentencing model that builds on restitution and community participation in an attempt to make the victim “whole again.”



Differences between Retributive and Restorative Justice

Retributive Justice Restorative Justice

• Crime is an act against the state

• Crime is an act against the individual or community

• The criminal justice system controls crime

• Crime control lies primarily with the community

• Offender accountability is defined by punishment

• Offender accountability is defined by responsibility

• Victims are peripheral • Victims are central



Indeterminate Sentencing• Indeterminate sentencing refers to:

• Factors considered:– Motive– Intended harm– Victim contribution– Damage inflicted– Offender mental state– Likelihood of successful rehabilitation– Offender cooperation

A model of criminal punishment that encourages rehabilitation through the use of general and relatively unspecific sentences.



Critiques of Indeterminate Sentencing

• Contributes to inequality in sentencing

• Allows judge’s personality in sentencing

• Produces dishonesty in sentencing

– An amount of time is deducted from time to be served in prison on a given sentence.

• Gain time vs. good time



Structured Sentencing

• Proportionality refers to:

• Equity refers to:

A sentencing principle that holds that the severity of sanctions should bear a direct relationship to the seriousness of the crime committed.

A sentencing principle, based on concerns with social equality, that holds that similar crimes should be punished with the same degree of severity.




• Social debt refers to:

• Structured sentencing refers to:

A sentencing principle that holds that an offender’s criminal history should objectively be taken into account in sentencing.

A model of criminal punishment that includes determinate and commission-created presumptive sentencing schemes, as well as voluntary/advisory sentencing guidelines.




• Determinate sentencing refers to:

• Voluntary/advisory sentencing guidelines:

A model of criminal punishment in which an offender is given a fixed term that may be reduced by good time or gain time.

Recommended sentencing policies that are not required by law.



Structured Sentencing• Presumptive sentencing is a model of criminal

punishment that meets the following conditions:– A sentencing commission develops a range of

sentences.

– Sentencing judges are expected to sentence within the range or to provide written justification for departure.

– There is a mechanism for review of any departure from the guidelines, usually appellate review.




• Aggravating circumstances refers to:

• Mitigating circumstances refers to:

Circumstances relating to the commission of a crime that make it more grave than the average instance of that type of crime.

Circumstances relating to the commission of a crime that may be considered to reduce the blameworthiness of the defendant.



Critiques of Structured Sentencing

• Structured sentencing is overly simplistic, based on a primitive concept of culpability and incapable of offering hope for rehabilitation.

• While it reduces judicial discretion substantially, it does nothing to control prosecutorial discretion.

• It is a regressive social policy that does not consider offenders as individuals.



Mandatory Sentencing

• Mandatory sentencing is a structured sentencing scheme with enumerated punishments which are mandated for specific offenses or for habitual offenders convicted of a series of crimes.

– Three strikes laws



Mandatory Sentencing

• Under mandatory sentencing, officials tend to make earlier and more selective arrest, charging, and diversion decisions.

– Diversion refers to:The official suspension of criminal proceedings against an alleged offender at any point before the entering of a judgment, and the referral of that person to a treatment or care program administered by a nonjustice or private agency.



Truth in Sentencing

• In 1984, with the passage of the Comprehensive Crime Control Act, the federal government adopted presumptive sentencing.

• The act also addressed truth in sentencing.– This required that certain violent offenders

serve 85% of their sentences.



Federal Sentencing Guidelines

• The Sentencing Reform Act of 1984 established a nine-member U.S. Sentencing Commission.

– Built around a table containing 43 rows, each corresponding to one offense level.

– Six rows corresponded to the criminal history category of the offender.



Plea Bargaining under the Guidelines

• The commission allows plea bargaining to continue but requires that the agreement:

– Be fully disclosed in the record of the court.

– Detail the actual conduct of the offense.



Downward Departures in Federal Sentencing, 1995−2001



The Presentence Investigation

• Before imposing a sentence, a judge may request background information on the defendant, called a presentence investigation report.

– It is usually conducted by a probation officer and includes:

• Personal, social, financial, educational, and religious background.

• Criminal history.

• Health information, including alcohol and drug use.



The Victim−Forgotten No Longer

• Since the Victim’s Rights Movement of the 1970s, the sentencing process now frequently includes consideration of victim needs.

– Attempts to add a victim’s rights amendment to the U.S. Constitution

– Improved victim services

– Victim-impact statement



Crime Victims’ Rights Act, 2004

• Act gives victims of federal crime the right:– To be reasonably protected from the accused.

– To timely notice of any proceedings.

– To be included in such proceedings.

– To be reasonably heard at proceedings.

– To confer with the federal prosecutor.

– To full and timely restitution.

– To proceedings free from unreasonable delay

– To be treated with fairness and respect.



Modern Sentencing Options

• Four traditional sanctions:–Fines–Probation–Imprisonment–Death



Sentencing of Convicted Felons in State Courts



Court-Ordered Prison Commitments, 1960−2000



Modern Sentencing Options• Fines

– Can deprive offenders of the proceeds of criminal activity.

– Can promote rehabilitation by enforcing economic responsibility.

– Allow release of convicted offenders into the community but do not impose stringent controls of their behavior.

– Are not consistent with the “just deserts” philosophy.

– Are difficult to collect.



Death: The Ultimate Sanction

• Capital punishment is the most extreme sentencing option.

• 38 states have capital punishment.

– Majority use lethal injection.

– Electrocution is the second most common method.



U.S. Executions by State, 1976−2003



Habeas Corpus Review

• There is automatic review of all death sentences by appellate courts.

• A writ of habeas corpus directs the person detaining a person to bring him or her before a judicial officer to determine the lawfulness of the imprisonment.



Opposition to Capital Punishment

• It has been inflicted on innocent people.• It is not an effective deterrent.• It is, by the nature of our legal system, arbitrary.• It discriminates against certain ethnic and racial

groups.• It is too expensive to justify its use.• It is on the same moral level as the crimes

committed by the condemned.



Justifications for Capital Punishment

• Revenge– Only after the execution can the survivors, victims,

and the state be healed.

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

• Retentionist position– Once executed, offenders can commit no further

crimes.



The Courts and the Death Penalty

• Furman v. Georgia (1972)– The Court ruled that Georgia’s death penalty

statute allowed a jury unguided discretion, making it arbitrary and capricious.

• Gregg v. Georgia (1976)– The Court ruled that a two-stage procedural

requirement eliminated the arbitrariness.



The Future of the Death Penalty

• There is a need for modification to ensure procedural safeguards.

• Recommendations include:– Tighter controls on how the police investigate

cases.

– Controls on the potential fallibility of eyewitness testimony.

– Statutory reform to eliminate application based solely on the testimony of one person.

chapter 9 sentencing

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