criminal justice - chapter 9

Criminal Justice:A Brief Introduction

Ninth Edition

By Frank Schmalleger

Pearson Education, Inc.

Criminal Justice:A Brief Introduction

Ninth Edition

By Frank Schmalleger

Pearson Education, Inc.

Chapter 9Sentencing

Copyright © 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.Upper Saddle River, New Jersey 07458 • All rights reserved

2Criminal Justice: A Brief Introduction, 9/eFrank Schmalleger

The Philosophy and Goals of Criminal Sentencing

• Traditional sentencing options have included imprisonment, fines, probation, and death

• Five goals– Retribution– Incapacitation– Deterrence

• General deterrence• Specific deterrence

– Rehabilitation– Restoration


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Retribution

• 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

• A model of criminal sentencing that holds that criminal offenders deserve the punishment they receive

• Primary sentencing tool of the just deserts model is imprisonment

Criminal Justice: A Brief Introduction, 9/eFrank Schmalleger


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Incapacitation

• 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– Separate offenders from the community to reduce

opportunities for further criminality– Incapacitation requires only restraint, not punishment



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Deterrence

• Deterrence– A goal of criminal sentencing that seeks to inhibit

criminal behavior through the fear of punishment– Overall goal is crime prevention

• Specific deterrence– A goal of criminal sentencing that seeks to prevent a

particular offender from engaging in repeat criminality

– Reduce the likelihood of recidivism



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Deterrence• 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

• 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



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Rehabilitation

• Rehabilitation– 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

• With as many as 90% of former convicted offenders returning to crime following release from a prison-based treatment program, incapacitation grew more appealing



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Restoration

• Restoration– A goal of criminal sentencing that attempts to make

the victim “whole again”• Restorative Justice (RJ)

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

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

members of the community



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Indeterminate Sentencing

• Explanation of Indeterminate Sentencing– A model of criminal punishment that encourages

rehabilitation through the use of general and relatively unspecific sentences

– Relies heavily on judges’ discretion to choose among types of sanctions and to set upper and lower limits on the length of prison stays

• Consecutive Sentence– Served one after the other



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Indeterminate Sentencing

• Concurrent Sentence– Two or more sentences served at the same time

• Indeterminate model created to take into consideration differences in the degree of guilt

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



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Critiques of Indeterminate Sentencing

• Since the 1970s, the model has been criticized for contributing to inequality in sentencing

• Also criticized for perpetuating a system under which offenders might be sentenced more on the basis of personal and social characteristics than on culpability

• Tends to produce dishonesty in sentencing



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Critiques of Indeterminate Sentencing

• Gain Time– The amount of time deducted from time to be served

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

• Good Time– The amount of time deducted from time to be served

in prison on a given sentence as a consequence of good behavior



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Structured Sentencing

• Critics of indeterminate model called for the recognition of three fundamental sentencing principles– Proportionality– Equity– Social debt

• Proportionality– Severity of sanctions should bear a direct relationship

to the seriousness of the crime committed



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• Equity– Similar crimes should be punished with the same

degree of severity, regardless of the social or personal characteristics of the offenders

• Social Debt– An offender’s criminal history should be objectively

be taken into account in sentencing decisions



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• Structured Sentencing– A model of criminal punishment that includes

determinate and commission-created presumptive sentencing schemes

• Determinate Sentencing– A model of criminal punishment in which an offender

is given a fixed term of imprisonment that may be reduced by good time or gain time

– Also specify an anticipated release date



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Structured Sentencing• Voluntary/Advisory Sentencing Guidelines

– Recommended sentencing policies that are not required by law

– Usually based on past sentencing practices– Serve as guides to judges– A form of structured sentencing

• Presumptive Sentencing– Developed by a sentencing commission rather than

state legislature– Explicit and highly structured



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– Typically relying on a quantitative scoring instrument

– Not voluntary/advisory in that judges had to adhere to the sentencing system or provide a written rationale for departing from it



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• Aggravating Circumstances– Circumstances relating to the commission of a crime

that make it more grave than the average instance of that crime

• Mitigating Circumstances– Circumstances relating to the commission of a crime

that may be considered to reduce the blameworthiness of the offender



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Federal Sentencing Guidelines

• Comprehensive Crime Control Act (1984)– Addressed the issue of Truth In Sentencing

• A close correspondence between the sentence imposed on an offender and the time actually served in prison

– Nearly eliminated good-time credits and began the process of both phasing out federal parole and eliminating the U. S. Parole Commission

– Funds available for states that adopt truth-in-sentencing laws and are able to guarantee that certain violent offenders will serve 85% of their sentences

• Mistretta v. U. S. (1989)



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Federal Guideline Provisions

• Specified a sentencing range from which judges had to choose

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

• Federal sentencing guidelines are built around a table containing 43 rows, each corresponding to one offense level– Defendants may move into the highest criminal

history category by virtue of being designated a career offender



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Plea Bargaining under the Guidelines

• It required that the agreement– Be fully disclosed in the record of the court– Detail the actual conduct of the offense

• Melendez v. U. S. (1996)



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The Legal Environment of Structured Sentencing

• Apprendi v. New Jersey (2000)• U. S. v. O’Brien (2010)• Blakely v. Washington (2004)• Cunningham v. California (2007)• U. S. v. Booker (2005)• U. S. v. Fanfan (2005)• Rita v. U. S. (2007)• Oregon v. Ice (2009)• Gall v. U. S. (2007)



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Three Strikes Laws

• About half of the states have passed three-strike legislation

• Questions remain about the effectiveness of three-strikes legislation



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Mandatory Sentencing

• Mandatory Sentencing– A structured sentencing scheme that allows no

leeway in the nature of the sentence imposed

• 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



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The Presentence Investigation

• Presentence Investigation (PSI)– The examination of a convicted offender’s

background prior to sentencing• One of three forms

– A detailed written report on the defendant’s personal and criminal history

– An abbreviated written report summarizing the information

– Verbal report to the court



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The Victim – Forgotten No Longer

• Sentencing process now frequently includes consideration of the needs of victims and survivors

• No victims’ rights amendment to the federal Constitution– More than 30 states have passed their own victims’

rights amendments• Violent Crime Control and Law Enforcement Act

of 1994



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The Victim – Forgotten No Longer

• Much of the philosophical basis of today’s victims’ movement can be found in the restorative justice model

• In 2001, the USA PATRIOT Act amended the Victims of Crime Act of 1984– Made victims of terrorism and their families eligible

for victims’ compensation payments



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Victim-Impact Statements

• Victim-Impact Statements• An in-court statement made by the victim or

survivors, to sentencing authorities seeking to make an informed sentencing decision

• One study of the efficacy of victim-impact statements found that sentencing decisions are rarely affected by them– Little effect because judges and other officials “have

established ways of making decisions which do not call for explicit information about the impact”



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Sentencing Practices

• State courts convicted 1,132,000 felons in 2006– About 41% were sentenced to active prison terms– 28% received jail sentences involving less than one

year’s confinement– 27% were sentenced to probation with no jail or

prison time to serve– The largest offense category for which state felons

were sent to prison was drug offenses



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Fines

• One of the oldest forms of punishment• 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• Day-fine system



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Habeas Corpus Review

• Writ of Habeas Corpus– A writ that directs the person detaining a prisoner to

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

• McCleskey v. Zant (1991)• Schlup v. Delo (1995)• Felker v. Turpin (1996)• Elledge v. Florida (1998)



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The Courts and the Death Penalty

• Wilkerson v. Utah (1878)• In re Kemmler (1890)• Furman v. Georgia (1972)• Gregg v. Georgia (1976)• Apprendi v. New Jersey (2000)• Ring v. Arizona (2002)• Poyner v. Murray (1993)• Campbell v. Wood (1994)• Baze v. Rees (2008)


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