Chapter 9. Sentencing, Appeals, and the Death Penalty

Chapter 9 Sentencing, Appeals, and the Death Penalty

Chapter Objectives After completing this chapter, you should be able to: Identify the general factors that influence a judge s sentencing decisions. Describe how judges tailor sentences to fit the crime and the offender. Distinguish between indeterminate and determinate sentences. Explain the three basic types of determinate sentences. 2 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Chapter Objectives List five rationales or justifications for criminal punishment. Explain the purposes of presentence investigation reports. List the legal bases for appeal. Identify the type of crime for which death may be a punishment. Summarize the three major procedural reforms the U.S. Supreme Court approved for death penalty cases in the Gregg decision. 3 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Sentencing If a criminal defendant pleads guilty or is found guilty by a judge or jury, then the judge (or sometimes a jury) must impose a sentence. 4 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Sentencing Judges are limited by statutory provisions and guided by: prevailing philosophical rationales. organizational considerations. presentence investigation reports. their own personal characteristics. 7 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions State and federal legislative bodies enact penal codes that specify appropriate punishments for each statutory offense, or class of offense. Five types of punishments are used in the United States: Fines. Probation. Intermediate punishments (more restrictive than probation but less restrictive and costly than imprisonment). Imprisonment. Death. 8 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions Within limits, judges tailor the punishment to fit the crime and the offender. Judges can combine punishments, or suspend a punishment if the offender: stays out of trouble. makes restitution, or seeks medical treatment. 9 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions Judges in states that have indeterminate sentencing statutes generally have more discretion in sentencing than do judges in states with determinate sentencing laws. 10 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Indeterminate Sentencing Determinate Sentencing Indeterminate Sentencing: A sentence with a fixed minimum and maximum term of incarceration, rather than a set period. Determinate Sentencing A sentence with a fixed period of incarceration, which eliminates the decision-making responsibility of parole boards. 11 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions Flat-time sentencing does not include options for parole and good time. Flat-time Sentencing: Sentencing in which judges may choose between probation and imprisonment but have little discretion in setting the length of a prison sentence. Once an offender is imprisoned, there is no possibility of reduction in the length of the sentence. Good Time: The number of days deducted from a sentence by prison authorities for good behavior or for other causes. 13 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions Mandatory sentencing specifies a number of years of imprisonment (usually within a range), but usually allows credit for good time, but does not allow release on parole. 14 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions Presumptive sentencing is a 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. 15 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions In today s law and order climate, state legislatures are increasingly replacing indeterminate sentences with determinate ones. Some argue that determinate sentences result in longer prison sentences and overcrowded prisons. The U.S. has been experiencing a crisis of prison overcrowding. 18 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions Determinate sentencing has several other criticisms: Prisons have become harsher, giving up on rehabilitation. The abolition of good time and parole makes discipline and control more difficult, because inmates have little incentive to behave. Some judges ignore guidelines they see as too harsh. 19 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions Further criticism of determinate sentencing: Determinate sentencing shifts sentencing discretion from judges to legislatures and prosecutors. Prosecutors still have discretion in plea negotiations, but operate in secret, whereas judges exercise discretion in the open. 20 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Statutory Provisions Further criticisms of determinate sentencing: In jurisdictions that retain good time, determinate sentencing shifts sentencing discretion from legislators and prosecutors to correctional personnel. It is virtually impossible to define in advance all of the factors that ought to be considered in determining a criminal sentence. 21 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Philosophical Rationales The goals of criminal sanctions or criminal punishment are the prevention and control of crime. Always at issue is how best to achieve those goals. 22 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Philosophical Rationales Historically, four major rationales have been given for the punishment imposed by the criminal courts: Retribution. Incapacitation. Deterrence. Rehabilitation. Restoration has been gaining more attention as a punishment rationale. 23 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Retribution Although it has probably always played some role in sentencing decisions, retribution is now increasingly popular with the public as a rationale for punishment. 24 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Revenge The punishment rationale expressed by the biblical phrase, An eye for an eye, and a tooth for a tooth. People who seek revenge want to pay back offenders by making them suffer for what they have done. 26 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Just Deserts The punishment rationale based on the idea that offenders should be punished automatically, simply because they have committed a crime they deserve it and the idea that the punishment should fit the crime. 27 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Retribution 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. 28 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Incapacitation Incapacitation makes it virtually impossible for offenders to commit crimes during the period of restraint. Incapacitation was done historically through exile, banishment, or death. Today, incapacitation is done through imprisonment or death. 29 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Deterrence There are two forms of deterrence: Special or Specific Deterrence The prevention of individuals from committing crimes again by punishing them. General Deterrence The prevention of people in general from engaging in crime by punishing specific individuals and making examples of them. Deterrence makes intuitive sense, but social science is unable to measure its effects. 30 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Rehabilitation For much of the 20th century, the primary rationale for punishing criminal offenders has been rehabilitation. Unfortunately, because the causes of crime are not fully understood, we don t know how to correct or cure criminal offenders. 31 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Rehabilitation The attempt to correct the personality and behavior of convicted offenders through educational, vocational, or therapeutic treatment and to return them to society as lawabiding citizens. 32 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Restoration and Victims Rights Restoration places equal emphasis on victims rights and needs, and the successful reintegration of offenders into the community. Restitution and community service are sometimes used. 33 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Restoration and Victims Rights Today, at least in some jurisdictions, a greater effort is being made to do something for victims and their survivors to restore them, as much as possible, to their previous state and to make them whole again. Every state has laws that protect the basic rights of crime victims in the criminal justice system. 34 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Restoration and Victims Rights In the sentencing process, the United States Supreme court ruled in 1991, in Payne v. Tennessee, that judges and juries may consider victim-impact statements in their sentencing decisions. 35 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Organizational Considerations A judge s sentence is guided by organizational considerations: Plea bargains. Prison overcrowding. Costs of the sentence vs. the benefits derived from it. 36 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Presentence Investigation Reports (PSI) Generally, a presentence investigation report (PSI) is prepared by a probation officer, who conducts as thorough a background check as possible on a defendant. Sometimes a PSI includes sentencing recommendations. 37 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Presentence Investigation Report Reports, often called PSIs or PSIRs, that are used in the federal system and the majority of states to help judges determine the appropriate sentence. They are also used in classifying probationers, parolees, and prisoners according to their treatment needs and security risk. 38 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Allocution In many jurisdictions, after the PSI has been submitted a sentencing hearing is held and the defendant is allowed a procedure called allocution. The defendant also has the opportunity to plead for a pardon. A forgiveness for the crime committed that stops further criminal processing. 39 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Allocution The procedure at a sentencing hearing in which the convicted defendant has the right to address the court before the sentence is imposed. During allocution, a defendant is identified as the person found guilty and has a right to deny or explain information contained in the PSI if his or her sentence is based on it. 40 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Allocution Among the claims that a convicted offender can make at allocution are: He or she is not the person who was found guilty at trial. A pardon has been granted for the crime in question. He or she has gone insane since the verdict. She is pregnant. The sentence must be deferred or adjusted. 41 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Personal Characteristics of Judges Among the personal characteristics of judges that have been found to affect their sentencing decisions are: Their socioeconomic backgrounds. The law schools they attended. Their prior experiences in and out of court. The number of offenders they defended earlier in their careers. 42 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Personal Characteristics of Judges Their biases concerning various crimes. Their emotional reactions and prejudices toward the defendants. Their own personalities. Their marital and sexual relations. 43 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Appeals Defendants can appeal their convictions on legal or constitutional grounds. Because the defendant has already been found guilty, the presumption of innocence no longer applies during the appellate process, and the burden of showing why the conviction should be overturned shifts to the defendant. 44 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Appeals Generally, an offender must file a notice of intent to appeal within 30 to 90 days after conviction. Also, the defendant must file an affidavit of errors specifying the alleged defects in the trial or pretrial proceedings. Nearly 80% of state trial court decisions are affirmed on appeal. 45 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

The Death Penalty As a punishment for the most heinous of crimes, the death penalty, or capital punishment, differs from other criminal sanctions. The United States Supreme Court has acknowledged, Death is different. 46 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

A Brief History of the Death Penalty in the United States The first American settlers brought with them the English penal code, which listed 50 capital offenses. Actual practice varied from colony to colony. 47 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

A Brief History of the Death Penalty in the United States The earliest recorded lawful execution in America was in 1608 in the colony of Virginia. Since then, there have been about 20,000 legal executions in the U.S. Only 3% of people executed were women. 87% of those were before 1866. About 2% of those executed in the U.S. since 1608 have been juveniles. 48 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

A Brief History of the Death Penalty in the United States Between 1990 and 2005, the U.S. was one of only seven countries that executed anyone who was under 18 at the time of the crime. The others were: Democratic Republic of Congo Iran Nigeria Pakistan Saudi Arabia Yemen 49 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court Before 1968, the only issues the Supreme Court considered in relation to capital punishment concerned the means of administering the death penalty. 50 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court Currently there are five methods of execution in use: 1. Lethal injection 2. Electrocution 3. Lethal gas 4. Hanging 5. Firing squad 51 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court Between 1968 and 1972, an informal moratorium on execution was observed as a series of lawsuits challenged the constitutionality of capital punishment. The court set aside death sentences in 1972 for the first time ever. 52 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court In the Furman decision, the Court held that the way the death penalty was administered was unconstitutional, but not capital punishment itself. The decision voided the death penalty laws of some 35 states, and the death sentences of more than 600 men and women were commuted to imprisonment. 53 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court By 1974, 30 states had enacted new death penalty statutes designed to meet the Court s objections. They came in two forms: Mandatory statutes that mandated capital punishment for certain crimes. Guided-discretion statutes that provided specific guidelines for judges and juries. 54 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court Mandatory statutes were rejected in 1976. In the Gregg decision (also in 1976), the Court upheld the constitutionality of guided-discretion statutes. Since 1977 and as of March 2011, more than 1,243 people had been executed in 34 states, including 466 in Texas. 55 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court Currently (as of March 21, 2011), 36 jurisdictions have capital punishment statues. 17 jurisdictions do not have capital punishment statutes. 57 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court In decisions since Gregg, the Supreme Court has limited the crimes for which death is considered appropriate and has further refined death penalty jurisprudence. The Court has generally limited the death penalty to those offenders convicted of aggravated murder. 59 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court The Court barred states from executing inmates who have developed mental illness while on death row. In 2002, the Court banned the execution of mentally retarded offenders. Capital punishment is limited to offenders who are 16 or older at the time of the crime. In 2005, the Court limited capital punishment to offenders who are 18 years of age or older at the time of the crime. 60 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Enter the United States Supreme Court 61 The 1994 federal crime bill expanded the number of federal crimes punishable by death to about 50, including: Treason Espionage Drug trafficking in large quantities Attempting, authorizing, or advising the killing of any public officer, juror, or witness in a case involving a continuing criminal enterprise regardless of whether such a killing actually occurs. As of year-end 2009, the number of federal crimes punishable by death had been reduced to 41. Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

The Procedural Reforms Approved in Gregg In Gregg, the Court assumed, without any evidence, that the new guided discretion statutes would eliminate the arbitrariness and discrimination that the Court found objectionable in its Furman decision. 62 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

The Procedural Reforms Approved in Gregg The Court was particularly optimistic about procedural reforms: Bifurcated trials. Guidelines for judges and juries. Automatic appellate review. 63 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Bifurcated Trials If a defendant is found guilty in the guilt phase, then at the penalty phase, the judge or jury must determine whether the sentence will be death or life in prison. Some states require the selection of two separate juries in capital trials; one for each phase. 64 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Guidelines for Judges and Juries What the court found especially appealing about the guideddiscretion statues is that judges and juries are provided with standards that presumably restrict, but do not eliminate, their sentencing discretion. Judges and juries in most states are provided with lists of aggravating factors and mitigating factors. 65 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Guidelines for Judges and Juries Aggravating Factors In death sentencing, circumstances that make a crime worse than usual. Mitigating Factors In death sentencing, circumstances that make a crime less severe than usual. 66 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Automatic Appellate Review Currently, 33 of the 34 states with death penalty statutes provide for automatic appellate review of all death sentences, regardless of the defendant s wishes. Although the Supreme Court does not require it, some states have provided a proportionality review. 67 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Proportionality Review A review in which the appellate court compares the sentence in the case it is reviewing with penalties imposed in similar cases in the state. The object is to reduce, as much as possible, disparity in death penalty sentencing. 68 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Collateral Review In addition to the automatic appellate review, there is a dual system of collateral review for capital defendants. They may appeal their convictions and sentences through state and federal appellate systems. 69 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Writ of Habeas Corpus Some death row inmates whose appeals have been denied by the U.S. Supreme Court may still try to have the Supreme Court review their cases on constitutional grounds by filing a writ of habeas corpus. 70 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Appellate Review The Legislature and Supreme Court have significantly restricted habeas petitions recently in order to reduce long delays in executions. Some people argue that the appellate reviews are unnecessarily delaying tactics (at least those beyond the automatic review). 71 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Appellate Review However, between 1973 and 2010, 36% of the initial convictions or sentences in capital cases were overturned on appeal, as a result of: Denial of the right to an impartial jury. Problems of tainted evidence and coerced confessions. Ineffective assistance of counsel. Prosecutors references to defendants who refuse to testify. 72 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

The Death Row Population The death row population in the U.S. continues to grow, but more slowly than one might expect because inmates have: Been removed from death row by having their convictions or sentences reversed. Died of natural causes, been killed or committed suicide. Received commutations. Reductions in sentences, granted by a state s governor. 73 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Prospects for the Future Among Western, industrialized nations, the United States is the only nation to employ capital punishment. Even where capital punishment is employed in the U.S., most jurisdictions use it rarely. 75 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Prospects for the Future The death penalty in the U.S. appears to be a waning institution: Public support for the death penalty appears to be dropping. The American public is expressing greater concern about the way the death penalty is being administered. In 1997, the American Bar Association requested death penalty jurisdictions to refrain from using the sanction until greater fairness and due process could be assured. 77 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Prospects for the Future The leaders of most organized religions in the U.S. oppose capital punishment. World opinion increasingly opposes the death penalty, and the European Union requires the abolition of the death penalty as a condition for admittance. 78 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Prospects for the Future On the other hand, capital punishment in some states has proven stubbornly resilient: Death penalty support among the American public remains relatively strong. The public is skeptical that capital murderers sentenced to life without parole will remain imprisoned for life. People believe courts and legislatures will be able to fix problems with the administration of the death penalty. Even jurisdictions that do not use the death penalty have not abolished it. 79 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Prospects for the Future There are at least three major factors in the public s death penalty support: The desire for vindictive revenge. The incapacitative power of the penalty. The symbolic value it has for politicians and law enforcement officials. 80 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.

Prospects for the Future The possibility of executing an innocent person does not seem to be a crucial problem for a majority of the Supreme Court. Although the death penalty has virtually no effect on crime, it remains a favored political silver-bullet a simplistic solution to the crime problem used by aspiring politicians and law enforcement officials. 81 Copyright 2012 The McGraw-Hill Companies, Inc. All rights reserved.