Chapter 6 Sentencing and Corrections Chapter Objectives Describe the different philosophies of punishment (goals of sentencing). Understand the sentencing process from plea bargaining to conviction. Describe the components of a presentence investigation report. Describe changes in the goals of sentencing over time, including the shift from indeterminate to determinate sentences. Outline some of the changes in sentencing that made punishments for offenders more severe. Describe some of the controversies surrounding use of the death penalty. Sentencing Options Judges have a number of options, although they are limited by jurisdictional penal codes. o minimum and maximum penalties outlined in penal code o examples economic sanctions diversion probation confinement death o broad discretion in imposing sentence There are sometimes significant differences in severity of sentences between jurisdictions. o credit granted for time served o served consecutively or concurrently o variation in severity o severity dependant upon several factors aggravating or mitigating circumstances perceived potential for rehabilitation first offense o sentencing disparity justice by geography extra-legal factors goals of sentencing (philosophies of punishment) rehabilitative punitive Philosophies of Punishment Retribution, Just Deserts, Deterrence, and Incapacitation Correctional systems guided by these principles are less likely to offer extensive rehabilitation services. o provide basic level of care and supervision o recreational or work programs to keep prisoners occupied
Retribution o emotionally-charged anger outrage vengeance o traced back to Code of Hammurabi o stresses revenge o focuses on offender s past behavior o lex talionis eye for an eye, tooth for a tooth Just Deserts o similar to retribution o does not contain emotional element of vengeance o punishment is fair or equitable for criminal behavior o restores state of balance to society o focuses on offender s past behavior Deterrence o belief future criminal behaviors are prevented when we punish offenders o two different components general punishment deters others from violating law specific (individual) punishment deters individual being punished from further criminal behavior o no clear relationship between punishment and deterrence o suggested that deterrence is more likely to work if punishment is applied celerity certainty severity o limitations crimes often not reported, not punished, and cases are not processed swiftly punishment for most crimes, especially first time offenders, not very severe Incapacitation o purpose is to make it physically impossible for offender to reoffend o warehousing simply holding prisoner until release receive only basic services bed meals limited recreation o relatively small number of repeat offenders responsible for disproportionate number of offenses selective incapacitation identify and incarcerate high-risk offenders difficult to predict who will recidivate false positives
lengthy sentence for one who may not commit future crimes false negatives one believed not to commit future crimes, but does Rehabilitation, Restitution, and Restoration The focus is on the offender and the capacity to change. o reduces recidivism o greater public safety and tranquility Rehabilitation o penitentiaries founded at turn of 18 th century o involves positive changes to offender s attitude and behavior o allows offender to avoid recidivism o allows offender to positively contribute to society o programs based on increasing education addressing life problems vocational preparation Restitution o involves offender repaying community or victim for damages o has lengthy history reparation compensation weregild forcing reparation o primary uses today property offenses condition of probation Restoration (restorative justice) o extends concept of restitution o includes structured and supervised contact between offender and victim o focuses harms committed steps offender takes to repair damage to community and victim o examples family group counseling commonly used with juveniles circle sentencing oriented for adult offenders intent is to design interventions that respond to unique circumstances of offender nature of offense damage done o none of philosophies exist in pure form o goals often blended by correctional or court systems
Considerations in Sentencing The Going Rate The American legal system is said to be adversarial. o truth emerges from oppositional process between prosecution and defense One argument is that most legal systems are based on non-adversarial relationships. o vested interest in getting along over long-term One of the cornerstones of any courtroom work group is shared understanding of the seriousness of an offense, which is known as the going rate. o standard operating procedures regularizing sentences normalizing plea bargaining o varies across courtroom work group settings o tailor punishments perceived unique needs desires of specific community Plea Bargaining Over 90% of criminal cases are resolved through plea bargaining. Advantages o is cheaper than expensive and time-consuming trials o prosecutor has certainty of guilty plea jury nullification refuse to convict though obviously guilty o offender unlikely to successfully appeal conviction Problems o innocent defendants pressured into guilty plea o vertical and horizontal overcharging charging with more severe crime charging with a number of offenses Bordenkircher v. Hayes o wealthier defendants obtain more skilled attorneys Criticisms o conservatives soft on crime o liberals unjust outcomes Judges may intervene in the process. Racial, Gender and Class Disparities at Sentencing Blacks and Latinos have a higher risk of arrest and incarceration. o differential involvement in crime o discriminatory practices of law enforcement and courts o public defenders overworked few resources o economically disadvantaged neighborhoods with higher levels of police patrol and interventions
Wealthier defendants have a greater likelihood of avoiding or minimizing legal consequences. o socioeconomic status afford experienced attorney resources for examination/testing of evidence o mitigating factor wealthy may make restitution prior to sentencing Women are under-represented in the correctional population. o growth in women s incarceration outpaced men s in recent years o historically benefited from paternalism of criminal justice agencies chivalry hypothesis seen as needing protection o sexuality girls punished harshly in juvenile justice systems women punished harshly for involvement in prostitution o recently more equitable treatment by justice systems more power political social economic war on drugs more comfort assuming male roles Sentencing commissions have been established. o review sentencing outcomes o ensure consistent application of punishments Sanctions tend to be fairly uniform within a given jurisdiction. The process of a judge sentencing an offender is relatively transparent. o factors that affect plea bargains not as transparent Small amounts of bias throughout the process may bring about cumulative disadvantages for the defendant. Prior sentencing may also contribute to disadvantages. Individualized Justice versus Consistency Individualized o tailored sentencing offender s unique combination of strengths and weaknesses o potential for excessive judicial leniency or harshness judges and prosecutors elected officials o potential to perpetuate extralegal biases Consistency o treating everyone who commits a certain offense the same o mandatory minimum sentences o mandatory sentencing enhancements policies rarely implemented in consistent manner throughout different jurisdictions
decisions to proceed with sanctions made by prosecutors once guilty plea entered, judge historically has little discretion in length of sentence imposed United States v. Booker o more discretion in sentencing o mandatory minimum guidelines advisory rather than rigid Presentence Investigations These are typically conducted by probation officers. o following conviction o prior to sentencing They are generally comprised of many components. o present offense o prior record o personal history o summary and recommendations o sources of information They are not ordered for every case. They are also used in other capacities. o develop plan for probationer s community supervision and treatment o to place inmate in most appropriate prison housing unit o develop institutional case plan o release planning o parole decisions o conduct research Controversies o recommendations based on knowledge of judge expectations sentencing practices o judges follow recommendations o wealthier offenders have independent investigation completed o may favor offenders with similar backgrounds and histories to their own o inclusion of hearsay information o little evidence to determine accuracy of these criticisms Changes in Sentencing Policy There was a shift from indeterminate to determinate sentences. o indeterminate based on assumptions offenders could rehabilitate themselves judge specifies a minimum and maximum prison term timeframe early release as reward for positive behavior o determinate exact number of years to serve specified by judge at sentencing Sentencing Reform Act of 1984 o federal government ended parole
Mandatory Minimum Sentences These specify certain minimum penalties for a specific crime. They were first enacted more than 30 years ago with the Barley-Fox law in Massachusetts. Judges have very little discretion. They are intended to have a strong deterrent effect. Limitations o offender not always aware of these policies may not have deterrent effect o discretion shifts from judges to prosecutors o might not have significant crime control impact on some offenses o imprisoning drug offenders, and others, for long terms yields marginal reduction in crime is expensive does not promote rehabilitation does not provide incentive to avoid misconduct in prison Sentencing Guidelines These are also known as structured sentencing in some states. They were first introduced in Minnesota and had two main goals. o ensuring uniformity in sentencing reduce differences race gender class o achieving proportionality punished according to severity of offense They are used to preserve confidence in the justice system by sentencing offenders who commit similar crimes in a comparable manner. It places restrictions on the judge at sentencing. o allows for some discretion o can consider aggravating or mitigating factors aggravating circumstances that warrant more punitive sentence mitigating evidence about offender s character facts about offense that would warrant a less harsh sentence Truth-in-sentencing It is encouraged through funding by the federal government. If convicted of certain violent offenses, offenders serve 85% of their sentence before being eligible for release. Three Strikes This imposes lengthy prison sentences for repeat felony offenders. There is discretion in the use of these sentences. Habitual offender legislation is not a new approach to sentencing repeat offenders.
There has been disagreement about who should receive these lengthy sentences. o inclusion of juvenile offenses o justice by geography Death Penalty Once widely used, it is falling out of favor in many nations. Fewer offenders can legally be executed in the U.S. o juveniles o mentally retarded It is rarely imposed. The likelihood of being sentenced to death is very low. Once sentenced, offenders will likely reside on death row for an extended period before execution. o automatic review conviction sentence o ensure individual liberties are protected o ensure innocent persons are not executed Innocence Project Death Penalty Information Center There are some controversies. o unfair / arbitrary application of death penalty differing laws in different jurisdictions changing legislation quality of representation o Craig Haney examined trial and sentencing process jury selection jurors likely to oppose death penalty excluded sentencing instructions to jury do not always adequately address issues mitigation life without possibility of parole o intense debate over general deterrent value some support for deterrent value brutalization effect murders increase after offender is put to death o overrepresentation of African-Americans on death row There are some issues with death penalty trials. o expensive o often related to circumstances high-profile outrageous egregious o media attention
o tend to be longer than other homicide trials bifurcated proceedings establishment of guilt sentencing phase o sentencing undertaken by judge or jury some jurisdictions require unanimous decision The following are Supreme Court boundaries in death penalty cases. o Furman v Georgia (1972) develop procedures to reduce discretion of judges and juries o Gregg v Georgia (1976) ensure sentences not be implemented in capricious manner o Atkins v Virginia (2002) cannot execute mentally retarded o Roper v Simmons (2005) cannot execute if under 18 years of age at time of crime Today, executions are considered more humane than in the past. o more private o more humane methods lethal injection is norm