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Chapter 14:
Psychology of Punishment and Sentencing

PSYCHOLOGY OF PUNISHMENT AND SENTENCING

The purpose of a sentence depends on the nature of the crime, characteristics and experiences of the offender, temperament of the judge, and in some cases, public sentiment.
Judges have considerable discretion in the sentences they impose, and significant sentencing disparities can result.

At the end of 2009, about 3.2% of the population—1 in 32 adults—was incarcerated or on probation or parole.

PSYCHOLOGY OF PUNISHMENT AND SENTENCING

Racial disparities plague the criminal justice system.
It is predicted that 1 of every 3 African American boys born today will spend some time in prison, as will 1 in 6 Latino males, and 1 in 17 White males.
Although crime rates among females are much lower, racial disparities are still apparent.

PSYCHOLOGY OF PUNISHMENT AND SENTENCING

Psychologists have identified at least seven different goals of punishment:
1) General deterrence. The punishment of an offender is assumed to discourage other potential lawbreakers.
2) Individual deterrence. Punishment of the offender is presumed to keep that person from committing other crimes in the future.

THE PURPOSES OF PUNISHMENT

3) Incapacitation. If a convicted offender is sent to prison, society can feel safe from that felon while he or she is confined.
4) Retribution. Offenders should not benefit from their crimes; rather, they should receive their “just deserts.”
5) Moral outrage. Punishment can give society a means of catharsis and relief from the feelings of frustration, hurt, loss, and anger that result from being victims of crime.

THE PURPOSES OF PUNISHMENT

6) Rehabilitation. The hope that offenders will recognize the error of their ways and develop new skills, values, and lifestyles.
7) Restitution. Wrongdoers should compensate victims for their damages and losses.

THE PURPOSES OF PUNISHMENT

Most punishment goals are utilitarian. They are intended to accomplish a useful outcome, such as compensating the victim, deterring crime, or incapacitating or rehabilitating the defendant.

UTILITARIAN APPROACHES

The original purpose of prisons was to rehabilitate (“correctional institutions”), but high recidivism rates indicate that prisons have not been very effective at rehabilitating offenders.
Recent research suggests that rehabilitation can be effective when it is tailored to an offender. Unfortunately, many institutions offer only one-size-fits-all interventions.

UTILITARIAN APPROACHES

Two of the punishment goals (retribution and moral outrage) are retributive: they involve looking back at the offense and determining what the criminal “deserves” as a consequence of committing it.

RETRIBUTIVE APPROACHES

Public Preferences for Deterrence and Retribution. Using a technique called policy capturing, Carlsmith et al. (2002) assessed people’s punishment motives (deterrence vs. retribution).
The data showed a high sensitivity to factors associated with retribution and relative insensitivity to factors associated with deterrence.

RETRIBUTIVE APPROACHES

People’s preferences for punishment apparently focus on their sense of what an offender deserves.
Interestingly, that’s not what people say about their punishment beliefs (Carlsmith, 2008).
People are more likely to indicate support for punishment that deters criminals. People have a limited awareness of their reasons for their punishment preferences.

RETRIBUTIVE APPROACHES

One of the retributive goals, moral outrage, allows society the satisfaction of knowing that offenders have been made to pay for the harms they caused.
Kahan (1996) argues that for a sentence to be acceptable to the public, it must reflect society’s outrage.
Kahan argued that imposing a shaming penalty would allow society to express its moral denunciation of criminal wrongdoers.

RETRIBUTIVE APPROACHES

The impetus for alternative sentences like shaming is twofold:
1) Judges have become frustrated with revolving-door justice.
Many offenders who are released from prison eventually return, suggesting that their punishments had little long-term effectiveness.
2) Judges are aware of the problem of prison overcrowding and the high costs of incarceration.

RETRIBUTIVE APPROACHES

The goals of restorative justice are:
to repair the harm and restore the losses caused by offensive activity
to reintegrate offenders into society
to empower victims and the community to move from feelings of vulnerability and loss to a sense of understanding and closure

RESTORATIVE APPROACHES

For less serious crimes, people prefer to respond with restorative measures, and even for more serious offenses, people prefer responses that combine restorative procedures and punitive sanctions (i.e., prison sentences), rather than either of these options alone.

RESTORATIVE APPROACHES

Sentencing is a judicial function.
Many legislators believe that judges should have little or no discretion. They emphasize retribution and argue for mandatory sentences, sentencing guidelines, and the abolition of parole. (because they and their constituents believe that judges are too lenient.)
Which, in essence grants the discretion to the legislative branch of Government. (themselves)

JUDICIAL DISCRETION IN SENTENCING

Other legislators say that judges should have discretion to make the sentence fit not only the crime but the criminal as well.

JUDICIAL DISCRETION IN SENTENCING

Some states have indeterminate sentencing: judges impose a variable period of incarceration for a given offense (e.g., 6-20 years) and a parole board determines the actual date of release.

SENTENCING POLICIES

Other states have determinate sentencing: offenders are sentenced for a fixed length of time. Here judges have little choice about the length of sentences, and there is no parole.

SENTENCING POLICIES

In a further attempt to reduce discretion, some states impose mandatory minimum sentences for certain offenses, including drug crimes.

SENTENCING POLICIES

Current federal sentencing policy is based on the Sentencing Reform Act of 1984 that abolished parole and established a Sentencing Commission to develop mandatory sentencing guidelines.
An overriding goal of the Sentencing Commission was to ensure uniformity of sentences.

SENTENCING POLICIES

In 2005, the U.S. Supreme Court decided that the mandatory nature of the guidelines was unconstitutional (U.S. v. Booker, 2005).
Federal sentencing guidelines are now advisory.

SENTENCING POLICIES

The judge receives a file on the offender that contains information about the offender’s personal history and prior convictions (if any).
The judge reviews the file before the sentencing hearing.

SENTENCING PROCESS

At the hearing, recommendations for a sentence are presented to the judge first by the prosecutor and second by the defense attorney.
Judges’ sentencing decisions are highly influenced by the prosecutor’s request- Many judges are former prosecutors. (the initial request serves as an anchor). Defense attorneys’ sentencing recommendations are also influenced by the prosecutors’ demands.

SENTENCING PROCESS

In addition to demands from the prosecutor and defense attorney, the judge also has a probation officer’s report and recommendation.
The judge may ask the offender questions and will usually permit the offender to make a statement.
In some cases, a forensic mental health professional may provide input.
On the basis of these sources of information and taking sentencing options into account, the judge then delivers a sentence.

SENTENCING PROCESS

Thus far, we have described a system of front-end sentencing by judges that mark the beginning of an offender’s punishment.
Back-end sentencing occurs when parolees are arrested for new crimes or violate the conditions of their parole and are returned to prison by state parole boards.
Back-end sentencing is now responsible for approximately one-third of all prison admissions.

SENTENCING PROCESS

To what extent do judges, during sentencing, consider factors relevant to the decision (e.g., seriousness of the crime) versus seemingly irrelevant factors like race, ethnicity, and gender?
Sentences do correlate strongly with crime severity.

DETERMINANTS OF SENTENCING

An offender’s criminal record is relevant in every jurisdiction and most states require those with prior offenses to serve longer terms.

DETERMINANTS OF SENTENCING

Gender effects vary with the crime. Males are more likely to be sentenced to prison and serve longer sentences for property and drug offenses.
Women are just as likely as men to be sentenced to prison for committing a violent offense.

DETERMINANTS OF SENTENCING

According to the focal concerns theory of judicial decision making, judges focus on three concerns when sentencing:
1) the defendant’s culpability
2) protection of the community (emphasizing incapacitation and general deterrence)
3) practical constraints and consequences of the sentence (including concerns about disrupting ties to children and other family members)
THIS SOUNDS LIKE A TEST QUESTION!!!

DETERMINANTS OF SENTENCING

Crime victims’ gender also has an impact on sentencing decisions.
For example, among Texas offenders convicted of three violent crimes in 1991, offenders who victimized females received substantially longer sentences than those who victimized males.

DETERMINANTS OF SENTENCING

Race of the offender also influences sentencing decisions.
Researchers have found that African-Americans were sentenced more harshly than Whites who committed comparable crimes (disparity was larger for drug offenses).

DETERMINANTS OF SENTENCING

Another factor that influences judicial sentencing patterns is the way a conviction came about: whether by guilty plea or trial.
Defendants who plead guilty are often given a reduced sentence.
The judge’s background and personal characteristics may also influence their decisions.

DETERMINANTS OF SENTENCING

Not all juveniles come into the system via arrests. Some are referred by school officials, social service agencies or parents.
There’s an emphasis on intervening versus punishing youthful offenders.

SENTENCING JUVENILE OFFENDERS

Juvenile justice officials must decide whether to send the case into the court system or divert the offender to alternative programs (e.g., drug treatment).

SENTENCING JUVENILE OFFENDERS

If the decision is to involve the courts, then prosecutors recommend, and juvenile court judges decide, whether a particular case will be handled in juvenile court or transferred to criminal court.
Judges’ beliefs about the deterrent effects of transfer—the possibility that juveniles will refrain from committing crimes because they fear being tried as adults—affect these decisions.

SENTENCING JUVENILE OFFENDERS

Nearly 2/3 of young people whose cases are adjudicated in juvenile court are found to be delinquent and moved to the sentencing, or dispositional phase of the case.
Dispositional hearings typically combine adversarial procedures and attention to the particular needs—social, psychological, physical—of the child.

JUVENILE COURT DISPOSITIONS

Goals of dispositions are reflected in the juvenile court judges’ options which include:
1) commitment to a secure facility
2) probation, sometimes with intensive supervision
3) referral to a group home or other lower security residential placement
4) referral to day treatment or a mental health program
5) imposition of a fine, community service, or restitution

JUVENILE COURT DISPOSITIONS

In 2007, nearly 60% of juvenile offenders were sentenced to probation, and 25% were sentenced to some sort of out-of-home placement.

JUVENILE COURT DISPOSITIONS

Juveniles who meet the criteria for transfer to adult criminal court are typically sentenced under blended sentencing statutes that combine the options available in juvenile court with those used in criminal court.

BLENDED SENTENCING

These offenders can then stay under juvenile court jurisdiction and receive more lenient sentences.
They can also be subjected to harsher sentences if they commit new offenses, violate probation, or fail to respond to rehabilitation efforts.

BLENDED SENTENCING

Recent findings raise questions about the effectiveness of blended sentencing because roughly 50% of serious delinquents released early without continuing their sentence in adult prison were rearrested for a felony offense.

BLENDED SENTENCING

Judges can also impose adult sanctions—sometimes very lengthy prison sentences—on offenders who were under 18 when they committed a serious crime.

LIFE SENTENCES FOR JUVENILE OFFENDERS

Life sentences are often a mandatory consequence of being tried as adults and
convicted of murder
attempted murder
felony murder (participating in a crime that involved a murder)

LIFE SENTENCES FOR JUVENILE OFFENDERS

Some argue that applying life-without-parole sentences to juveniles constitutes cruel and unusual punishment.
Others say that such statutes are comforting to victims and make sense in their “adult-crime, adult-time” approach.
Public sentiment is generally not supportive of life sentences for juveniles except in cases of murder.

LIFE SENTENCES FOR JUVENILE OFFENDERS

Many believe that sex offenders are especially likely to reoffend and therefore require different kinds of punishment.
While most convicted sex offenders were not rearrested for another sex crime within six years, many sex offenders have committed more sex crimes than those for which they were arrested, so recidivism rates may underestimate actual rates of sexual offending.

SENTENCING SEX OFFENDERS

Judges and corrections professionals treat sex offenders differently than other offenders, based on the belief that they are particularly likely to reoffend. Upon release from prison, sex offenders in many jurisdictions:
1) are required to register with state officials who then publicly notify the community about the location of the offender’s residence

SENTENCING SEX OFFENDERS

2) are prohibited from living within certain distances of schools, day-care facilities, parks, and other locations frequented by children
3) can be involuntarily committed to a mental health facility following the completion of their sentence
In addition, sex offenders can be subjected to extraordinary sanctions, including enhanced sentences and mandatory treatments.

SENTENCING SEX OFFENDERS

Convicted sex offenders are required to register with local law enforcement after they are released from prison and to notify authorities of subsequent changes of address.
Unfortunately, many sex offenders do not comply.

REGISTRATION AND NOTIFICATION

Community notification laws allow states to disseminate information about convicted sex offenders to the public.
Community notification has led to harassment and vigilantism directed at sex offenders, and has interfered with offenders’ ability to find stable work and housing.

REGISTRATION AND NOTIFICATION

Registration laws may also be ineffective. It tends not to reduce the number of forcible rapes reported.

REGISTRATION AND NOTIFICATION

Residency restrictions have been enacted by most states and hundreds of communities. They establish a “buffer zone” around schools, parks, and even bus stops in which sex offenders may not live.

RESIDENCY RESTRICTIONS

The premise is that sex offenders are opportunistic and seek victims in public places. But an estimated 79-93% of sexual offenses are committed by a person known to the victim, raising questions about the effectiveness of these laws.

RESIDENCY RESTRICTIONS

Another form of sanction on repeat sex offenders is involuntary commitment to a mental health facility after the prison term has been completed. The leading case on this topic is Kansas v. Hendricks (1997).
As of 2011, 20 states and the federal government had enacted some form of civil proceedings for the involuntary commitment of sex offenders. Once such an individual is committed, release is rare.

INVOLUNTARY COMMITMENT

The Supreme Court’s rulings on the Sexually Violent Predator Act make it clear that selected individuals must have a “mental abnormality” or personality disorder that predisposes them to sexual violence and makes them oblivious to the prospect of further punishment.

INVOLUNTARY COMMITMENT

The U.S. Supreme Court has also said that individuals subjected to Sexually Violent Predator laws must be unable to control their behavior and thus, likely to commit future sexually violent crimes (Kansas v. Crane, 2002).

INVOLUNTARY COMMITMENT

The risk of sexual reoffending is typically determined via formal risk assessment conducted around the time the offender is scheduled to be released from prison.
They rely on measures of deviant sexual preferences and persistent antisocial behaviors.

INVOLUNTARY COMMITMENT

Unlike other offenders, sex offenders are often required to undergo treatment designed to “cure” them of their antisocial tendencies.
For example, offenders sentenced to prison are required to participate in offender treatment programs or give up hope of parole.

MANDATED TREATMENT FOR SEX OFFENDERS

Treatment may also include behavior modification techniques (e.g., pairing mild electric shock with deviant sexual responses).

Some treatment programs have effectively reduced sexual offending by suppressing offenders’ sex drive by administering hormones to reduce testosterone levels (chemical castration).

MANDATED TREATMENT FOR SEX OFFENDERS

In some states, repeat offenders are eligible for probation or parole only if they accept chemical castration.

MANDATED TREATMENT FOR SEX OFFENDERS

Citizens of the United States can be executed by the federal government and by the governments of 35 states.
Support for capital punishment may be waning. The American Bar Association has called for a nationwide moratorium on capital punishment and a few states have abolished or are considering the abolishment of the death penalty.