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Chapter 4: Sentencing: The Application of Punishment

Stohr, Corrections: The Essentials 4e

What Is Sentencing?

Sentence: Punitive penalty ordered by court after a defendant has been convicted.

Postconviction stage of the criminal justice process.

Justice: A moral concept of just or fair treatment.

Aristotle: “Treating equals and unequals unequally according to relevant differences.”

4.1 Explain how modern sentencing engages Aristotle’s notion of justice.

Postconviction stage of the criminal justice process, occurring about 30 days after.

Sentence: A punitive penalty ordered by the court after a defendant has been convicted of a crime either by a jury, by a judge, or in a plea bargain.

Implements one or more of the punishment philosophies:

Retribution.

Deterrence.

Incapacitation.

Rehabilitation.

Justice: A moral concept of just or fair treatment consisting of “treating equals equally and unequals unequally according to relevant differences.”

In terms of sentencing: those who have committed the same time and have similar histories should be treated the same.

Relevant differences should, strictly speaking, be limited to legally relevant factors (severity and criminal record), but often extralegal factors are brought into play.

Stohr, Corrections: The Essentials 4e

Types of Sentences: Indeterminate, Determinate, and Mandatory (1 of 4)

Indeterminate sentence: Consists of a range of years, to be determined by convict’s behavior.

Positivist philosophy of rehabilitation.

Aligns with medical model: Offenders are “sick” and require “treatment” or imprisonment.

Contributes to sentencing disparity.

4.2 Describe the different types of sentencing and their rationales.

Indeterminate sentence: A prison sentence consisting of a range of years to be determined by the convict’s behavior rather than one of a fixed number of years.

Previously much more common.

Fits the positivist rehabilitation philosophy: they can be released if they demonstrate they are turning their lives around.

Prevalent under the so-called medical model, which treats offenders as “sick” and imprisonment as “treatment.”

Contributes to sentencing disparity as some will know how to “game the system.”

Stohr, Corrections: The Essentials 4e

Types of Sentences: Indeterminate, Determinate, and Mandatory (2 of 4)

Truth-in-sentencing laws: Must serve at least 85% of sentence before release.

Determinate sentencing: Fixed number of years.

Maximum time set by legislature; recalls classical notions of retribution.

4.2 Describe the different types of sentencing and their rationales.

Truth-in-sentencing laws: Laws that require that there be a truthful, realistic connection between the sentences imposed on offenders and the time they actually serve.

Must serve at least 85% of a sentence before release.

Some states restricted good time credit/parole eligibility.

Determinate sentence: A prison sentence of a fixed number of years that must be served rather than a range.

Fits the classical notion: the purpose of punishment is to deter, and all who commit the same crime must receive a fixed sentence.

Stohr, Corrections: The Essentials 4e

Types of Sentences: Indeterminate, Determinate, and Mandatory (3 of 4)

Mandatory sentencing: Minimum time served is set by law, with no parole.

Concurrent sentencing: Separate sentences may be served at the same time.

Consecutive sentencing: Separate sentences must be served sequentially.

Which is required depends on various factors.

4.2 Describe the different types of sentencing and their rationales.

Mandatory sentencing: A prison sentence imposed for crimes for which probation is not an option, where the minimum time to be served is set by law.

May be instituted as a deterrent for a particular problem, such as drug trafficking.

Concurrent sentence: A sentence in which two separate sentences may be served at the same time.

Consecutive sentence: A sentence in which two or more sentences must be served sequentially.

Whether a sentence is concurrent or consecutive depends on:

The judge.

The seriousness of the crimes.

Criminal history.

Plea bargains.

Offender cooperation.

Some have suggested judges impose harsher sentences on offenders who “waste their time” by seeking a trial rather than accepting a plea.

Stohr, Corrections: The Essentials 4e

Types of Sentences: Indeterminate, Determinate, and Mandatory (4 of 4)

Habitual Offender Statutes

Habitual offender statutes: Mandate that an offender with a third felony conviction should be sentenced to life imprisonment.

“Three-strikes-and-you’re-out” statutes.

Life without parole (LWOP): Life sentence served without the possibility of parole.

Low recidivism compared to nonlifers.

4.2 Describe the different types of sentencing and their rationales.

Habitual Offender Statutes

Habitual offender statutes: Statutes mandating that offenders with third felony convictions be sentenced to life imprisonment regardless of the nature of the third felony.

“Three-strikes-and-you’re-out” statutes.

High financial cost, especially when applied to nonviolent offenders.

Life without parole (LWOP): A life sentence with the additional condition that the person never be allowed parole.

Also a costly sentence.

Usually imposed on those convicted of murder.

Habitual property offenders have also received similar sentences.

Recidivism: only one-fifth of “lifers” released after long stays (15–30 years) in prison were rearrested within 3 years. Two-thirds of nonlifers will reoffend within 3 years.

Stohr, Corrections: The Essentials 4e

Other Types of Sentences: Shock, Split, and Non-Custodial Sentences (1 of 2)

Shock probation: Exposes offender to prison for short period followed by probation.

Split sentences: Require person to serve brief periods of confinement in a county jail prior to probation placement.

Work release: Person may work but must return for nights and weekends.

Both types designed to show jail is undesirable.

4.3 Identify other sentencing options and how they are applied.

Other Types of Sentences: Shock, Split, and Noncustodial Sentences

Shock probation: A type of sentence aimed at shocking offenders into going straight by exposing them to the reality of prison life for a short period followed by probation.

Typically no more than 30 days of jail time.

Normally reserved for young, first-time offenders for relatively serious felonies.

Must be considered “redeemable.”

Split sentences: Sentences that require convicted persons to serve brief periods of confinement in a county jail prior to probation placement.

May be served all at once or spread over a certain period (i.e. weekends in jail for 1 year.)

Designed to show offenders jail is undesirable.

Work release: person leaves jail daily to work but returns for nights and weekends.

Stohr, Corrections: The Essentials 4e

Other Types of Sentences: Shock, Split, and Non-Custodial Sentences (2 of 2)

Victim impact statement: Allows person directly affected by crime to inform court of harm suffered.

Typically incorporated into presentence investigation reports.

Have been challenged as prejudicial and return to more conservative punitive stance.

Evidence of influence is overall ambiguous, but appears significantly influential in capital cases.

4.3 Identify other sentencing options and how they are applied.

Victim impact statement: A statement made by persons directly affected by a crime (or victims’ survivors in the case of murder) to inform the court of the personal and emotional harm they have suffered as a result of the defendant’s actions and, in some states, to make a sentencing recommendation. (Also called VISs).

Challenged as prejudicial and a return to a more conservative and punitive stance.

Statements can lead to sympathy for the victim and hostility to the defendant.

Evidence of their influence is overall ambiguous, but only seems significantly influential in capital cases where juries decide sentences.

May lead to resentment and dissatisfaction for victims and survivors that expected their statement to carry more weight.

Stohr, Corrections: The Essentials 4e

Problem-Solving Courts (1 of 4)

Problem-solving courts: Alternatives to traditional criminal courts for offenders with special needs.

Originated in the 1980s–1990s to address:

Growing incarceration rates and costs.

Realization that offenders required treatment and not imprisonment.

Inability of social services to meet needs.

Provide outcomes aimed at benefitting offenders, victims, and society.

4.4 Explain the role of problem-solving courts.

Problem-solving courts: Alternatives to traditional criminal courts that cannot adequately address the problems of offenders with special needs and other issues such as alcoholism and mental health problems.

Originated in the 1980s–1990s to address several issues:

Growing incarceration rates.

Financial cost of incarceration.

Realization that many offenders required treatment, not imprisonment.

Inability of social services to provide needed treatment.

Collaborative process of rehabilitation characterized by:

Focus on outcomes.

System change.

Judicial involvement.

Collaboration.

Non-traditional roles.

Screening and assessment.

Early identification of potential candidates.

Stohr, Corrections: The Essentials 4e

Problem-Solving Courts (2 of 4)

Drug Courts

Drug court: Special sentence for drug-related nonviolent offenders who must complete extensive treatment.

Offenders usually plead guilty.

Charges dismissed after successful treatment.

Most common form of problem-solving court.

4.4 Explain the role of problem-solving courts.

Stohr, Corrections: The Essentials 4e

Problem-Solving Courts (3 of 4)

Drug Courts

10-component model:

Integrated criminal justice and treatment.

Nonadversarial approach.

Candidates identified early and placed promptly.

Access to a continuum of rehab services.

Abstinence monitoring.

Multiagency coordinated strategy.

Ongoing judicial interaction with each participant.

Monitoring and evaluation.

Continuing interdisciplinary education.

Partnerships among various agencies and organizations.

Stohr, Corrections: The Essentials 4e

Problem-Solving Courts (4 of 4)

Drug Courts

Graduates show reduced recidivism.

Increased costs of treatment offset by lower risk of reoffending.

Reduce overall incarceration by 32%

4.4 Explain the role of problem-solving courts.

Stohr, Corrections: The Essentials 4e

Sentencing Disparity, Legitimate and Illegitimate (1 of 2)

Sentencing disparity: Wide variation in sentences received by different offenders.

Legitimate disparity: Due to crime seriousness or prior record.

Discriminatory disparity: For any other reason including race or gender.

Scholars disagree on the extent of discriminatory disparity.

Sentencing research is complex; multiple interacting variables obscure specifics of sentencing.

Age, gender, or disability of victim.

Conservative “law and order” jurisdictions.

4.5 Assess the issues surrounding sentencing disparity.

Sentencing Disparity, Legitimate and Illegitimate

Sentencing disparity: Wide variation in sentences received by different offenders that may be legitimate or discriminatory.

Legitimate disparity: due to crime seriousness or prior record.

Discriminatory: for any other reason including race or gender.

Scholars disagree on the presence and severity of racial discrimination, especially against African Americans.

Sentencing research is complicated, with multiple interacting variables obscuring specifics:

Victim characteristics: victims that are elderly, children, disabled, or female tend to lead to harsher sentences.

Political ideology: conservative “law and order” jurisdictions sentence more harshly across the board.

Stohr, Corrections: The Essentials 4e

Sentencing Disparity, Legitimate and Illegitimate (2 of 2)

Fair Sentencing Act of 2010: Increases the amount of crack cocaine subject to the 5-year minimum sentence from 5 to 28 grams.

Reduces the 100-to-1 ratio of crack cocaine to powdered cocaine.

New ratio is 18-to-1: sentence for 28 grams of crack = sentence for 500 grams of powder cocaine.

First Step Act: Signed by President Trump and seeks to reduce federal prison population, plus create rehabilitative mechanisms.

Makes Fair Sentencing Act retroactive for currently incarcerated offenders.

4.5 Assess the issues surrounding sentencing disparity.

Fair Sentencing Act of 2010: An act mandating that the amount of crack cocaine subject to the 5-year minimum sentence be increased from 5 to 28 grams, thereby reducing the 100-to-1 ratio to an 18-to-1 ratio (28 grams of crack gets as much time as 500 grams of powder cocaine).

First Step Act: An act signed by President Trump that seeks to improve criminal justice outcomes such as reducing the federal prison population (the act applies only to the federal system) and creating rehabilitative mechanisms to maintain public safety.

Makes the Fair Sentencing Act retroactive for currently incarcerated offenders who received longer sentences due to the sentencing disparity between crack and powder cocaine.

Stohr, Corrections: The Essentials 4e

Structuring Sentencing: The Presentence Investigation Report (1 of 3)

Presentence investigation report: Written by the probation officer to inform the judge about the crime and the defendant’s background, character, and criminal past.

Prevalence varies by state. May be:

Mandated for all or only some specific felonies.

Only at the request of a sentencing judge.

4.6 Identify the purpose of presentence reports and sentencing guidelines as well as the contentious issues surrounding them.

Presentence investigation report: Report written by the probation officer informing the judge of various aspects of the offense for which the defendant is being sentenced as well as providing information about the defendant’s background (educational, family, and employment history), character, and criminal history.

Stohr, Corrections: The Essentials 4e

Structuring Sentencing: The Presentence Investigation Report (2 of 3)

PSI Controversies

Generally considered a positive aid to individualized justice, but still has drawbacks.

Problems with reliability and objectivity.

Language to describe offender must remain carefully neutral.

Information must be cross-checked with other reliable sources.

4.6 Identify the purpose of presentence reports and sentencing guidelines as well as the contentious issues surrounding them.

Stohr, Corrections: The Essentials 4e

Structuring Sentencing: The Presentence Investigation Report (3 of 3)

PSI Controversies

Differing opinions on access to PSI.

16 states require full disclosure.

Other states require disclosure but erase personal identifying information.

PSIs are no longer written federally, signaling a move back to classical punishment.

4.6 Identify the purpose of presentence reports and sentencing guidelines as well as the contentious issues surrounding them.

Other states require disclosure but erase information that may lead to retaliation (like officer recommendations and negative comments from informants.)

Stohr, Corrections: The Essentials 4e

Structured Sentencing: Sentencing Guidelines (1 of 2)

Prior to 1984: Judges had near-unlimited discretion in sentencing.

United States Sentencing Commission: Charged with creating mandatory sentencing guidelines to control judicial discretion.

Sentencing guidelines: Scales for numerically computing sentences.

Based on crimes committed and criminal records.

Aristotle’s “relevant differences” can be calculated.

4.7 Explain the purpose and use of sentencing guidelines.

Prior to 1984, judges enjoyed nearly unlimited sentencing discretion as long as they stayed within statutory maximum penalties.

U.S. Sentencing Commission: A commission charged with creating mandatory sentencing guidelines to control judicial discretion.

Sentencing guidelines: Scales for numerically computing sentences that offenders should receive on the basis of the crimes they committed and on their criminal records.

Guidelines provide structured predictability to criminal sanctions by allowing Aristotle’s “relevant differences” to be computed algorithmically.

Stohr, Corrections: The Essentials 4e

Structured Sentencing: Sentencing Guidelines (2 of 2)

Outcomes of sentencing guidelines:

Reduction in sentencing disparity.

More uniform, consistent sentencing.

More open and understandable processes.

Decreased punishment for certain categories of offenses and increased punishment for others.

Aid in prioritizing and allocating correctional resources.

Provision of a rational basis for sentencing, which increases judicial accountability.

4.7 Explain the purpose and use of sentencing guidelines.

Stohr, Corrections: The Essentials 4e

The Future of Sentencing Guidelines (1 of 2)

Federal guidelines have gradually become advisory again.

Allows sentencing discrepancies to return to U.S. courtrooms.

Product of Supreme Court case United States v. Booker.

Stohr, Corrections: The Essentials 4e

The Future of Sentencing Guidelines (2 of 2)

United States v. Booker:

Judge factored additional information discovered outside of court in sentencing guidelines to sentence Freddie Booker to 30 years.

Booker argued his Sixth Amendment rights were violated; the 30-year sentence was given because the judge “found” facts outside the courtroom.

Judges can only legally “find” prior convictions to justify increased sentences.

Supreme Court remediated this discrepancy by making sentencing guidelines strictly advisory.