Assignment: Philosophical Orientations and Theories of Corrections

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© New York Daily News/New York Daily News/Getty

Images

3 The Purpose of Punishment and Sentencing Trends

Media Library

CHAPTER 3 Media Library

P R E M I U M V I D E OP R E M I U M V I D E O

C a r e e r V i d e oC a r e e r V i d e o

Peak career video 3.1: Court Administrator

Fe a t u r e V i d e oFe a t u r e V i d e o

Schram Personal Perspective video 3.1: Consequences

Schram Personal Perspective video 3.2: Deterrence Theory

S AG E N e w s C l i pS AG E N e w s C l i p

SAGE News Clip 3.1: Nevada Parole Law

SAGE News Clip 3.2: Tiger Woods’ Arrest

J O U R N A L A RT I C L EJ O U R N A L A RT I C L E

Journal Article 3.1: The predictive validity of the post-conviction risk assessment among federal offenders

Journal Article 3.2: Restorative jus- tice–Informed moral acquaintance: resolving the dual role problem in correctional and forensic practice

LEARNING OBJECTIVES

11 To understand the basic functioning of the sentencing process.

22 To understand the relationship between sentencing and the state of penal institutions.

33 To grasp the function and process of the presentence report.

44 To clearly understand the part that risk assessment plays in sentencing.

55 To be able to name and discuss four theories of sentencing.

66 To gain an understanding of restorative justice philosophy and practice.

77 To be aware of changing social factors and how they influence sentencing policy.

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Sentencing policies and practices exert a huge influence on the corrections system. They determine which individuals are managed through which correctional options. Sentencing and sentencing requirements, which are often dictated by law, affect the length of time that persons remain under correctional supervision and generally set the conditions for correctional social control. This chapter

describes how the sentencing process

works, reviews the underlying theories and ideologies that guide sentencing, examines how these theories influence practices in the correctional system, and looks at emerging sentencing trends.

How Sentencing Works After conviction in the criminal justice system, the court makes a determination on the appropriate penal response to the offense and the offender, which is called a sentence. The sentencing decision is determined by state laws and by the recommendations of prosecutors, defense attorneys, and the probation staff that conduct presentence investigations and suggest community supervision options to the court. In many cases, a parole board determines when a person will complete his or her incarceration and the terms of the release. Parole boards also decide whether the released prisoner will return to prison for violating the rules of parole. Incarcerated offenders may sometimes have their initial sentences shortened based on court orders that cap the size of prison or jail populations. Inmates also may earn time off their total sentences based on “good behavior” and participation in certain approved education or treatment programs. So the popular image of the judge rendering a sentence from the bench is partially true, but the sentencing process

is highly complex—made even more so by continually changing laws.

Feature Video Schram Personal Perspective video 3.1: Consequences

SAGE News Clip SAGE News Clip 3.1: Nevada Pa- role Law

Sentencing laws and practices vary widely among the 50 states and the federal system. In most cases, these laws specify

the expected penalty for various crimes. Often they define a wide range of punishments from which the court can select its preferred option. Typically, terms of incarceration are bounded by minimum and maximum limits. The actual term is set by a parole board at some time in the future. These are referred to as systems of indeterminate sentencing.

In 2015, 17 states and the District of Columbia primarily used a determinate

sentencing scheme,1 which defines in more exact terms the sentence that should be given to a defendant. There is usually an upper limit, a bottom limit, and a middle sentence. Judges can sometimes depart from those determinate sentences by stating certain aggravating or mitigating factors that call for a lessening or an increasing of the sentence, such as whether the defendant was under the domination of another person or whether he or she has an extensive criminal record. Some states and the federal court system have sentencing guidelines that use a variation of these defined sentencing options. In contrast to states in which the defined sentences appear in statutes, those with guidelines rely on a sentencing commission that decides on the range of sentencing options. More than 20 states and the federal government use sentencing commissions. The decisions of these commissions must be approved by the legislature but can be adopted via

passive consent—in other words, when the legislature allows the report of the commission to stand.

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Sentencing commissions were created in the 1970s to attempt to regulate the presumed disparity of sentences within states by individual judges. They were advocated for by those who argued that sentencing should be developed by experts in penology and reflect the latest research findings. Some states attempted to use guidelines to control their prison and jail populations. In practice, states with guidelines and the federal system are actually mixed models that have legislatively mandated sentences along with commission findings. Structured sentencing states use a grid that considers the severity of the current offense and the length and content of the defendant’s prior criminal record.

As complicated as these sentencing schemes appear, they became even more muddled after a series of U.S. Supreme Court decisions (U.S. v. Booker; U.S. v. Fan Fan) that required that the facts used in “structured sentencing systems” be proved before a jury or be agreed to through a

plea agreement.2 These cases resulted in increased judicial discretion, even within highly structured sentencing schemes.

Most important, sentencing remains an “insider’s game,” little understood by victims, offenders, other criminal justice actors, the media, or the public at large. Most governors and legislators have only very limited knowledge as to how the sentencing system functions. Prosecutors exert a huge influence on sentencing policies because elected officials assume that the prosecutors are experts in the process. The expertise of the defense bar is sometimes dismissed because it is presumed to be a biased advocacy role. The role of corrections officials as experts in sentencing has been diminished over time. Sentencing, like most other aspects of criminal justice policy, has become increasingly politicized.

It is common that, after a horrific crime is committed by a formerly convicted person, elected officials will rail against the leniency or unfairness of the sentencing process, which may have been, in fact, carried out to the letter of the law.

Some in the defense bar are now presenting their own informal presentence reports and retaining experts specifically to prepare these reports. The defense bar assumes that if its reports are more thorough and better presented than the reports submitted by the probation department, the judge might lean toward the defense’s sentencing recommendations. This is especially true if

the sentencing plan by the defense is very detailed and includes a plan for paying for needed services such as drug treatment. However, there is a significant cost for a privately prepared presentence report; only convicted persons with private attorneys and those who can afford to pay for them are likely to benefit from this strategy. The preparation of a presentence report for the court is central to the sentencing process. Although convicted persons have some ability to challenge the findings and recommendations of these reports, the legal deck is stacked against the convicted persons.

The Presentence Report Probation staff prepare presentence reports to present the convicted person’s pertinent information to the sentencing judge. Probation staff have wide latitude in how these reports are organized, the specific content, the level of detail, and the sentencing recommendations. To begin with, the report examines the severity of the current offense. The probation officer reviews police reports and statements made by the defendant to law enforcement and prosecutors, as well as any prior contacts the defendant has had with the police, the courts, or the corrections system. The presentence report notes any outstanding arrests, court (bench) warrants, or immigration holds for the

individual, including those from other jurisdictions.

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Another important part of the report has to do with the likelihood that the defendant will reoffend in the future, as measured by a risk assessment instru- ment (RAI). The RAI helps to evaluate risk level by ranking offense severity and offense history, among other factors. A presentence investigation may rely on hearsay evidence, and the defendant does not have the right to confront his or her accusers, as he or she would have in criminal court.

Presentence reports cover significant safety factors, such as whether the defendant allegedly used a weapon as part of the crime, and medical reports about the harm caused to victims. Increasingly, presentence reports include statements by the victim(s) about the emotional, physical, and economic impacts of the crime on the victim’s life. Typically, the probation officer will conduct an in-depth interview with the defendant to determine whether he or she feels responsibility or remorse for having committed the crime. The presentence report may also determine whether the defendant has any insight into the factors that led to the crime and identify the defendant’s potential amenability for rehabilitation.

The probation officer could—but is not always required to—interview the defendant’s family members, neighbors, and employers. These interviews may support the probationer’s potential for rehabilitation and help to uncover the sorts of community support available to an individual. For example, an employer might suggest that a probationer is an important and very positive contributor to the workplace—that incarceration of the defendant would create a hardship for the employer. Some have argued that a similar evaluation be made on behalf of the children of a convicted person, as children often suffer due to the absence of their parent. The courts have considered these arguments but have typically not given parental responsibilities the same weight as employment issues.

Presentence reports also explore the significance of the probation client’s physical and mental health issues. Alcohol and drug dependency are sometimes presented as mitigating factors in the offense but may also be considered impediments to rehabilitation. Clients may be required to submit to drug testing as part of the postconviction process. Similarly, the presentence report can cover mental health issues, so long as state and federal laws covering medical confidentiality and the doctor–patient relationship are not violated. The client, with advice of counsel, may voluntarily

offer up this information. Presentence reports also include information about developmental and physical disabilities.

Another key area addressed in presentence reports is the convicted person’s social relationships (both positive and negative). The probation officer must determine whether the client associates with antisocial peers or groups. Here again, the standards for determining these issues and how to interpret them for the court are not well defined in law. Thus, probation officers must rely heavily on their “soft skills” and experience to ascertain the realities of the situation.

There is a wide range in the quality of presentence investigations, how probation officers use or ignore the body of information that they collect, and how this information is actually used by the court. Presentence reports often contain the judgments of the probation staff on the person’s character and personality. There may also be speculation—informed by professional experience—by the probation officer about the motives for the crime. As noted earlier, sentences may be determined largely by the results of plea bargains or by statutes that mandate the penalties for various crimes. This means that, although presentence reports may be used by correctional personnel, these analyses may in the end play a small role in the actual determinate sentencing

decision. However, in instances in which judges can exercise their own discretion, the opinions stated in the presentence report will be very important. Research suggests that judges follow the recommendations of the presentence reports in over 90% of the decisions that they make. This high level of agreement between the bench and probation recommendations may also be a reflection of probation officers’ anticipation of judicial values and expectations. This suggests that sentencing reform efforts must go beyond judicial training and reach out to those preparing the presentence reports.

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© iStockphoto.com/Deborah Cheramie

̖ What is an appropriate balance between judges and prosecutors in

discretion over sentencing?

Risk and Needs Assessment

Concerns about the uneven quality of presentence reports and attention to precisely allocating scarce resources where they can have the most positive effect have led to the use of very structured risk and needs assessment tools in the sentencing process. To be reliable, these tools should be validated through empirical studies. Many departments have made a concerted effort to develop tools appropriate for their specific population. The key is to structure the presentence report as a series of factors that are linked by research evidence to the likelihood that the defendant will reoffend. These tools contain a limited set of factors that are given a weighted numerical value. The scores are then related to “presumptive” sentences. The probation department or the court may not follow these recommendations, but there is usually a process that requires probation officers to state their reasons to the courts and justify an override or departure from the recommended sanction.

These assessment tools enhance the risk and needs profile more than using professional judgment alone. Advancements will no doubt build on existing models and research from the field, factoring in the particular circumstances and priorities of local jurisdictions.

There are two types of assessments. The first type measures static factors such as age, criminal background, and current offense type. These are usually done fairly quickly and are used as triage, to conduct the first sorting of defendants into broad risk categories. The second type assesses more dynamic factors. These assessments usually involve a much longer set of questions and measure factors that have to do with the defendant’s tendency to commit crime. These are referred to as criminogenic needs and focus on changeable factors such as antisocial behavior, personality traits, and associates; family and marital status; substance abuse status; and whether the defendant is employed or in school.

Risk factors are largely static in nature and are based on the type and severity of the offense leading to the current incarceration, prior offenses and system involvement, and behavioral and mental health history.

Criminogenic needs are also correlated with a likelihood of reoffending but are generally of a dynamic or changeable nature. They may include antisocial behavior; antisocial personality traits, attitudes, or peers; family and marital dysfunction; substance abuse; low achievement or stability in school and employment; and lack of prosocial leisure

activities.3

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Noncriminogenic needs are related to criminogenic needs but have not been found to directly correlate to reoffending. They include anxiety and other forms of emotional distress, and low self-esteem or ambition. Major mental health problems such as schizophrenia and bipolar disorder and a history of victimization are also in this category. Although they may be valuable in understanding how parole officers and other providers may best interact with the parolee, it can be a waste of time and resources and generally detrimental to excessive discussion or management of these factors. Although these issues may need to be addressed to facilitate other work, reducing criminogenic needs should be the central goal of probation supervision and programming.

The implementation of these more formalized risk and needs screening tools is still relatively new, but their great promise is to reduce arbitrary and capricious decision making in the sentencing process.

Sentencing Theories The evolution of correctional systems is deeply rooted in social and economic transformations. The explanations or

rationales for penal systems have also changed over time. The theories are the cultural supports behind methods of punishment. They are embedded in law and political discourse and reflect powerful cultural and religious doctrines. This is the language through which the changes in corrections are justified. Major penal ideologies should be reviewed and evaluated in light of existing research and criminal justice practices. These theories may play a role in reforms of correctional systems.

Career Video Peak career video 3.1: Court Administrator

It is important to note that penal systems often incorporate multiple ideologies. Although a single theory may dominate a specific historical period, all of these theories of penal systems exert an influence. Further, different parts of the criminal justice system may embrace

differing or competing ideologies. Media and political perspectives are not always aligned with ideologies embraced by the public at large. For example, many public opinion polls suggest that the public supports approaches to corrections that are grounded in ideals of rehabilitation and treatment, especially for less serious

offenders.4 However, the dominant political rhetoric is still focused on ideologies of deterrence and retributive justice. Though political leaders can help shape the broad outlines of public thinking on corrections, influence can work in the opposite direction. Evolving public views can sometimes be reflected in changes in official policies and practices, or at least the attempt of political leaders to accommodate, or appear to accommodate, altered public viewpoints.

The writings of academics and public intellectuals may also play a role in shifting penal philosophies. Most often the work of the research community is very selectively quoted to justify and support various correctional philosophies; political leaders use research results to support their claims to objectivity and fairness. The viewpoints of correctional leaders may also help shape penal theories.

In the past, the writings and speeches of leading correctional administrators were influential in the public conversation on corrections. In addition, professional

associations such as the American Correctional Association and the American Probation and Parole Association played very active roles in these debates. Some have observed that this style of correctional leadership has been greatly diminished. For example, noted penologist Allen Breed has argued that contemporary corrections is devoid of real leaders. The often articulate and visionary administrators of the past have generally been replaced by skilled managers who know how to follow the orders of political leaders and who are

averse to risk.5 Professional correctional groups have become far more modest in their efforts to reform correctional systems, relying more on attempts to institute minimal operational standards. Moreover, the professional groups have become heavily dependent on businesses that market their goods and services to correctional agencies. Professional meetings have essentially become trade shows, relegating discussions about policy and programmatic concerns to little more than window-dressing status. Another important source of correctional philosophy and potential reforms has been nonprofit advocacy groups and think tanks such as the Vera Institute of Justice and the National Council on Crime and Delinquency. These and other nonprofit groups are financially supported by private philanthropies that wish to advance certain approaches to correctional policy.

Such groups have generally shaped correctional theories far more than university-based researchers.

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In the following sections, we review the major penal philosophies that have guided the history of sentencing and punishment and that continue to form the intellectual legacy of contemporary corrections.

Retributive Justice

“An eye for an eye”—this simple formulation is at the core of many of the world’s belief systems. The underlying ideology is that punishment is society’s price for the harm done by lawbreakers. Retribution is assumed to be a normal human response to victimization of individuals or social groups. Retributive justice is presumed to satisfy basic human instincts to exact a price from those who offend us or our social group. It assumes that the criminal justice system is in place to punish rather than rehabilitate offenders. Retribution is a powerful communication method that allows social groups to define their core values, teaching all observers about what is valued and what violates basic cultural tenets.

© iStockphoto.com/forgiss

̖ Some people want the issue of punishment to be a simple matter.

They often cite the Bible’s Old

Testament to help make the case that

simplicity is not only possible but

desirable.

A central issue in the ideology of retributive justice is the proper calibration of penalties. Wildly excessive punishments might be perceived as arbitrary and cruel. Even under slavery, states enacted slave codes that attempted to regulate what owners could do to their human chattel. The slave codes recognized that excessive cruelty could lead to rebellion among the slaves. Likewise, penal philosophers, especially writers such as Cesare Beccaria and Jeremy Bentham, advocated for a more nuanced and calibrated penal system that was tied to the severity of the offense. These Enlightenment thinkers also argued for a measured penal response, fearing that overly harsh punishments would lead juries to acquit otherwise guilty defendants or would foment social

revolutions. Unbounded retributive justice is consistent with a totalitarian political system that is enforced by the military. An unrestrained retributive penal system was not consistent with emerging republican political traditions. For example, the founders of the American political tradition rejected many aspects of the British legal system, which was associated with colonial oppression.

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© iStock.com/fstop123

̖ Our court system is based on ideals of fairness and balance, but what

constitutes balance or justice? For

example, who should determine

whether a punishment fits the crime?

Exacting revenge is a powerful human urge. It resonates with many traditional religious doctrines and is expressed in sacred texts such as the Bible and the Koran. It is still at the core of the rhetoric of modern politicians who try to appeal to the mass of voters by emphasizing harsh penalties. “Do the crime, do the time.” Further, retributive justice reflects public attitudes of resentment and fear of serious lawbreakers.

In his influential book Doing Justice, British criminologist Andrew Von Hirsch attempted to resurrect the Enlightenment tradition of limiting retributive justice

through the concept of “just deserts.”6 He articulated the view that excessive punishment undercuts the legitimacy of the sentencing system. He further argued that other penal philosophies, such as rehabilitation, actually pose serious dangers to human liberty. Von Hirsch imagined a precise, even mathematical calculation of the right penalty based on an objective analysis of the harm caused by the offender to the victim or the community in general. This theory of

sentencing received strong acceptance in jurisprudential and criminological circles and was also expressed by others as the philosophic foundation of the movement toward determinate or fixed penalties in

sentencing.7 Just deserts appeared as a potential antidote to unchecked state power that was observed by several criminologists and corrections

practitioners.8 Von Hirsch did concede that a potential problem in his theory of punishment was in actually establishing the “anchor point” to ground a whole system of penalties. Without a sound foundation, the scale of the system of punishment was easily corrupted. As the criminal justice policy developments of the 1980s and 1990s unfolded, this “fatal flaw” in just deserts theory was revealed as policymakers competed to show how tough they could be on crime. Penalties escalated throughout this period, driven by the political rhetoric of retributive justice and resulting in the largest incarcerated population on earth.

Deterrence

Deterrence is related to retributive justice, but it is a very different justification for penal practice. This theory of punishment is perhaps the most widely accepted in Western criminal law systems. It rests on the assumption that the goal of punishment is not reactive but rather preventive. Punishment is intended to

head off future criminal behavior. This philosophy assumes that humans are entirely rational creatures who calculate the costs and benefits of criminal misconduct. Deterrence theory rests on the belief in an economic model of how individuals and groups make decisions to obey or break the law.

Feature Video Schram Personal Perspective video 3.2: Deterrence Theory

Deterrence can operate at both an individual and a societal level. Individual deterrence refers to the idea that a specific potential offender will avoid criminal acts because of the odds that he or she will be captured and punished. This idea is prominent in efforts to head off repeat offending, or recidivism. General deterrence refers to a broader message to the community that certain acts will likely result in adverse consequences for anyone committing them. General deterrence is

assumed to be the force that stops the average person from breaking the law.

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The logic of deterrence consists of a calculation of the necessary penalties to shift the potential offender’s cost–benefit ratio in favor of law-abiding behavior. Although it is easy to imagine how the economics of punishment operates in the sphere of financial and business crimes, it is less clear how the logic of deterrence operates in situations that are highly emotional, impetuous, or unpremeditated.

A number of studies have attempted to demonstrate or discredit the deterrent effects of tougher penalties, especially capital punishment. In general, these analyses show little evidence for a strong deterrent effect, except for some white- collar crimes, traffic violations, and crimes committed by middle-class lawbreakers. Research on the deterrent impact on crimes such as domestic violence and drunk driving suggests that lower-class and unemployed defendants show little or no sensitivity to deterrence. As folk singer Bob Dylan wrote, “When you ain’t got nothin’, you got nothin’ to lose.”

Research by Zimring and others also suggests that deterrent effects are influenced not just by the severity of penalties but also by the celerity of

punishment (how quickly the punishment follows the crime) and the offender’s

probability of being apprehended.9 You won’t be punished if you don’t get caught. Deterrence is further weakened by the offender’s mental capacity to link current actions with future consequences. This means that deterrence is generally less effective for youth and for those with mental impairments—those who have difficulty connecting action and consequence. Further, there are also nonmonetary rewards for criminal behavior, such as prestige in criminal subcultures, friendships among “thieves,” and other social and economic pressures to break the law. Chronic offenders, including those in prison, often proclaim that they are too smart to get apprehended, even if their present incarceration proves them wrong. All these forces tend to weaken the argument that tougher penalties deter crime.

Regarding general deterrence, it is not clear that potential offenders are closely tuned in to marginal increases or decreases in penalties. We may intend to send messages to offenders about the increased costs of committing crime, but the messages may not be received. Further, there is ample evidence that marginal reductions in punishment, such as accelerated release of inmates, have not had any measurable negative effect on

recidivism or community crime rates.10 In

other words, releasing low-level offenders from prison slightly early does not result in a crime increase.

Still, the logic of deterrence is a core of Anglo-American jurisprudence. Lawmakers believe in deterrence despite ample evidence of its ineffectiveness. Manipulating penalties to try to reduce undesirable behavior is a tactic heavily relied on in the political arena. Unfortunately, deterrence is overrated as a mechanism for controlling or changing a wide range of human behavior.

Rehabilitation

Although originally grounded in religious ideology, including the Catholic Church or the emerging Protestant denominations such as the Religious Society of Friends (Quakers), the modern secular concept of rehabilitation emerged during the late 19th and early 20th centuries. The core idea was that the corrections system could engage inmates in activities including work, education, religion, counseling, and other therapeutic interventions that could supposedly transform offenders into law- abiding citizens. The new scientific disciplines of medicine, psychology, and psychiatry were harnessed by advocates of offender rehabilitation to accomplish this goal. Practitioners were developing a technology to fix broken souls and to return them to productive lives.

Journal Article Journal Article 3.1: The predictive va- lidity of the post-conviction risk as- sessment among federal offenders CLICK TO SHOW

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© Brian Vander Brug/Los Angeles Times/Getty

Images

̖ Most people don’t plan to get caught committing a crime. Public awareness

of law enforcement practice is basic to

deterrence.

Consistent with the rehabilitative ideal was the concept of indeterminate sentencing. Presumed experts in human behavior would judge when a prisoner’s behavior had improved enough to indicate true reform and warranted release. Incarceration was viewed as part of an overall system of graduated sanctions to control offenders that also included

community supervision. In the 1920s, some states—Illinois was one—developed predictive tools designed to mathematically compute the odds that a potential parolee would succeed upon

release.11 Prison systems sponsored research on inmates to identify the key elements of effective rehabilitative approaches. The American Correctional Association and most leading corrections practitioners of the day embraced rehabilitation as a major goal of the penal system.

The concept of rehabilitation advanced most rapidly with juvenile offenders, who were thought to be more amenable to reform. The jurisprudence of the juvenile court was based on rehabilitation. In adult corrections, rehabilitation was based more on rhetoric than on actual practices, where only minimal investments were made in education and counseling programs. Inmate labor or enforced idleness still dominated the daily routines of prisons. Parole boards were dominated by political appointees with a strong bias toward law enforcement. Few parole boards included experts in the behavioral sciences or social work. Release decisions were heavily influenced by political considerations or outright bribery by influential inmates or their advocates. The idea of rehabilitation was popular in academic circles, law reform groups, and professional associations.

The fiction that rehabilitation was actually occurring in prisons provided a legal rationale for a hands-off approach by the appellate courts when due process and equal protection issues were raised about sentencing or correctional and parole decision making. It was argued that excessive formality and regulation guided by the U.S. Constitution would interfere with the rehabilitative process.

During the 1960s, there was mounting skepticism from across the political spectrum. Critics of rehabilitation argued that (a) there was scant evidence that rehabilitation actually succeeded very often, (b) rehabilitation actually was an excuse for “coddling criminals,” and (c) rehabilitation programs could trample on the rights of convicted felons or were being applied in a racially discriminatory manner. Such views came from very different political and philosophic quarters, and their confluence led to a dramatic decline in the support for rehabilitation as a legitimate goal of sentencing and the corrections systems.

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© AP Photo/Amy Sancetta

̖ Under the guidance of corrections officers, rehabilitating inmates

participate in a dog training class at

the Mansfield Correctional Institution

in Mansfield.

The work of Robert Martinson and his colleagues suggested that there was very little evidence showing the positive value of most rehabilitation programs to reduce

reoffending.12 His influential essay “What Works?” fit perfectly with an emerging political consensus that favored deterrence and incapacitation as the dominant rationales for sentencing and corrections systems. Some years later, Martinson recanted his views that nothing worked, although his reversal was not given nearly as much attention in the media or political circles as the first

essay.13 Other critics suggested that

rehabilitation programs actually made offenders worse by sticking them with negative labels that could not be

overcome.14 New York University sociologist Edwin Schur even coined the phrase “radical non-intervention,” suggesting that the state should intervene

(i.e., rehabilitate) as little as possible.15

Liberal critics of the justice system decried the lack of due process and equal protection afforded convicted felons under the banner of rehabilitation. The famous U.S. Supreme Court decision In re Gault described the treatment approach of the juvenile court as a paternalistic

“kangaroo court.”16 Civil libertarians expressed concerns that prisoners were held for too long and for arbitrary and capricious reasons.

More conservative observers disliked rehabilitation and thought of it as “soft on crime.” Their ideology did not include the idea that human beings could be perfected through education and other social interventions. They favored harsh penalties instead.

Beginning in the 1980s, many states revised their penal codes to emphasize punishment as the primary goal of the corrections system, to restrict the discretionary release of prisoners, to lengthen terms of incarceration, and to

make prison conditions more unpleasant to offenders. The rehabilitative ideal had lost its political currency.

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The most direct result of the demise of the ideology of rehabilitation was an extraordinary growth in the numbers and rates of people who were put in prisons and jails. Prison and jail conditions deteriorated, and education, job training, and counseling programs all but disappeared.

But “what goes in must come out.” The growth of incarceration led to a commensurate number of prisoners who were eventually released from custody. All but the very small fraction of inmates who were “lifers” were freed shortly thereafter. Jeremy Travis illustrated the social and community consequences of a vast number of ex-prisoners who were

returning home.17 Many of these returning inmates were worse off after the prison experience, having high rates of substance abuse and mental illness and very poor life skills. An emerging focus on reentry has led to some limited federal legislation such as the Second Chance Act, signaling a beginning, however limited, to investments in rehabilitation programs for prisoners and for those on parole. Rehabilitation is making a political comeback in terms of voter attitudes and the perspectives of

correctional practitioners.18

Incapacitation

The incapacitation theory of punishment suggests that the principal goal of the penal system is to separate offenders from the community. It does not assume that punishment makes offenders more or less criminal; rather, it prevents them from victimizing people outside of prison. Crimes occurring inside of prison and jails are not accounted for in this calculation.

Incapacitation rests on the assumption that a small number of offenders commit the vast majority of serious crimes. Isolating them behind bars presumably subtracts those crimes from the overall crime rate. Some observers such as Edwin Zedlewski asserted that the savings produced by the reduction in crime more than made up for the cost of

incarceration.19 Zedlewski’s calculations suggested that each year of additional prison time per prisoner saved the taxpayers $430,000 in averted victim costs and reduced criminal justice expenditures by not having to rearrest, convict, and incarcerate those who had been let out of prisons and jails. Others such as DiIulio and Reynolds presented somewhat lower cost-savings estimates of incapacitation, but still asserted that “it was cheaper to

keep ’em.”20 According to these observers,

Revising an LWOP Sentence

Received as a Juvenile

even if you didn’t believe in deterrent effects or the efficacy of rehabilitation, keeping criminals away from communities was smart public policy. This view was enthusiastically embraced by Presidents Ronald Reagan and George H. W. Bush.

© AP Photo/Rich Pedroncelli, File

̖ Cycles of imprisonment, release, reoffending, and reincarceration are

sometimes called the revolving door

of justice. The question of

rehabilitation centers on the dilemma

of recidivism, its causes, and its

remedies.

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When J. G. was 16 years old, he and two fellow gang members attempted a carjacking that resulted in the murder of a 31-year-old mother of two small children. J. G.’s two codefendants, who were 18 years old at the time of the crime, pled guilty to voluntary manslaughter, and each received a 10- year prison sentence. Hoping for leniency because he was not the shooter and did not initiate the carjacking, J. G. chose to go to trial. He was convicted and sentenced to life without the possibility of parole (LWOP) because “he was a co- conspirator in a felony that resulted in a death.” He was too young to receive the death penalty under state law. State juvenile authorities conducted a diagnostic assessment of J. G. and recommended that he be sent to a state juvenile facility rather than an adult prison. The judge ignored this assessment and decided to make an example out of the case to stop gang behavior among youth.

J. G. has already spent 22 years in state maximum-security prisons. While incarcerated, J. G. has earned his high school degree and certifications in a number of trades. He has no history of mental health issues, nor has he been involved in prison gang activities. He has received only four disciplinary charges over his

two decades in high-security prisons, and none of these were for violent crimes or weapons offenses. His file contains several notations by corrections officers suggesting that J. G. is very cooperative and a good worker.

Under a newly enacted law, J. G. is entitled to petition the original sentencing court for a change of his sentence to life with the possibility of parole. If the petition were granted by the court, J. G. would then have to request a review by the parole board for his eventual release.

YOU DECIDE: C o n s i d e r i n gC o n s i d e r i n g t h e r e s e a r c h o n t h e b ra i nt h e r e s e a r c h o n t h e b ra i n d eve l o p m e n t o f a d o l e s c e n t s ,d eve l o p m e n t o f a d o l e s c e n t s , s h o u l d t h e c o u r t g ra n t J. G .’ ss h o u l d t h e c o u r t g ra n t J. G .’ s p e t i t i o n a n d g i ve h i m a np e t i t i o n a n d g i ve h i m a n o p p o r t u n i t y f o r r e l e a s e by t h eo p p o r t u n i t y f o r r e l e a s e by t h e p a r o l e b o a r d ?p a r o l e b o a r d ?

The research and logic of Zedlewski and others has been critiqued and largely discredited by leading criminologists such

as Zimring, Hawkins, and Blumstein.21

Support for incapacitation as a theory of penology declined in influence in academic circles but still has great influence in the political world. There is a certain apparent

logic that if people are behind bars, they can’t hurt us.

The idea of incapacitation rests on the assumption that there are a very small number of “high-rate” offenders. Further, it is clear that even “high-rate” offenders slow down with age and commit fewer crimes. As incarceration rates have increased over the decades, the marginal payoff of incapacitation is less, because we are extending confinement to lower-level offenders.

Greenwood, from the RAND Corporation, attempted to figure out how to maximize the effect of incapacitation though “selective incapacitation”—doing a better job at identifying the frequent offenders at the peak of their crime-committing

years.22 Despite early claims, ultimately the RAND researchers could not successfully predict who would be the most frequent repeat offenders. Researchers such as Haapanen found that

selective incapacitation was an illusion.23

Eventually, even Greenwood rejected selective incapacitation and has spent most of his later years researching effective rehabilitation programs.

Theories of Restorative Justice and Reintegrative Shaming

Other theories of punishment, such as restorative justice and reintegrative shaming, shift the focus onto transforming the harm done to victims and to the community and leaving them more committed and integrated than before. Crime is conceptualized as an injury that must be repaired. The offender is required to acknowledge his or her accountability to the aggrieved victims, express remorse, and engage in positive activities to mitigate the harm to individual victims and

the community at large.24

Journal Article Journal Article 3.2: Restorative justice– Informed moral acquaintance: resolv- ing the dual role problem in correction- al and forensic practice CLICK TO SHOW

These theories propose that justice is best served when an offender is confronted by community peers and agrees to make restitution and perform a service to the community. Restorative justice is not considered to be “pro-victim” or “pro- offender.”

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Reintegrative shaming is a version of restorative justice. Originally articulated by Australian criminologist John Braithwaite, reintegrative shaming

emphasizes the power of public condemnation to change offender

behavior and heal the victim’s injury.25

Braithwaite contends that some sanctions label offenders and others, such as incarceration, isolate the criminal from the community and promote more lawbreaking behavior. A different concept of sanctioning can provide pathways back to acceptance by the community.

Both of these ideologies have commonalities with basic religious concepts about how a transgressor can earn redemption and forgiveness. There is a focus on direct relationships between the criminal and his or her victims. One version of this philosophy, victim–offender reconciliation, asserts that neither the offender nor the victim can resolve the conflict without a personal acknowledgment of remorse by the offender, tangible actions to help the victim, and the victim eventually offering

forgiveness.26

Advocates of restorative justice often refer to justice traditions in native populations in the Americas and in Australia, referring to ways in which small and rural communities deal with crime problems.

Examples of programs that are consistent with reintegrative shaming are peer courts designed for juvenile offenders; David

Kennedy’s Operation Ceasefire model, which employs community representatives to verbally condemn the behavior of serious offenders; and community circles where groups of neighbors meet with offenders and negotiate the terms of victim compensation and community service. These programs set clear boundaries and define the behavior that must stop. The neighborhood circle is equally clear that the community will be available to help the offender with his or her social or educational needs.

These victim-focused penal philosophies implicitly, and sometimes explicitly, reject the notion that incarceration is a useful tool for victims and offenders. Although restorative models are being included in some prisons and jails, it is more typical to see these philosophies implemented in di- version programs, in lieu of criminal justice processing, or as adjuncts to probation.

To date, restorative models and reintegrative shaming have been used with less serious offenders. Some argue that middle-class or more privileged individuals are given access to these alternatives, while the less privileged are not. There is only minimal research evidence so far that these alternative philosophies can reduce offender recidivism or reduce victim suffering (see Chapter 5).

© iStockphoto.com/Alina555

̖ The public wants accountability, and justly so. But in scenarios like plea

bargaining and restorative justice, can

the public accept the idea that

negotiation may lead to concessions

by both offenders and victims?

Contemporary Movements in Sentencing Laws and Policies Most of the modern American sentencing system was established during the first part of the 20th century. This is when most states created laws governing probation and parole. Prisons and jails were built in the 19th century throughout the nation, but after the Civil War, many southern correctional systems were in shambles.

SAGE News Clip SAGE News Clip 3.2: Tiger Woods’

© iStockphoto.com/EdStock

̖ Involving the community in implementing justice is one way to

help restore wholeness to victims.

Arrest

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The dominant model that used broad ranges of sentences from judges, with parole boards making the final determination, was in place for almost the

entire 20th century. Over time, probation, which began as an informal and voluntary practice, was formalized and operated by

state agencies.27 A separate court system for children evolved in the first decades of the 20th century.

This structure and process of sentencing was largely unchanged for over 75 years. But, beginning in the late 1970s, the winds of change in sentencing grew very strong. First, there was a movement toward more structured sentencing systems such as California’s determinate sentencing law, Minnesota’s sentencing guidelines, and the federal sentencing guidelines. Many states and the federal government have sentencing guidelines commissions that review and regulate sentencing practices. These groups are supported by research staff and meet regularly to review sentencing practices and propose improvements. Advocates of reducing prison crowding point to Virginia, North Carolina, Washington, and Minnesota, where sentencing guidelines have actually increased the time served by violent offenders while they have diverted more minor offenders to probation or have reduced the time served for property offenses, minor drug offenses, and other less serious crimes.

The impetus to rationalize and create fairness in sentencing, however, was quickly frustrated by other legislative

© Joe Raedle / Getty Images News / Getty Images

̖ A police officer tests a motorist for impairment of her ability to drive from

substances.

actions that mandated increased penalties for specific crimes. Sentencing commissions must try to harmonize the political positions of elected legislative bodies with their own legal definitions of the state penalty structure.

In the 1980s, the political fad was “mandatory” incarceration—a guaranteed sentence to prison. In California, the buzz phrase was “Use a gun, go to prison.” This warning was soon expanded to a number of laws that required incarceration for residential burglaries, carjacking, assaults, DUIs, and an ever-increasing number of drug crimes. The inflammatory rhetoric connected to the “War on Drugs” encouraged many legislators to embrace mandatory incarceration for even minor possession of controlled substances, including marijuana. The net effect of this

political pressure was to radically restrict the kinds of offenders who could be referred to probation supervision. It was argued that probation was largely ineffective and represented insufficient punishment. Budgets for probation agencies were reduced in many locales. In response, some probation leaders tried to portray their programs as tough penalties, downplaying treatment or rehabilitation services. Many probation agencies permitted officers to carry weapons and wear uniforms that looked like those of police SWAT units. Departments tried to promote the notion that probation officers were just like other cops.

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The trend toward mandatory incarceration was coupled with new laws that set mandatory minimum terms for particular crimes. These sentencing reforms fundamentally changed the practice of sentencing in indeterminate sentencing states and altered the impact of sentencing commissions. Mandatory minimums curtailed the ability of judges to consider traditional mitigating factors. These laws were touted as having a strong deterrent impact on potential criminals. Proponents also argued that mandatory constraints would limit the power of liberal and activist judges to make their own decisions. Courts were required to punish according to penal code sections, not the

circumstances of individuals.

This development greatly increased the power of prosecutors in the sentencing process by allowing them broad authority to decide what charges to press. The plea bargaining process was also a key, as offenders agreed to plead guilty to reduce the charges against them. Defendants who agreed to cooperate with police and who testified against others might get departures from the mandatory sentencing provisions. In practice, both mandatory incarceration and mandatory terms did not necessarily bring certainty and predictability to the sentencing process. For example, prosecutors might choose to ignore the presence of a gun during a crime or decrease the amount of drugs found on the offender.

During the 1990s, there was an avalanche of new sentencing laws, almost all of which were designed to increase penalties for a wide range of crimes. Legislators sometimes referred to each of these as “the crime of the week.” After a highly publicized crime, legislators would rush to prove their crime-fighting credentials by sponsoring bills that created mandates either to send offenders to prison or to raise the mandatory minimum terms of incarceration. Interest groups such as victim advocates, prison guards’ unions, and operators of private prisons joined in these lobbying efforts. These new laws

contributed to a rapid growth in the number of convicted persons who were sent to prisons and the length of time that they served. Rarely, if ever, did legislatures attempt to quantify the impact of new laws on the prison population or to project the need for new prison beds. Indeed, during this period of rapid growth in the prison population, voters consistently defeated measures to raise funding for new prisons. The politicians found ways of getting around that obstacle. As in other American wars, they kept the new battle against crime or drugs “off the books” by finding less overt means of expanding corrections. In so doing, elected officials did not need to account to the public for the huge growth in government spending that they were creating.

However, they neglected to foresee the consequences of overcrowding the prisons with people who were getting very little in the way of services; lawsuits on unconstitutional prison conditions began to surface. Many elected officials did not imagine that even greater costs to the taxpayer would result from this litigation on top of the constitutionally required services for prisoners.

In some states, such as California, members of the legislature attempted to derail the new “get tough” sentencing laws by using procedural techniques to prevent votes on the new laws. However, soon the

proponents of enhanced punishment packaged their proposals in ballot measures that went to the voters. Most of these punishment enhancements were embraced by the voters, although data on the costs and crime control effects of these laws were rarely discussed in the ballot campaigns. Most politicians ducked these discussions and sided with the tough-on- crime advocates. There were few examples of any courageous attempt to have an open and public debate on the real effects of the legislation.

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SPOTLIGHT

PLEA BARGAINS AND PROSECUTOR DISCRETION

Most people involved in the U.S. corrections system today have never had their day in court, except perhaps to assure a judge that they indeed were acting voluntarily as they pled guilty to the offenses laid out by the prosecutor. Instead, 90% to 95% of all cases in federal and state criminal

court turn on plea bargains.1

In a plea bargain, the defendant is offered a difficult choice: risk trial and its uncertain outcome or plead guilty to either a lesser charge than the prosecutor intends to pursue in court or the same charge but with a less severe sentence. Perhaps plea bargains are a necessary part of the nation’s cumbersome, congested, and expensive judicial system, but they are, at the same time, complicated and imperfect.

On one hand, a defendant may think that, with a quality defense during a full trial, with a full disclosure of the facts of the case and any contributing circumstances, and with an objective —perhaps even sympathetic—judge and jury, the trial may turn out better than the plea. But maybe not.

The unpredictability of judges, juries, counsel, witnesses, and evidence makes going to trial risky, even for the innocent. Also, a great deal of research has found that those who opt for trial and are convicted suffer harsher outcomes for the same

crimes.2 This could be due to a number of reasons depending on the individual trial. However, some recent research suggests a trial may more often than not be a good option for a defendant, perhaps because some of the unpredictability of the court

process has been reduced due to sentencing guidelines, determinate

sentencing, and three-strikes laws.3

Many factors have been shown to contribute to the likelihood of a defendant being offered and accepting a plea agreement, including the higher seriousness of the charges, having a prior record, and the apparent strength of the evidence. A plea bargain is more likely if the defendant is in jail while awaiting trial or if a public defender is used. Conversely, charges are more likely to be dropped altogether, and a plea bargain is less likely, when the defendant is free in the community awaiting trial or if private counsel is hired. Race is also a factor, with African Americans less likely to receive a reduced charge or reduced sentence through plea bargaining. Geography—that is, in what region the case is being processed—also impacts the likelihood of a defendant being offered a plea bargain.

The key element behind many of the factors named above is whether the prosecutor is willing to reduce the charge or sentence and by how much. Prosecutors hold a great deal of discretion in who is offered a plea, the maximum charge and sentence put forward in trial and in the bargaining

process, the reduced charge or sentence offered as an alternative, and the other tactics used in the bargaining process.

In a system where the vast majority of defendants accept a plea deal, the process by which the deal is reached and (especially for the defendant) the details of the offer become paramount. One impact of the existing plea bargaining process is variation in how similar cases are resolved. Defendants with the same charge and similar records may have quite different outcomes. That the chief prosecutor—district attorney—is usually in an elected position also adds a political element into the equation. It is true, however, that there is much variation in the outcome of jury trials as well, and judges are also often elected to the bench. In most cases, the prosecutor presumably tries to reach an equitable agreement and makes a good-faith effort to provide a thorough account of the state’s case and a realistic estimate of what the defendant should expect if he or she chooses

trial.4

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What is absent in the process is the elaborate and formal system of checks

© John Kuntz/The Plain Dealer/Landov

̖ Defendants who agree to plea bargains waive their right to a

jury trial and their right against

self-incrimination and plead

guilty to criminal offenses.

and balances present in open court. Unlike court proceedings, in which rules and procedures are painstakingly defined and reviewed, with the prospect of appeal to a higher court providing a constant pressure for all parties to follow the rules, the process and outcomes of plea bargains have had little scrutiny from the courts or other branches of government and are very rarely subject to appeal. Judges have discretion to refuse plea bargains, but they rarely do. There have been a few important cases addressing plea issues, especially a 2010 case regarding immigrant status that stressed the right to effective defense

counsel.5 But for the most part, plea

bargains still operate in their own sphere.

Finally, pleading guilty does not necessarily equate with being guilty, any more than being innocent guarantees an acquittal in court. Some still argue that defendants would never plead guilty to a crime they did not commit. Indeed, the notion of plea bargaining to a large extent hinges on this assumption, since a system that regularly punishes the innocent is apparently failing to fulfill its mandate. Yet innocent people do sometimes plead guilty. Recent exonerations have shown this

definitively.6 These are often the mentally disabled or youth, which only emphasizes the fact that safeguards need to be in place.

QUESTIONS 1 What are the most significant

inherent problems with the plea bargaining system?

2 If you were facing a trial for a crime you did not commit, would you consider pleading guilty to a lesser crime to avoid a trial? What factors would influence your decision?

3 Should plea bargaining be allowed for youth and for the mentally

disabled?

Notes

1 .1 . Devers 2011

2 .2 . Ulmer and Bradley 2006

3 .3 . Abrams 2011

4 .4 . Yaroshefsky 2008

5 .5 . Bibas 2011; Padilla v. Kentucky 2010

6 .6 . Bibas 2011

Unsatisfied by many new enhanced punishment laws, some pushed for even harsher treatment for repeat offenders. The most dramatic examples borrowed a phrase from baseball and were known popularly as “Three Strikes and You’re Out.” Although many states already had laws to increase punishment for chronic recidivists, these new three-strikes laws promised life sentences for individuals with multiple convictions. Washington was the first state to enact a three-strikes law; in California, the law was enacted by the voters and has the status of a constitutional amendment. President Bill Clinton supported a three-strikes law for the federal system, and many other states quickly passed their own versions of three strikes in the 1990s. Appeals to the U.S. Supreme Court have tried to challenge these laws, but the court has so far been

reluctant to intervene in the state

legislative process.

Some naïve liberals believed that three- strikes laws would end the trend toward more punishment. These “progressives” assumed that three-strikes laws could be written very narrowly so that that only a small number of convicted persons would be impacted. They also assumed that parole boards could rectify manifest injustices later in the sentencing process. They were very wrong.

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SPOTLIGHT

THREE-STRIKES LAWS

Among the long-term impacts of the tough-on-crime attitudes of the 1980s and 1990s was a wave of “Three Strikes and You’re Out” laws that ratcheted up prison terms for repeat offenders. Meant to close the so- called revolving door of justice that let the convicted back onto the streets only to be rearrested for new crimes, the intent of these laws was incapacitation: Public safety would be

protected and taxpayer dollars saved by placing and keeping repeat offenders behind bars. It was also argued that the laws deterred reoffending by making it abundantly clear to potential lawbreakers that more crime meant more time, and lots of it.

Riding the wave of media coverage of rare but horrible crimes like the 1993 abduction and murder of 12-year-old Polly Klaas, three-strikes laws were eventually enacted in over half of the U.S. states. They have resulted in a significant number of convictions in several states, including Florida, Georgia, Nevada, North Carolina, Virginia, and Washington. But no state has a more severe or more impactful three-strikes law than California.

California’s law, passed by a popular landslide in 1994, is notable for its particularly low threshold for what constitutes a second or third strike, for the length of the resulting prison sentences, and for its extensive (if not consistent) application by prosecutors. Sentences are doubled when those with a prior conviction for a serious or violent felony are convicted of any new felony, including

nonviolent and nonserious felonies.1

And, according to the original law, for those with two serious or violent

felony prior convictions, a third conviction for any new felony automatically receives a minimum sentence of 25 years to life.

Several additional elements add to the severity of the California law and make clear its punitive intent. Multiple new felonies must be served consecutively rather than concurrently so that, if the third strike represents two felony offenses, the minimum term is 50 years to life. Good-time credits, which normally can shorten a sentence substantially for cooperative inmates who participate in programming, can reduce the minimum term by no more than one fifth. Suspension of sentence, probation, and diversion are not allowed. The length of time between convictions cannot be used as a reason to shorten the sentence.

Stories of the law missing its mark began hitting the media almost as soon as the stories that propelled it to passage faded away—the two-time burglar sentenced to 25 to life after stealing a pair of sneakers and another 25-to-lifer whose third strike for possession of crack cocaine came after three decades without a strike. Although the law ensured that those with multiple convictions for the most serious offenses served much if not all

of their remaining life in prison, it could also send those convicted of much lesser crimes to prison for the same amount of time. The number of prisoners serving long sentences because of a very low-level third strike was kept in check, in theory, by the use of discretion by judges and prosecutors as to which felonies formally counted as “strikes.” But this discretion also led to another concern about the law—inconsistent

application.2

The three-strikes law has survived several court challenges, including the argument that it was cruel and unusual punishment. The U.S. Supreme Court in that case said the law was constitutional because of the state’s interest in incapacitating and deterring recidivists. The justices added that determining whether “the time fits the crime” was a political rather than a judicial decision but that judges did have the authority to void previous convictions that might

otherwise be counted as strikes.3

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Predictions that three strikes in California and elsewhere would drastically reduce crime did not come true. While a long decline in crime rates started in the 1990s,

researchers attribute the decline to other factors, with most studies reporting no significant difference between states with three-strikes

legislation and those without.4 When there does appear to be a correlation between three strikes and lower crime rates, it is small—far less than proponents of the laws claim and not enough to justify the costs of keeping the aging population of three-strikers

in prison.5 Furthermore, the “striker” population in prison does not represent the serious offenders the law was meant to target but rather represents lesser offenders who account for a relatively small proportion of California’s convicted

felons.6

Ongoing efforts to revise or repeal the law into the 2000s made clear that support for the law was not nearly as strong as it was at its passage. Even the family of Polly Klaas, who actively campaigned for passage of three strikes in 1994, supported efforts to reshape the law so that it more accurately targeted very serious repeat offenders. Finally in 2012, voter-approved Proposition 36 modified three strikes so that, in most cases, a serious or violent felony is required to warrant a third strike and the associated sentence of 25 years to

life. Still, harsh elements of the original law remain, including 25 to life for many types of third strikes and double sentences for second strikes and for third strikes that do not receive life sentences.

As Proposition 36 results in some current three-strikers having their sentence reduced and fewer new convictions leading to life sentences, estimates suggest that the state will save up to $90 million annually. (California counties will incur some new costs, estimated as a few million dollars among them; under realignment, they will oversee some of

those avoiding life sentences.)7

However, the three-strikes law continues to impact California’s burdened prison system: Strikers represented almost one third of state prisoners in 2012, including 33,251 two-strikers and 8,876 three-

strikers.8

QUESTIONS 1 What makes California’s three-

strikes law different than what other states have?

2 Discuss whether three strikes in California should be considered cruel and unusual punishment.

3 What is the crime reduction

theory behind three strikes, and how have crime rates supported or undermined the theory?

Notes

1 .1 . Certain felonies are legally designated “violent,” such as murder, aggravated assault, rape, and robbery, or “serious,” such as residential burglary, assault on a police officer, and assault with intent to commit robbery.

2 .2 . Chen 2008b

3 .3 . Brown and Jolivette 2005

4 .4 . Ibid.; Males 2011

5 .5 . California Department of Corrections and Rehabilitation (CDCR) 2010; Chen 2008a

6 .6 . Brown and Jolivette 2005; CDCR 2010; Zimring, Kamin, and Hawkins 1999, 73

7 .7 . California Budget Project 2012

8 .8 . CDCR 2012

In rapid succession, conservative criminal justice advocates seized on the alleged problem that sentences given in open court were not actually served by the individuals because they were given time off their sentences for good behavior. In many states, prisoners could earn a

reduction of up to half of their sentences

by not engaging in any activities prohibited by prison rules and by participating in education and rehabilitation programs. “Good time” was used as a low-profile way to reduce prison crowding. In addition, the courts imposed capacity limits on prisons and jails, leading corrections officials to accelerate the release of inmates through

a variety of ad hoc mechanisms.28 The

response to these practices was a series of laws known under the generic name of “truth in sentencing.” These laws either eliminated or severely limited the reduction of sentences by any means. They mandated that persons convicted of violent offenses, sex crimes, and some drug offenses serve at least 90% of their originally assigned prison terms. The behavior of inmates while in prison could no longer impact their release dates. Corrections officials generally opposed these truth-in-sentencing provisions, arguing that they removed incentives for inmates to follow the rules of the institution. Indeed, prisons became even more violent and dangerous. At the national level, President Clinton gave in to political pressure and included truth in sentencing as part of a federal crime bill. States had to promise to make a good-faith effort to study and enact truth in sentencing as a condition to receive federal funding.

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IN THE COURTS Ewing v. California

538 U.S. 11 (2003)

Gary Ewing was sentenced under California’s three-strikes law to 25 years to life. His third strike was the theft of a set of golf clubs worth $399. He had two prior convictions for theft charges that had occurred more than 12 years before the current offense. Under California law, the theft of the golf clubs, by itself, could have been considered a misdemeanor. In that case, Mr. Ewing might have received probation and a short jail term. However, the judge chose the harshest sentence possible.

Mr. Ewing challenged the state’s three-strikes law as cruel and unusual punishment in violation of the Eighth Amendment. The U.S. Supreme Court turned down his appeal on a 5-4 decision.

For the majority, Justice Sandra Day O’Connor wrote that legislatures make a “deliberate policy choice” to

deter those who have “repeatedly engaged in serious or violent criminal behavior” and to incapacitate them to protect the public safety. Although she acknowledged that California’s three-strikes law may have generated some controversy, she went on to state that “we do not sit as a superlegislature to second-guess the policy choices made by particular states. . . . It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way.”

The justices who dissented (Stevens, Breyer, Souter, and Ginsburg) all referenced the core value of proportionality of punishment as central to the Eighth Amendment.

The Ewing case and Lockyer v. Andrade (538 U.S. 63, 2003) effectively ended the judicial challenges to California’s three- strikes law.

Mr. Ewing will not get a parole hearing until at least 2025. There are currently more than 8,000 inmates in California prisons serving a 25-to-life term under the three-strikes law. Almost half have nonviolent crimes as their third strike. There have been at

least two attempts to get the voters to change the law, at least for nonviolent offenders, but none of these have passed so far. In 2012, another ballot measure was designed to allow some nonviolent offenders to avoid the draconian three-strikes law.

During the latter half of the 1990s, many states made it easier to prosecute juveniles in criminal courts, shifting to prosecutors the discretion to file juvenile cases directly into criminal courts, bypassing judicial reviews to determine the appropriateness of removing those cases from the juvenile court system. Many states also enacted laws vastly increasing penalties based on evidence that an individual was a gang member. But the most punitive sentencing laws were specifically targeted toward sex offenders. These laws included increased penalties, lifelong requirements to register with the police department, and mandatory life sentences for some sex crimes, as well as provisions to continue the custody of sex offenders using civil commitment laws— even after these individuals had served their entire criminal court sentences.

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SPOTLIGHT

© Jewel Samad/AFP/Getty Images

SPOTLIGHT

FAIR SENTENCING ACT OF 2010

For approximately 30 years, persons arrested for possession of crack cocaine (or cocaine base) were sentenced far more severely than those who were caught with powder cocaine. Prior to this historic legislation, if a person were arrested for possession of 5 grams of crack cocaine, he or she likely faced a mandatory minimum sentence of five years, according to federal law. It took 500 grams of powder cocaine to mandate that same five-year sentence. The 100:1 sentencing structure that has drawn so much criticism was primarily the result of

the Anti-Drug Abuse Act of 1986. This disparity was justified on the basis that crack cocaine was supposedly far more addictive than powder cocaine, was more frequently associated with crime, and was far cheaper—and thus more likely to be consumed in large quantities. The specter of the “crack baby” became a symbol and figured into the fear factor surrounding this drug.

The inherent racial bias of this policy was discussed for over 15 years before the passage of the Fair

Sentencing Act of 2010.1 It was assumed that crack was predominantly used by members of the poor Black community and was associated with a dissolute lifestyle. Powder cocaine, being far pricier, was considered a party drug and was used largely by the affluent.

In fact, in 2003, more than 66% of crack users were White or Hispanic, but the vast majority of federal crack cocaine defendants were African

American.2 Furthermore, the two substances are pharmaceutically identical. The difference in its effect can be attributed to how the user ingests it; smoking crack versus snorting cocaine produces a faster

and more intense high.3

The Fair Sentencing Act was also meant to increase penalties for drug trafficking as opposed to drug use or possession and to allow judges more discretion in departing from the presumed sentence using mitigating or aggravating factors.

The repeal of the applicable portion of the federal sentencing guidelines was signed into law by President Barack Obama in August 2010. The legislation recognizes the role of this single issue in the vast racial disparity of African Americans behind bars.

QUESTIONS 1 What information should Congress

rely on to determine appropriate drug sentencing?

2 Why should drug trafficking be treated differently than drug possession or use?

Notes

1 .1 . Fair Sentencing Act of 2010

2 .2 . Vagins and McCurdy 2006

3 .3 . U.S. Sentencing Commission 1997

Changes also came to parole laws and practices. Ironically, some states that tried

to abolish parole in the 1980s later extended parole supervision after prison release. Parole was changed from its traditional role as an alternative to serving one’s term in prison to a system of mandatory postrelease supervision. Parole failure rates rose, and the majority of admissions to prison were for violations of parole conditions, not for new convictions. Laws also defined new conditions of parole that prohibited sex offenders or drug offenders from living near schools or other places defined as risky. These “no live” zones made it nearly impossible for released prisoners to obtain legal housing in urban areas.

p.66

Other laws further penalized released prisoners by restricting them from living in public housing or receiving federal welfare, disability benefits, educational scholarships, or loans. And they were barred from many jobs. These new legal barriers made successful community reentry after incarceration very difficult.

As the United States entered the 21st century, it had the highest incarceration rate in the world. Public expenditures for prisons and jails soared, as did recidivism rates. There was growing skepticism among the public that these get-tough approaches were effective in improving public safety and were appropriate for the

convicted, especially minor drug

offenders.29 In particular, there was a sense that the War on Drugs was very costly—that it had decimated African American and Latino communities by locking up so many young people and leaving behind a generation of children whose parents were behind bars. Some states began to pass ballot measures to reduce penalties for drug offenders and direct them to treatment programs in the community. In other cases, elected officials rolled back the most draconian penalties for minor drug users—although this process was tentative and limited.

A number of judges had a different response to legislative decriminalization. They proposed the establishment of “drug courts” to provide intensive supervision and services to some individuals in lieu of imprisonment. The drug court movement has expanded to include specialized courts for mentally ill offenders, domestic violence, and reentry. These special courts practice what has been called therapeutic justice—a legal approach that is similar to the traditional ideal of the juvenile court. At its core, therapeutic justice attempts to actualize the principles of rehabilitation theory but has updated these ideas with the emerging theories of restorative justice and reintegrative shaming. This development promises to profoundly change corrections by reducing the reliance on incarceration and transforming

traditional probation programs.

During the Obama administration, the debate about reforms took on a more pressing tone. Bipartisan efforts—a rare political animal in the 2000s—took shape to scale back the sentencing that more and more people agreed was excessive. The reliance on incarceration began to be recognized as an extravagance—a spendthrift approach to corrections, the cost of which had become far too high. Attorney General Eric Holder unveiled a reform plan that set the tone for a serious national review of drug law prosecutions. As part of his 2013 Smart on Crime Initiative, he ordered federal prosecutors to no longer pursue mandatory minimums in many nonviolent drug cases; to decline to pursue add-on charges, called “recidivist enhancements”; and to indicate smaller quantities of drugs when charging defendants in order to avoid unnecessarily longer sentences. He also encouraged the use of specialty courts and diversion and

improvements in reentry programming.30

Within a year, it was clear that his wishes were being answered, with fewer prosecutions of those cases and fewer

mandatory minimums sought.31 His directive applied only to those charged in the federal system, but the sentiment matched those of many state policymakers as well as the general public.

Much of this progress was put back on the

chopping block by President Donald Trump’s pick for Attorney General, Jefferson Beauregard Sessions. Considered an outlier as a senator, Sessions pushed for the harshest punishments allowed under the law. After becoming Attorney General in 2017, he was in a position to roll back the moves made toward a more centrist approach to prosecution and sentencing and, in fact, in his first days in office he rescinded the Holder directives and ordered federal prosecutors to seek convictions on the most serious offense and the longest sentences.

p.67

SUMMARY

Sentencing is a key function of the justice system, determining what kind and duration of penal sanction will be exacted from which individual defendants. Perhaps more than any other aspect of the justice system, sentencing expresses the prevailing attitudes and values of society as it regards punishment for lawbreaking.

Sentencing is affected primarily by state

law, prosecution and defense practices,

presentence reporting, and the judiciary. Among the 50 states, there is great variety in the structure of sentencing, but most schemes are either determinate or indeterminate, and most try to strike a balance to address the dilemma between adequate discretion and consistency in decision making.

The main theories of sentencing are retribution, deterrence, incapacitation, and rehabilitation. Most systems combine these goals. The structure and process of sentencing in the United States remained stable for over 75 years before guidelines became more prevalent. There are other approaches as well, including increasing trends of trying youth in adult court, mandatory incarceration, and restorative justice. Sentencing is directly related to rates of incarceration and the resulting associated costs. Political forces play a significant role in determining the prevailing values and culture of sentencing.

DISCUSSION QUESTIONS 1 .1 . Research and discuss the sentencing

structure in your state.

2 .2 . Devise a set of presentence investigation interview questions for family members and friends of

defendants. Conduct mock interviews.

3 .3 . Describe and discuss the theories of sentencing.

4 .4 . What are specific deterrence and general deterrence? What do you think is deterrence that works?

5 .5 . If you were a victim of a burglary and could confront the person who victimized you, what would you ask from that person?

6 .6 . Discuss the merits of indeterminate sentencing versus determinate sentencing.

KEY TERMS Conviction, 45

Criminogenic needs, 48

Decriminalization, 66

Determinate sentence, 45

Disparity, 46

Diversion, 57

DUI, 58

Noncriminogenic needs, 49

Parole board, 45

Plea bargain, 47

Presentence investigations, 45

Recidivism, 51

Restitution, 56

Restorative justice, 56

Retributive justice, 49

Risk assessment instrument, 47

Risk factor, 48

Sentence, 45

Sentencing commissions, 46

Sentencing guidelines, 45

Slave codes, 50

Therapeutic justice, 66

Three strikes, 61

Truth in sentencing, 63

War on Drugs, 58

p.68

NOTES 1 . 1 . Lawrence 2015

2 . 2 . U.S. v. Booker 2005; U.S. v. Fan Fan 2005

3 . 3 . Bonta and Andrews 2007; Warwick, Dodd, and Neusteter 2012

4 . 4 . Krisberg and Marchionna 2006

5 . 5 . Breed, in Krisberg, Baird, and Marchionna 2007

6 . 6 . Von Hirsch 1976

7 . 7 . American Friends Service Committee 1971

8 . 8 . Fogel 1975

9 . 9 . Zimring 1971

1 0 .1 0 . Guzman, Krisberg, and Tsukida 2008

1 1 .1 1 . Burgess 1928

1 2 .1 2 . Martinson, Lipton, and Wilks 1975

1 3 .1 3 . Martinson 1979

1 4 .1 4 . Lemert 1972

1 5 .1 5 . Schur 1973

1 6 .1 6 . In re Gault 1967

1 7 .1 7 . Travis 2005

1 8 .1 8 . American Civil Liberties Union 2017; California Department of Corrections and Rehabilitation 2007; Krisberg and Marchionna 2006; Pew Research Center 2012; Pew Charitable Trusts 2016

1 9 .1 9 . Zedlewski 1987

2 0 .2 0 . DiIulio 1990; Reynolds 1991

2 1 .2 1 . Blumstein et al. 1986; Zimring and Hawkins 1988

2 2 .2 2 . Greenwood 1982

2 3 .2 3 . Haapanen 1988

2 4 .2 4 . Bazemore and Maloney 1994

2 5 .2 5 . Braithwaite 1989

2 6 .2 6 . Umbreit 1998

2 7 .2 7 . Krisberg, Baird, and Marchionna 2007

2 8 .2 8 . Guzman, Krisberg, and Tsukida 2008

2 9 .2 9 . Hartney and Marchionna 2009

3 0 .3 0 . Smart on Crime 2014

3 1 .3 1 . U.S. Department of Justice 2016

DIGITAL RESOURCES

Sharpen your skills with SAGE edge at edge.sagepub.com/krisberg2e

SAGE edge for students provides a personalized approach to help you accomplish your coursework goals in an easy-to-use learning environment. This site includes mobile-friendly eFlashcards and web quizzes as well as web, audio, and video resources and links to SAGE journal articles.

F O R F U RT H E R E X P LO R AT I O NF O R F U RT H E R E X P LO R AT I O N A N D A P P L I C AT I O N , TA K E A LO O KA N D A P P L I C AT I O N , TA K E A LO O K AT T H E I N T E R AC T I V E E B O O K F O RAT T H E I N T E R AC T I V E E B O O K F O R T H E S E P R E M I U M R E S O U RC E S :T H E S E P R E M I U M R E S O U RC E S :

C a r e e r V i d e o 3 . 1 :C a r e e r V i d e o 3 . 1 : Court

Administrator

Fe a t u r e V i d e o 3 . 1 :Fe a t u r e V i d e o 3 . 1 :

Consequences

Fe a t u r e V i d e o 3 . 2 :Fe a t u r e V i d e o 3 . 2 : Deterrence

Theory

S AG E N e w s C l i p 3 . 1 :S AG E N e w s C l i p 3 . 1 : Nevada Pa-

role Law

S AG E N e w s C l i p 3 . 2 :S AG E N e w s C l i p 3 . 2 : Tiger

Woods’ Arrest

J o u r n a l A r t i c l e 3 . 1 :J o u r n a l A r t i c l e 3 . 1 : The predic-

tive validity of the post-conviction risk assessment among federal offenders

J o u r n a l A r t i c l e 3 . 2 :J o u r n a l A r t i c l e 3 . 2 : Restorative

justice–Informed moral acquain- tance: resolving the dual role prob- lem in correctional and forensic practice