Assignment: Philosophical Orientations and Theories of Corrections

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5 Sentencing The Application of Punishment

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Media Library

CHAPTER 5 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

Rennison career video 5.1: Victim Advocate

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

SAGE News Clip 5.1: Patz Sentence

SAGE News Clip 5.2: Texting Suicide

J o u r n a l A r t i c l eJ o u r n a l A r t i c l e

Journal Article: 5.1: “Race, Ethnicity, and Habitual-Offender Sentencing”

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LEARNING OBJECTIVES

• Explain how modern sentencing engages Aristotle’s notion of justice

• Describe the different types of sentencing and their rationales

• Define and explain the role of problem-solving courts

• Assess the issues surrounding sentencing disparity

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

TEST YOUR KNOWLEDGE

Test your current knowledge of the criminal sentencing process by answering the following questions as true or false. Check your answers on page 390 after reading the chapter.

1. Basic principles of justice mandate that the criminal justice system punish every person convicted of

committing the same crime equally regardless of other differences.

2. The only concern at sentencing is the severity of the crime the defendant has committed.

3. Three-strikes laws are laws that allow states to possibly imprison for life a person who has been convicted of a third felony.

4. If a person is convicted of two different crimes committed on two different occasions, he or she must be sentenced to consecutive terms (one to be served after the other is completed) of probation or prison.

5. Because victims or their survivors can unfairly prejudice a judge against a defendant, with the exception of death penalty cases, victims or survivors cannot have any input into the sentencing decision.

6. Except for statutory limitations, judges basically must decide on an appropriate sentence for convicted felons without any guidance or advice.

7. Blacks and other minorities are frequently subjected to discriminatory sentencing.

8. Separate courts exist for criminals with special problems such as drug addiction.

9. All states use guidelines to help judges make sentencing decisions.

VINDICTIVE VERSUS SENSIBLE SENTENCING

“Jane” is a 30-year-old mother of three children aged 8, 6, and 4. Her husband recently suffered a heart attack and died, leaving Jane with no money. Jane has only a 10th-grade education and cannot afford child care costs, so she was forced onto the welfare rolls. When Christmas came around, she had no money to buy her children any presents, so she took a temporary Christmas job at the local mega store where she earned $1,200 over a 2-month period. Jane did not report this income to the welfare authorities as required by law, and a welfare audit uncovered her crime. The terrified and deeply ashamed Jane pled guilty to grand theft, which carries a possible sentence of 2 years in prison, and was referred to the probation department for a presentence investigation report (PSI).

“Jim” is a 32-year-old man with a lengthy record of thefts and other crimes committed since he was 10 years old. Jim also pled guilty before the same judge on the same day and was likewise referred for a PSI. Jim had stolen money and parts totaling $1,200 from an auto parts store during one of his brief periods of employment.

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These two cases point to a perennial debate about the appropriate sentence for people who commit the same crime. Recall the classical and positivist schools of thought discussed in Chapter 1. Although both positions are ultimately about the role of punishment, the classical position maintains that punishment should fit the crime and nothing else. That is, all people

convicted of identical crimes should receive identical sentences regardless of any differences they may have. The classical position maintains that Jane and Jim freely chose to commit the crimes, and the fact that Jim has a record and Jane does not is irrelevant. The positivist position is that punishment should fit the offender and be appropriate to rehabilitation. Jane and Jim’s crimes were motivated by very different considerations; they are very different people morally, and blindly applying similar punishments to similar crimes without considering the possible consequences is pure folly. Think about these two cases and your own position on them as you read about the purpose of sentencing, the way sentencing guidelines are structured, and the uses of the PSI.

INTRODUCTION: WHAT IS SENTENCING?

Sentencing refers to a post-conviction stage of the criminal justice process. A sentence is the punitive penalty ordered by the court after a defendant has been convicted of a crime either by a jury, in a bench trial by a judge, or in a plea bargain. Sentencing typically occurs about 30 days after conviction. The goals of sentencing are to implement one or more of the punishment philosophies discussed in Chapter 1: retribution, deterrence, incapacitation, or rehabilitation. In some states juries may be entitled to pronounce sentences, but in most states, and in federal court, sentencing is performed by a judge— except in death penalty cases, where it is the jury’s responsibility. The penalties meted out at sentencing can include various forms of

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PHOTO 5.1: Fairness in sentencing is often a difficult goal to attain, with many factors to consider such as the type of crime committed, the criminal history of the offender, and the requirements of the judicial system.

probation coupled with fines and restitution orders and/or treatment orders, house arrest/electric monitoring, work release, jail time, prison time, or the death penalty, all of which are discussed elsewhere in this book. The severity of the penalty depends on the crime or crimes of which the defendant is convicted and the extent of his or her criminal history, although other factors—both legitimate and illegitimate—may also come into play.

It is a major concern of the American criminal justice system that punishments received by defendants at sentencing should be consistent with justice. Justice is a moral concept that is difficult to define, but in essence it means to treat people in ways consistent with norms of fairness and in accordance with what they justly deserve by virtue of their behavior. Perhaps the best definition was provided by the Greek philosopher Aristotle many centuries ago: “Justice consists of treating equals equally and unequals unequally according to relevant differences” (cited in

Walsh & Stohr, 2010, p. 133). In terms of sentencing, this means that those who have committed the same crime and have similar criminal histories are considered legal “equals” and should be treated equally. Those who have committed different crimes and have different criminal histories are considered legal “unequals” and therefore should be treated unequally; that is, one should be treated either more leniently or more harshly than the other.

You may ask what these “relevant differences” are and who defines them. Strictly speaking, the relevant differences in sentencing should be limited to legally relevant factors (crime seriousness and prior record), but extralegal factors are often also brought into play such as gang affiliation, a history of substance abuse, and a person’s rehabilitative potential (as the opening vignette suggested). Depending on what these factors are, justice is either served or not served by adding them. A judge who sentences a remorseful mother—whose children would become wards of the state if she were sent to prison—to probation rather than to prison is probably acting justly. This may be so even if the same judge sentences to prison an unremorseful single man who has committed the same crime and has an identical criminal record as the mother and, thus, the judge is treating legal equals unequally. On the other hand, if the judge sentences legal equals unequally only because one defendant is a woman and the other is a man, or only because one defendant is black and the other is white, then the judge is not acting justly.

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TYPES OF SENTENCES:

INDETERMINATE, DETERMINATE, AND MANDATORY

A prison sentence a person receives can be indeterminate or determinate. An indeterminate sentence is one in which the actual number of years a person may serve is not fixed but rather is a range of years, such as the person “shall be imprisoned for not less than 2 or 3 years to 10 years.” More serious crimes move both minimum and maximum time periods upward. Indeterminate sentences were previously much more common than they are today, but a number of states still retain this system. Indeterminate sentences fit the positivist rehabilitation philosophy of punishment because they allow offenders to be released after they have served their minimum period if they demonstrate to the parole board’s satisfaction that they have made efforts to turn their lives around. Such sentences are tailored to the offender and aimed at rehabilitation rather than tailored to the crime and designed to be strictly punitive.

SAGE News Clip SAGE News Clip 5.1: Patz Sentence

The indeterminate sentencing model prevailed most strongly under the so-called medical model, whereby offenders were considered “sick” and in need of a cure. Because some

criminals may be “sicker” than others, the time made available for the “cure” must be flexible. Offenders who behaved themselves in prison and could demonstrate that they were “reformed” could be rather quickly released; ill-behaved and stubborn offenders might need to serve the upper boundary (10 years in the above example) and be released whether “rehabilitated” or not. It has been precisely because of its flexibility that indeterminate sentencing has been accused of contributing to sentencing disparity. For instance, even if two offenders receive the same “2 to 10 years,” one may serve only 2 years because he or she can keep out of trouble and knows how to play the rehabilitation/parole game while the other, who is more rowdy and does not play the game as well, may serve 2 or 3 more years. Supporters of the model, however, will reply that it is not the judiciary that is at fault (after all, both offenders were sentenced identically by judges); rather, it is the inmates themselves who caused the discrepancy by their different behaviors while incarcerated.

SAGE News Clip SAGE News Clip 5.2: Texting Suicide

Prisoners released from state prisons in 1996 served an average of only 44% of their sentences under predominantly indeterminate

Comstock/Thinkstock

PHOTO 5.2: A defendant listens as his sentence is announced by the judge.

sentencing structures (Ditton & Wilson, 1999). Rising crime rates during the 1980s and early 1990s saw a groundswell of opposition to what many saw as “mollycoddling” criminals, and there were many calls for longer sentences. In response to public demands, most states enacted truth- in-sentencing laws. These laws require that there be a truthful, realistic connection between the custodial sentences imposed on offenders and the time they actually serve and mandate that inmates serve at least 85% of their sentences before becoming eligible for release. In addition, many states restrict good time credit and/or parole eligibility.

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Determinate sentences became more prevalent after the enactment of truth-in-sentencing laws. A determinate sentence means that convicted individuals are given a fixed number of years they must serve rather than a range. Under a determinate sentencing structure, the maximum prison time for a given crime is set by the state legislature in state statutes. This structure is more in tune with the classical notion that the purpose of

punishment is to deter and that all who commit the same crime must receive a fixed sentence. This does not mean that everyone convicted of the same crime receives the same set penalty. For instance, the maximum time for burglary may be set at 15 years, and a repeat offender may be sentenced to the full 15 years. Another person who is a young first offender may receive only 5 years. Whatever the sentence, offenders know under this sentencing structure how much time they will need to serve. Longer and more determinate sentences satisfy the urge for greater punishment for offenders and serve an incapacitation function. However, time off for good behavior is still granted.

Another type of sentencing is mandatory sentencing, sometimes known as mandatory minimum sentencing. Mandatory sentencing can exist in the context of both determinate and indeterminate sentencing structures and simply means that probation is not an option for some crimes and that the minimum time to be served is set by law. It is set by law because legislative bodies in various states have decided that some crimes are just too serious for probation consideration (certain violent crimes) or have decided that there is a particular problem, such as drug trafficking or the use of a gun during the commission of a crime, that requires mandatory imprisonment as a deterrent.

Prison sentences imposed for two separate crimes, whether they occurred during the same incident (e.g., robbery and aggravated assault) or in different incidents (e.g., two separate burglaries), can be ordered to be served concurrently or consecutively. A concurrent sentence is one in which two separate sentences are served at the same time. If the robbery and aggravated assault crimes both carry sentences of 10 years, for

instance, the offender’s release date would be calculated on the basis of 10 years rather than 20 years. A consecutive sentence is one in which two or more sentences must be served sequentially (one at a time). If the robber/aggravated assaulter received two 10- year sentences to be served consecutively, his or her release date would be based on 20 rather than 10 years. Therefore, consecutive sentences increase the time a person spends in prison. The judge’s decision to impose concurrent or consecutive sentences for persons convicted of two crimes may rest mainly on factors such as the seriousness of the crimes, criminal history, plea bargain arrangements, and offender cooperation. Some have suggested that judges may actually impose harsher sentences on those offenders with the audacity to demand a trial rather than accept a plea bargain because it makes extra work for the judge. This philosophy has been expressed as the judge’s warning—“You take some of my time and I’ll take some of yours” (Neubauer, 2008).

HABITUAL OFFENDER STATUTES

Habitual offender (or “three-strikes- and-you’re-out”) statutes are derived from the same punitive atmosphere that led to truth-in-sentencing statutes. These statutes essentially mean that offenders with a third felony conviction may be sentenced to life imprisonment regardless of the nature of the third felony. This is a way of selectively incapacitating felons only after they have demonstrated the inability to live by society’s rules. This all sounds fine until we factor in the financial costs of these sentences. Few of us would be against the lifetime incarceration of seriously violent offenders, but many states

include relatively minor nonviolent crimes in their habitual offender statutes. For instance, the U.S. Supreme Court upheld the life sentence of a felon under Texas’s habitual offender statute even though the underlying felonies involved nothing more serious than obtaining a total of less than $230 over a 15- year period by false pretenses (fraudulent use of a credit card and writing bad checks) in three separate incidents (Rummel v. Estelle, 1980). Very few of us would consider this a just sentence, and apart from the disproportionate nature of the sentence, the cost to the taxpayers of Texas of keeping Rummel in custody is many thousand times greater than the $230 he fraudulently obtained.

JOURNAL ARTICLE Journal Article: 5.1: “Race, Ethnicity, and Habitual-Offender Sentencing” CLICK TO SHOW

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A life sentence still carries with it the possibility of parole, but some life sentences are imposed as life without parole (LWOP). Such sentences may seem popular with the public at large until taxpayers get the bill. According to Nellis (2010), in 2008 there were 140,095 prisoners serving LWOP sentences in the United States, a 400% increase from 1984. LWOP sentences are usually imposed on those convicted of murder, but habitual property offenders have also been given such sentences. Long-term incapacitation of violent and/or habitual offenders is sound policy, but how much time is enough? In one large-scale study, only one- fifth of “lifers” who were released after long stays (15–30 years) in prison were rearrested within 3 years versus two-thirds of non-lifers

who were released (Mauer, King, & Young, 2004). Old age is the best “cure” for criminal behavior that we have, so perhaps releasing lifers after 20 to 30 years of imprisonment is both humane and fiscally responsible. Given the ever increasing medical needs of people as they age, elderly inmates add a highly disproportionate financial burden on taxpayers.

OTHER TYPES OF SENTENCES: SHOCK, SPLIT, AND NON-CUSTODIAL SENTENCES

Judges have many sentencing options open to them besides straight imprisonment. The fact is that more than 90% of sentences imposed in our criminal courts do not involve imprisonment (Neubauer, 2008). One type of sentence that does include imprisonment is shock incarceration, also called shock probation. This type of sentence is used to literally shock offenders into going straight by exposing them to the reality of prison life for a short period, typically no more than 30 days, followed by probation. Shock probation is typically reserved for young, first-time offenders who have committed a relatively serious felony but who are considered redeemable.

Career Video Rennison career video 5.1: Victim Advocate

Split sentences are sentences that require felons to serve brief periods of confinement in a county jail prior to probation placement. Jail time may need to be served all at once or spread over a certain period such as every weekend in jail for the first year of probation placement. This is designed to show offenders that jail is a place to stay away from and thus to convince them that it would be a good idea to abide by all the conditions imposed by the court. Another form of split sentence is work release, whereby a person is consigned to a special portion of the jail on weekends and nights but is released to go to work during the day. Thus, these mainly non-custodial sentences typically mean a probation sentence coupled with certain conditions that must be followed in order to remain in the community. The conditions may involve such things as paying fines, paying restitution, attending drug and/or alcohol treatment programs, doing community service, remaining gainfully employed or be looking for work, and any number of other more specific conditions. These different non-custodial sentences and probation conditions will be discussed more fully in the chapters on probation, parole, and treatment.

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ETHICAL ISSUE

What Would You Do?

You are a prosecutor in a state with a strict three-strikes law. You have been assigned the case of 46-year-old Billy Banks, who has been arrested and

charged with burglary. Billy has two previous felony convictions—one for auto theft and a previous burglary conviction—although you know he has committed many other crimes. Billy shoplifted merchandise worth $145 from a local department store. This amount is low enough to charge Billy with a misdemeanor petty theft, but because he admitted entering the store with the express purpose of shoplifting he was charged with a burglary, which is defined as “the unlawful entry of a structure to commit a felony or theft.” What are the pros and cons of charging Billy under the three-strikes law? And with what crime would you charge him?

VICTIM IMPACT STATEMENTS

In 1982, President Ronald Reagan created the President’s Task Force on Victims of Crime. One of the outcomes of this was the inclusion of victim impact statements (VISs) at sentencing. A victim impact statement allows persons directly affected by the 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. VISs are typically incorporated into PSIs written for the court by probation officers. The opportunity to provide input into the sentencing decision and the recognition that the harm is suffered by individuals, not the state, is considered a valuable aid in the emotional recovery of victims and may even aid the rehabilitation of some defendants by forcing them to confront the harm caused by their actions (Walsh, 1986).

VISs have been challenged as prejudicial and a return to a more conservative punitive stance toward punishment because such statements can lead to sympathy for the victim and hostility toward the defendant (Paternoster & Deise, 2011). However, in Payne v. Tennessee (1991), the U.S. Supreme Court upheld the constitutionality of VIS testimony in the sentencing phase of a trial, and all 50 states now include the use of VISs in the form of written or oral statements at sentencing. But how influential are they in terms of the actual sentence imposed? Overall, the evidence is ambiguous, although in capital cases—where juries rather than judges decide the sentences—they seem to be influential (Paternoster & Deise, 2011). Research in noncapital cases tends to show that VISs actually have little effect on sentencing decisions after accounting for the effects of legally relevant variables (seriousness of crime and prior record) (Walsh, 1986). This sometimes leads to resentment and dissatisfaction with the sentencing process when victims (or their survivors) believed that their recommendations would carry more weight than they did (Meredith & Paquette, 2001).

SENTENCING BY CIVIL COMMITMENT FOR SEX OFFENDERS

The animus that society has toward criminals is nowhere more obvious than in the case of sex offenders. In 1997, the U.S. Supreme Court upheld a Kansas statute (Kansas v. Hendricks, 1997) aimed at keeping sexual predators behind bars under civil commitment laws after they have served their prison terms if they demonstrate “mental abnormality.” The decision paved the way for other states, and for the federal government, to pass similar involuntary commitment laws. Despite being

placed in confinement against one’s will, a civil commitment is not considered punishment in the eyes of the law because it is not a decision rendered in criminal court. Prior to 1990, civil commitments were limited to those individuals said to suffer from mental illness, but to cover sex offenders several states have loosened their criterion for commitment to “mental abnormality” as opposed to “mental illness.”

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The most notorious contemporary example is that of Nushawn Williams (aka Shyteek Johnson). Nushawn was convicted in 1997 of having unprotected sex with numerous girls and women, including a 13-year-old girl, in drugs-for-sex encounters, knowing that he was HIV positive. He was sentenced to 12 years in prison, but at the completion of his sentence the state of New York refused to release him due to its Mental Hygiene Law. In 2013, a jury determined that he was a dangerous sex offender with a mental abnormality and should be detained. In 2014, the New York State Supreme Court ordered that Williams be committed to a secure treatment facility as a sexual predator. According to Dennis Vacco, who was the New York attorney general when the state legislature passed the Mental Hygiene Law, “It was designed to keep the most vicious sexual predators from ever getting back out on the street, and in this instance, I couldn’t think of anybody who is more eligible for the application of this statute than Nushawn Williams” (Ewing & Dudzik, 2014).

Whatever your thoughts are about sex offenders in general, Williams had demonstrated his wanton disregard for others, knowingly infecting his victims with a deadly virus. Such laws have created a category of

individuals defined as “abnormal” who may be punished indefinitely for what they might do if released. Some people consider these laws to be wrong and discriminatory. Others laud them as protecting the public from predatory and dangerous individuals who can almost be guaranteed to offend again if released. What do you think?

PROBLEM-SOLVING COURTS

Problem-solving courts are alternatives to traditional criminal courts that cannot adequately address the problems of offenders with special needs and other issues such as drug, alcohol, domestic violence, and mental health problems. These courts originated during the late 1980s to early 1990s in response to burgeoning rates of incarceration, the financial costs of incarceration, the realization that many offenders needed treatment rather than jail or prison, and the woeful inability of the social services system to provide that treatment. The traditional criminal courts have long seen the same individuals with the same problems recycle through them time after time. Problem-solving courts are designed to address the underlying causes of a person’s antisocial behavior under the assumption that it will cease or diminish with the alleged cause under control. These courts largely suspend the adversarial approach to justice in the interests of achieving a therapeutic outcome. In other words, the judge, prosecutor, and defense attorney are supposed to work together collegially along with treatment specialists and supervising probation/parole officers to achieve a common goal—the rehabilitation of the offender. These courts thus promote outcomes aimed at benefitting offenders, victims, and society as a whole by both saving jail and prison costs and minimizing the

probability of reoffending. Problem-solving courts thus are novel responses to deal with problems that affect the probability of further criminal behavior. According to the Bureau of Justice Assistance (2013), problem-solving courts are characterized by the following:

• Focus on Outcomes: Problem-solving courts are designed to provide positive case outcomes for victims, society, and offenders (e.g., reducing recidivism, creating safer communities).

• System Change: Problem-solving courts promote reform in how the government responds to problems such as drug addiction and mental illness.

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• Judicial Involvement: Judges take a more hands-on approach to addressing problems and changing behaviors of defendants.

• Collaboration: Problem-solving courts work with external parties to achieve certain goals (e.g., developing partnerships with mental health providers).

• Nontraditional Roles: These courts and their personnel take on roles or processes not common in traditional courts. For example, some problem-solving courts are less adversarial than traditional criminal justice processing.

• Screening and Assessment: Use of screening and assessment tools to identify appropriate individuals for these courts is common.

• Early Identification of Potential Candidates: Use of screening and assessment tools to determine a defendant’s eligibility for a problem- solving court usually occurs early in a defendant’s involvement with criminal

justice processing.

We concentrate on drug courts, which are the most prevalent type of problem-solving court, in this chapter.

DRUG COURTS

Drug courts are by far the most common form of problem-solving court in the United States. In response to the growing drug problem, the first drug court was established in Miami– Dade County, Florida, in 1989. Twenty years later, there were 2,037 drug courts active in all 50 states, growth that suggests there is much that is positive about drug courts (Mackin, Lucas, & Lambarth, 2010). A referral to a drug court requires the offender to be involved in an intensive treatment program that lasts 2 years. Participants typically have pled guilty to a nonviolent drug-related felony charge. Under the supervision of the judge, probation officers, and other caseworkers, participants attend counseling groups and 12- step meetings, regularly appear before a judge, and must submit to random urine testing. If a participant successfully completes the program, in nearly all jurisdictions the criminal charges will be dismissed. The U.S. Department of Justice (Ashcroft, Daniels, & Herraiz, 1997) provided the 10-component model presented below for state and county agencies implementing their drug court systems:

1. Drug courts integrate alcohol and other drug treatment services with justice system case processing.

2. Using a non-adversarial approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights.

3. Eligible participants are identified

early and promptly placed in the drug court program.

4. Drug courts provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services.

5. Abstinence is monitored by frequent alcohol and other drug testing.

6. A coordinated strategy governs drug court responses to participants’ compliance.

7. Ongoing judicial interaction with each drug court participant is essential.

8. Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.

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9. Continuing interdisciplinary education promotes effective drug court planning, implementation, and operations.

10. Forging partnerships among drug courts, public agencies, and community-based organizations generates local support and enhances drug court effectiveness.

The drug court processes from arrest to final outcome (either graduation or termination and incarceration) are graphically shown in Figure 5.1 from the Albany, New York, drug court. The first stage of the process is a referral to the drug court, typically from an offender’s attorney. With the receipt of the referral, members of the drug court team review the applicant’s criminal history and police reports relevant to the current offense and other pertinent information. Violent offenders and offenders who have previously committed the same offense or who have failed other treatment programs before will not be accepted into most drug court programs. A

standardized form containing all the gathered information is sent to members of the drug court team for review at a weekly staff meeting. After reviewing a case, members of a drug court team vote to accept or reject an offender’s application. If the offender is accepted into a program, the case is referred to a probation officer, who then performs a prescreening interview. The officer will listen to the defendant and observe his or her behavior and attitudes in order to assess the level of desire to change his or her lifestyle. The officer will provide a rundown of the drug court program and ascertain an offender’s willingness to abide fully with the program’s guidelines in order to achieve sobriety. Most offenders, it should be understood, lack the personal skills associated with success in any endeavor, so the prospect of participating in an arduous treatment program in which they will be held strictly accountable is often daunting to them. Offenders who, by their words and actions, give the impression that they do not take responsibility for their behavior and have no desire to change will not be accepted.

As a result of their frequent interactions during court appearances, it is expected that participants will develop rapport with the judge, who speaks directly to them in an informal way, asking about their progress and either exhorting them to try harder or praising their accomplishments. The judge will also remind them of the obligation to remain drug free and may impose sanctions for ongoing drug use or other behavior that impedes progress toward sobriety. These sanctions may include jail time and/or dismissal from the program, in which case the offender receives the agreed-on prison sentence. The judge will ultimately decide the defendant’s fate— graduation or incarceration.

© iStockphoto.com/dcdebs

PHOTO 5.3: An offender listens to the judge in drug court.

FIGUREFIGURE 5.15.1 Case Flow From Arrest to Court Termination in the Albany, New York, Drug Court

Source: Adapted from Albany County Judicial

Center,

http://albanycountyda.com/Bureaus/RevJohnUMillerOR/CommunityProsecution/drugcourtprocess.aspx

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Graduation from drug court takes place with as much fanfare as a typical college graduation ceremony. Commenting on the graduation of 54 drug, DUI (driving under the influence), and veteran’s treatment court graduates recognized at a ceremony in Tulsa,

Oklahoma, Bland (2014) wrote,

Drug Court saved Clark Dagnall’s life. In return, the 26-year-old Sand Springs resident took the stage at the program’s most recent graduation and promised to pay it forward by helping others. “My goal is just to help the next addict,” he told the crowd of graduates’ friends and family members. “Maybe I can get through to somebody that nobody else could.”

Graduates received certificates of graduation for completing the nearly 2-year program. Bland (2014) also wrote that the graduates who spoke at the ceremony were grateful for the support and guidance they received in the program, and the drug court staff expressed their pride in the graduates. “‘We watch these individuals transform and rise from the ashes,’ said Lawrence Gilbert, Action Steps Counseling program coordinator.”

Note the strong emphasis on interagency cooperation, the provision of services to participants, and the strict monitoring of their behavior. In addition to saving the states many millions of dollars in jail and prison costs, drug courts appear to be quite successful in reducing recidivism. For instance, the Baltimore County Juvenile Drug Court outcome analysis (Mackin et al., 2010) estimated that the program saved the county $8,762 per participant over 24 months because of lower recidivism rates and savings from incarceration. Figure 5.2 provides an illustration of recidivism outcomes for drug court graduates, participants who did not graduate, and the control group consisting of juveniles who fit the criteria for participation. Note that while the likelihood of rearrest increased for all groups over time, the graduates had a lower arrest rate at 24 months

than the control group did at 6 months.

Roman’s (2013) study of drug courts in 29 different U.S. jurisdictions showed that drug court participants were significantly less likely to test positive for drugs than other probationers (29% vs. 46%) and less likely to be rearrested (52% vs. 62%). Roman also noted that the cost per drug court participant was significantly higher per year ($15,326) for drug court participants than for comparison probationers ($7,191), but that was offset by lower costs in other areas such as the costs of further crime and victimization. Overall, the net financial benefit per participant spread over all 29 jurisdictions in Roman’s study was $5,680 compared with control probationers. If there were only 100 participants, this would amount to an average saving of $1,360,000 over 2 years, which is the usual duration of such courts. This is without even considering the emotional costs of criminal victimization. Other studies have found that, compared with traditional probation, drug courts reduce overall recidivism by 12.4% to 13.0% for drug-related recidivism (Mitchell, Wilson, Eggers, & MacKenzie, 2012).

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FIGUREFIGURE 5.25.2 Comparison of Rearrest Rates for Juvenile Drug Court Participants and Nonparticipants at 6 Through 24 Months Post- Admittance

Source: Mackin, J., Lucas, L., & Lambarth, C. (2010).

Baltimore County Juvenile Drug Court outcome and

cost evaluation. Baltimore, MD: NPC Research.

A meta-analysis of 201 different studies (Sevigny, Fuleihan, & Ferdik, 2013) found that drug courts reduce jail and prison incarceration by 32%. Putting this in a nationwide perspective, the researchers reported that this results in 9,911 fewer incarcerations among the estimated 52,777 annual drug court participants across the United States. However, these lower incarceration rates were offset by the longer sentences imposed on participants who fail. Nevertheless, in addition to saving the states many millions of dollars in jail and prison costs, drug courts appear to be quite successful in reducing recidivism.

SENTENCING DISPARITY, LEGITIMATE AND ILLEGITIMATE

Sentencing disparity occurs when there is wide variation in sentences received by different offenders. This disparity is legitimate if it is based on considerations such as crime seriousness and/or prior record, but it is discriminatory if it is not. We think of sentencing disparity as discriminatory if there are differences in punishment in cases in

which no rational justification can be found for them. The biggest concern is racial discrimination. There is no doubt that the American criminal justice system has a dark history of racial discrimination, but does this indictment still apply?

African Americans receive harsher sentences on average than white or Asian American offenders, a fact often seen as racist, but is it? Sentencing variation according to race is reasonable and just if the group being more harshly punished commits more serious crimes and does so more often than other groups, but it is discriminatory and unjust if that group does not. All data sources show that African Americans commit more crime, especially violent crime, than whites or Asians. For instance, the 2016 Uniform Crime Reports (Federal Bureau of Investigation [FBI], 2016) shows that African Americans were overrepresented in arrests for all crimes, especially violent crime, in 2015 except for DUI.

But the question is whether this racial disproportionality in offending is sufficient to account for the disparity in sentencing. One sentencing scholar concluded that it was not: “Racial bias continues to pervade the U.S. criminal justice sentencing system [although] the effects of this bias are somewhat hidden . . . or may even have less to do with the race of the defendant than with the race of the victim” (Kansal, 2005, p. 17). Another scholar concluded the opposite: “Although critics of American race relations may think otherwise, research on sentencing has failed to show a definitive pattern of racial discrimination” (Siegel, 2006, p. 578). Different researchers thus arrive at different conclusions, but there is widespread agreement on one point: The more stringent researchers are in controlling for the effects of

legally relevant variables (crime seriousness and criminal record), the less likely they are to find racial discrimination (Siegel, 2006).

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Sentencing research is complicated and typically reports average effects, among which are multiple interacting variables hiding specifics. Many extralegal factors (including race, ethnicity, and gender) play at least some role in sentencing. For instance, victim characteristics play a role; if the victim is a child, is elderly, has a disability, or is female, the sentence is typically harsher (Hatch & Walsh, 2016). The extent to which victims participate in sentencing via victim impact statements also generally leads to harsher sentences (Haynes, 2011). Political ideology also plays a role, with more conservative “law and order” jurisdictions sentencing more harshly (Ulmer, 2012). Wu and Walsh (2007) found that conservative probation officers recommended harsher sentences (regardless of race) than liberal officers and that judges followed the recommendations of both sets of officers closely. A study of the sentencing practices of 18 Ohio judges found that half of them took no extralegal facts into consideration at all, 5 judges sentenced blacks more leniently, and 4 judges sentenced blacks more harshly (Wooldredge, 2010). The harsh and lenient judges just cancel one another out if researchers look only at the overall record of all judges without examining the record of individual judges.

One study of more than 46,000 federal defendants in 23 states found no evidence of racial bias after controlling for legally relevant variables (Wang & Mears, 2010), although Jordan and Freiburger (2015) maintained that many studies (including their own) continue

to show that minorities are sentenced more severely than whites. So, is there racial discrimination involved in sentencing? The short answer is that it depends on the quality of the data, where you look, how hard you look, and even what you expect to find based on your assumptions.

Table 5.1 shows the average length in months of felony sentences in state courts in 2006 broken down by race and gender (Durose, Farole, & Rosenmerkel, 2010). You can see that black males have longer sentences than white males and that males have longer sentences than females. Also note that for violent offenses white females receive longer sentences than black females. However, no conclusions about racial or gender bias can be drawn from the table because it tells us nothing about how serious each of the crimes was (some robberies, sexual assaults, and assaults are more vicious than others, for instance), nor does it tell us anything about the criminal histories of the men and women represented in the table.

One of the biggest concerns in the sentencing disparity literature is the huge difference in sentencing received by crack possession versus sentences imposed for possession of powder cocaine. Of particular concern was the difference in sentencing imposed on those who used or sold the cheaper crack cocaine, who tended to be minority group offenders, particularly African Americans, versus those who used or sold powder cocaine, which tended to be more expensive and more likely used and trafficked by white offenders. In 1988, Congress passed the Anti-Drug Abuse Act, which established a 100-to-1 quantity ratio differential between powder and crack cocaine. That act also specified that simple possession of crack cocaine was to be treated more seriously than simple possession of

other illegal drugs. According to a U.S. Sentencing Commission Report to Congress in 1995, in 1986 Congress was reacting to media hype about how addictive crack was, with congressional members claiming that crack use was at “epidemic” levels, crack babies were severely impaired, and crime related to crack use was out of control in some cities. African American law professor Randall Kennedy informed us that the Congressional Black Caucus strongly supported the legislation and actually pressed for even tougher penalties (Kennedy, 1998). No one would call black congresspersons anti- black racists. It is more sensible to conclude that they were deeply concerned about how crack was decimating black communities across the country with addiction and bloody turf wars over distribution territories. Nevertheless, at the time of this 1995 report, the U.S. Sentencing Commission (1995) knew that “88.3 percent of the offenders convicted in federal court for crack cocaine distribution in 1993 were Black and 7.1 percent were Hispanic,” and critics were concerned that instead of fair and evenhanded sentences for all, the effect of the Anti-Drug Act was to be unfair and harsh in the sentencing of racial minorities (p. 1).

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TABLETABLE 5.15.1 Average Length of Felony Sentences in 2006 by Offense, Race, and Gender (in months)

Source: Durose, Farole, and Rosenmerkel (2010).

Bureau of Justice Statistics.

Criticisms of the different treatment of people convicted of possession of pharmacologically identical drugs resulting in the increased incarceration of minorities for longer periods of time mounted to the point where Congress needed to do something. In 2009, a Fair Sentencing Act was introduced and passed by Congress and signed into law by President Barack Obama on August 3, 2010. Under the act, the amount of crack cocaine subject to the 5-year minimum sentence is increased from 5 grams 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). Thus, there is still a large sentencing differential between possessors of crack and possessors of powder cocaine. This ratio probably reflects lawmakers’ perceptions that crack is more intimately related to violence (in territorial battles) and to a higher probability of addiction than the powder variety (Leigey & Bachman, 2007).

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STRUCTURING SENTENCING: THE PRESENTENCE INVESTIGATION REPORT

To assist judges in sentencing, a presentence investigation report is commonly used. There are few documents as important to the defendant as the PSI. It is used for many other purposes besides sentencing such as treatment planning, classification to supervision levels in probation/parole departments and prisons, and parole decisions (Walsh & Stohr, 2010). A PSI is usually completed in 30 days or less so that the convicted individual can be sentenced in a timely manner. PSIs are usually written by probation officers informing the judge of various aspects of the offense for which the defendant is being sentenced as well as information about the defendant’s background (educational, family, and employment history), gang ties, substance abuse, character, and criminal history. Because of plea bargaining, judges typically know very little about the circumstances of the offense or the offender. On the basis of this information, officers make recommendations to the court regarding the sentence the offender should receive. Because probation officers enjoy considerable discretionary power relating to how their reports are crafted to be favorable or unfavorable to offenders, many scholars view them as the agents who really determine the sentences that offenders receive (Champion, 2005). Other researchers, however, suggest that the high rate of judicial agreement with officer recommendations reflects an anticipatory effect, whereby officers become adept at “second guessing” a judge’s likely sentence for a given case and recommend accordingly (Durnescu, 2008).

In Focus 5.1 is an example of a (fictional) PSI

containing the usual required information. PSIs come in a variety of sizes, the smallest being a 1- or 2-page short-form report used in misdemeanor cases or less serious “run-of- the-mill” felony cases. For serious or complicated cases, we may see 10- to 15-page reports, although the trend is toward smaller reports. The report given here is an example of a mid-range report used for relatively serious crimes, although the trend is for shorter, more concise reports focusing primarily on legally relevant variables.

PSI CONTROVERSIES

Although the PSI has generally been considered a positive aid to individualized justice, it is not without its problems. Because the future of a defendant depends to a great extent on the content of the report, the information contained therein should be reliable and objective. All pertinent information must be verified by cross- checking with more than one source, and those sources should be reliable. The officer must be careful in the terms he or she uses to describe the offender. The use of phrases such as “morally bankrupt” and “sweet young lady” may reveal more about the officer’s attitudes and values than the defendant’s character.

If you were the subject of a PSI, would you not like to see what was in it so that you could challenge any erroneous information harmful to you contained in it? There have been a number of arguments for and against allowing defendants and their attorneys access to PSIs. It is feared that if victims and other informants from whom the investigating officer has sought information know that the offender will see their comments, they will refuse to offer their information; thus, the judge would not have complete information on which to

make the sentencing decision. However, 16 states currently require full disclosure; other states require disclosure but erase information that may lead to retaliation such as the officer’s recommendation and negative comments from informants. Despite objections and real concerns about confidentiality, the trend is to allow defendants access to their PSIs. For instance, in the federal system, Section 3552 of the U.S. Code states,

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IN FOCUS 5.1

Modern-Day John Howard—Dr.Modern-Day John Howard—Dr. Ken Kerle Example of a PSIKen Kerle Example of a PSI

Gem County Adult Probation Department

Williamstown, Iowa 74812

Name: Joan Place Judge: Franklin Riley

Indictment No.: CR 6742

Probation Officer: James Smith

Age: 28 Attorney: William Paley

Race: white Offense: forgery

Sex: female Conduct (IRC #2908) two counts

Marital Status: divorced

Circumstances of the Offense:

On 8/10/94, Mr. John Smith, security

operative for the Omaha Trust Company (OTC), reported to the police that the defendant cashed forged checks in the amount of $917.00 at various OTC branch banks. These checks were drawn against the account of one Mrs. Patricia DeValera, 4561 Black St. The defendant stole Mrs. DeValera’s checks while employed by her as a nurse’s aide. Mr. Smith also indicated that the defendant cashed forged checks in the amount of $575.00 on the account of Mr. Richard Blane, a former boyfriend of the defendant. The total loss to the Omaha Trust bank is $1,492.00.

Defendant’s Version:

The defendant’s written statement is reproduced verbatim below: “Took checks filled it out in amount I needed for drugs and signed it, forged a name and cashed the checks in Aug. of 1994. No, I did not pay back the person. I was so drug dependent that I took my boyfriends checks, Mrs. Devaleras checks too. All I could live for at the time was heroin and alcohol (mainly beer). I’m sorry I did these things, normally I wouldn’t of forged the checks if I wouldn’t of needed drugs. All I could do was live for drugs. I’ve been threw the withdrawals of drugs when I put myself in the treatment center on Wilson St.” It is noted that the defendant places the blame for her criminal activity on her craving for heroin and alcohol. Her statements of remorse ring rather hollow in light of her new forgery arrest while undergoing presentence investigation. She was arrested on this new charge on 2/22/95 and released on $1,000 bond (10% allowed). Upon learning of this new

arrest, I rearrested her on 2/24/95 and placed her in the county jail, where she has been ever since.

Prior Record:

Juvenile: None known.

Adult:

8-18-94 OPD Forgery, 5 counts, amended to one count: Present Offense

11-6-94 OPD Forgery, 3 counts, pending under CR841234.

2-5-95 OPD Forgery, pending.

Above record reflects juvenile, OPD, BCI, and FBI record checks.

Present Family Status:

The defendant is the fourth of five children born to Ann and Frank Place. Her father passed away in January of 1991. On 6/17/85, the defendant married one James Fillpot. Mr. Fillpot was described as a heavy drug abuser and is now serving a life sentence on an aggravated murder charge (he was convicted of murdering the defendant’s alleged lover). The defendant divorced Mr. Fillpot shortly after his 1989 conviction, and shortly thereafter (6/89), she married one Ralph Burke. Mr. Burke is an alcoholic with an extensive criminal record. After an extremely abusive 2 years of marriage, the defendant’s second marriage ended in divorce on 5/12/92. No children were born to either of these marriages. At the time of her arrest, the defendant was living with her mother at the above listed address.

Approved Respectfully Submitted

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Present Employment or Support:

The defendant is unemployed at the present time and was existing on $76.00 in food stamps at the time of her arrest. She receives no general relief monies. Her last period of employment was as a nurse’s aide for Mrs. DeValera, one of the victims of the present offense. This employment was for the period encompassing March through August, 1993. The defendant’s longest period of employment was with the Red Barron Restaurant, 3957 Laskar Rd, as a waitress from March 1988 through November 1991. This employer has not responded to our request for information as yet.

Health, Physical:

The defendant describes her current physical health as “O.K.” She relates no significant hospitalizations, diseases, or current health problems with the exception of her substance abuse. Her substance abuse is quite extensive. She claims that she has used anywhere from $20 to $300 per day on heroin. Needle marks on her arms attest to her frequent usage. She also relates that she likes to consume 6 to 12 beers per night, which she claims that she receives free from boyfriends. Her substance abuse goes back to her first marriage 13 years ago when Mr. Fillpot introduced her to heroin. Her second husband, Mr. Burke, got her heavily involved in alcohol. She admits that she has experimented with many other drugs, but states that heroin and beer are her drugs of choice. This

officer contacted the Wilson Street Drug Rehabilitation Facility regarding the defendant’s claimed attendance there. It appears that she did voluntarily admit herself there, but left after the first 15- day phase. I also made an effort to get her into the ROAD drug rehabilitation program. However, after two interviews with ROAD personnel, the defendant was denied admission because they thought that her only motive for seeking admission was her current legal difficulties.

Health, Mental:

The defendant is a 1981 graduate of Borah High School. She graduated 287th out of a class of 348. She attained a cumulative GPA of 1.64 on a 4.0 scale. Although no IQ information is available, the defendant impresses as functioning well within the average range of intelligence as gauged by her written and verbal statements. She did indicate that she was easily led and that she does not think much of herself. Her choice of marriage partners (both very abusive to her) and her current boyfriends give the impression that she is attracted to men who will verify her low opinion of herself.

Statutory Penalty:

N.R.C. 2913.31

Forgery “shall be imprisoned for a period of 6 months, 1 year, or 1 and one-half years and/or fined up to $2,500.”

Evaluative Summary:

Before the court is a 28-year-old woman

facing her first felony conviction. However, she has numerous other forgery charges pending at this time. There would seem to be little doubt that the genesis of her criminal activity is her severe abuse of alcohol and drugs. She also appears to possess a low concept of herself as indicated by her very poor choice of marriage partners, both of whom were serious substance abusers and both of whom were physically abusive to her. She appears to be intimately involved in the drug subculture. I initiated the procedure to get the defendant admitted to the ROAD residential drug treatment center. However, after conducting two interviews with the defendant, personnel from the ROAD decided that her motivation for seeking treatment was her current legal difficulties and thus her application was denied. They did indicate that they would reconsider her application after the disposition of the present offense. Therefore, I recommend that the defendant be placed on probation, ordered to pay complete restitution, and to pursue entry into the ROAD. It is also recommended that she remain in the county jail after sentencing to reinitiate her application with ROAD.

Approved Respectfully Submitted

________________ _______________________

James F. Collins Joyce Williams

Unit Supervisor Probation Officer

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ETHICAL ISSUE

What Would You Do?

You are a probation officer writing a PSI on 29-year-old Robert Jackson, who was arrested for carrying a concealed weapon (CCW). Robert is very concerned about his arrest and fears going to jail, losing his job, and not being able to support his wife and two children. At the conclusion of the PSI interview, he shakes hands with you and passes on a $100 bill. Would you report this attempted bribe and make matters worse for Robert, or would you return the money with a stern lecture and then forget about it?

The court shall assure that a report filed pursuant to this section is disclosed to the defendant, the counsel for the defendant, and the attorney for the Government at least ten days prior to the date set for sentencing, unless this minimum period is waived by the defendant. The court shall provide a copy of the presentence report to the attorney for the Government to use in collecting an assessment, criminal fine, forfeiture or restitution imposed.

In the federal system and in some state systems, probation/parole officers no longer write PSIs. Rather, they merely complete sentencing guidelines and certain other assessment tools and calculate the presumed sentence (Abadinsky, 2009). This and a number of other factors may be signaling a

move away from individualized justice (the idea that punishment should be tailored to the individual and be consistent with rehabilitation) and back to the classical idea discussed in Chapter 1 that the punishment should fit the crime and serve as a retributive or deterrent factor.

STRUCTURED SENTENCING: SENTENCING GUIDELINES

We saw in Chapter 1 that a major concern of the Classical School of criminal justice was to make the law more fair and equal by removing a great deal of judicial discretion and providing standards set by the legislature for making punishment for equal crimes standard. Prior to 1984, federal judges enjoyed nearly unlimited sentencing discretion as long as they stayed within the statutory maximum penalties. This led to a lot of criticism regarding sentencing disparities and moved Congress to establish the U.S. Sentencing Commission. This commission was charged with the task of creating mandatory sentencing guidelines to rein in judicial discretion (Reynolds, 2009). Sentencing guidelines are forms containing scales with a set of rules for numerically computing sentences that offenders should receive based on the crime(s) they committed and on their criminal record.

Guidelines are devised by federal or state sentencing commissions and provide classifications of suggested punishments based on an offender’s scores on those scales. Because guidelines are a set of rules and principles that are supposed to decide a defendant’s sentence, they curtail the discretionary powers of judges, as was intended by Congress. Most people view this

as a good thing because unbridled discretion can lead to wide sentencing disparities based only on a judge’s subjective evaluations and whims. At one extreme we might get “hanging” judges, and at the other end we might get “bleeding heart” judges, so a defendant’s fate may depend largely on the temperament or ideology of the judge by whom he or she has the good luck or bad fortune to be sentenced.

Guidelines thus provide structured predictability to criminal sanctions by taking Aristotle’s definition of justice (“treating equals equally and unequals unequally according to relevant differences”) and assigning numbers to these relevant differences. The sample guideline in Figure 5.3 illustrates how numbers are assigned to various aspects of a case that are considered relevant to sentencing. The guidelines used by the federal government and some states limit themselves to crime seriousness and prior record, while others are more comprehensive and assign points not only for the statutory degree of seriousness of the offense and prior record but also for the amount of harm done; whether the offender was on bail, probation, or parole at the time; prior periods of incarceration; and a number of other factors. These numbers are then applied to a grid at the point at which they intersect, which contains the appropriate sentence.

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FIGUREFIGURE 5.35.3 Continuum of State Sentencing Guidelines

Source: National Center for State Courts (2008).

Given the usefulness of guidelines, it is unfortunate that not all states use them and that, among the states that do, they vary greatly in quality. In 2008, the National Center for State Courts (NCSC, 2008) evaluated the guidelines in all 21 states that use them and assigned them points based on a number of criteria. The most important of these criteria were whether or not the guidelines were voluntary or mandatory, whether or not compelling and substantial reasons were required for departures from guideline sentences, and whether or not written reasons must be provided for any such departures. The NCSC then ranked each state’s guidelines from most voluntary (judges need not follow them) to more mandatory (there is a presumption that judges will abide by them). Figure 5.3 presents the NCSC’s evaluation of the guidelines of the 21 states that had them in 2008 on a continuum from most voluntary to most mandatory.

Although guidelines were mandatory in the federal system for many years after their creation, currently they are only advisory. By mandatory, we mean that the sentences indicated by the guidelines must be imposed unless there are compelling reasons for not following them. Advisory guidelines are used simply to guide the judges’ decisions by providing a uniform set of standards for them to consult if they wish. According to Lubitz and Ross (2001), sentencing guidelines have achieved a number of outcomes consistent with this classical ideal and with Aristotle’s definition of justice. These outcomes include the following:

1. A reduction in sentencing disparity.

2. More uniform and consistent sentencing.

3. A more open and understandable sentencing process.

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

5. Aid in prioritizing and allocating correctional resources.

6. Provision of a rational basis for sentencing and increased judicial accountability.

Figure 5.4 is a sentencing guideline that takes into consideration many more factors than the seriousness of the offense and prior record and leaves quite a bit of room for subjective judgment, especially in the culpability, mitigation, and credits section. How would you complete this guideline for the Joan Place case outlined in our sample PSI (In Focus 5.1)? What degree of culpability/mitigation would you assign her, and what credits would you give her?

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FIGUREFIGURE 5.45.4 Example of a Comprehensive Sentencing Guideline

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Indicated Sentence:

Circle the box on the chart where the offense and the offender ratings determined on the previous page intersect. This indicates a normal sentencing package. If the indicated sentence appears too severe or too lenient for the particular case, do not hesitate to vary from the indicated sentence. In that event, however, list the reasons for the variance in the space provided on the next page.

Source: Ohio Bar Association.

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PERSPECTIVE FROM A PRACTITIONER

Laura Kiehl, Presentence Investigator

Position: Presentence Investigator

Location: Boise, Idaho

Education: Boise State University, B.A. in sociology, minor in English. In progress—Master of Arts in criminal justice

The primary duties and responsibilities of a presentence investigator are:

The goal of the presentence investigator is to provide the court with a depiction of a criminal defendant once he or she has been found guilty of a felony offense. My goal is not only to document the defendant’s version of the crime he or she committed but also to provide the court with an outline of who that person is as an individual. This information comes from a one-on-one interview with the defendant as well as from collateral contacts made with friends, family, employers, educators, and medical professionals. With this information, I prepare a PSI for the sentencing judge that contains information pertaining to the instant offense, criminal history, family/social history, educational background, employment history, and medical and substance abuse history and document the defendant’s goals for the future. I also provide the court with a recommendation for sentencing. The recommendation includes my perception of the criminal defendant based on my interactions with him or her as well as my contacts with collateral sources. There are three main options for recommendations: probation; rider (retained jurisdiction— meaning that the offender will spend a short time, typically 90 days, in prison

followed by probation); and prison. Within the three recommendations, I add specific treatment/programming guidelines that might benefit the defendant. The recommendations I make are based on the defendant’s risk factors and criminal history combined with any additional concerning or protective factors I have determined through the investigative process.

One of the most important traits for someone to have as a presentence investigator is a desire to get to know people. The saying “You catch more flies with honey than with vinegar” goes a long way in this line of work. The defendant has already been convicted, and therefore it is not the job of the presentence investigator to interrogate. I find that my best interviews, which have gained the most information valuable to the court, were interviews where I made the defendants feel comfortable and feel that they could trust me to tell their stories in a fair and honest manner. An investigative mind is also beneficial as learning to “dig” for information is part of what makes this job fun and interesting on a day-to-day basis.

In general, a typical day for a presentence investigator includes:

My work days vary a great deal. We work a flexible schedule and are required to be in the office only 20 hours per week. One reason for the flexible schedule is due to our need to be at the jails or prisons in order to conduct interviews with defendants who are in custody awaiting sentencing. We are also able to type our reports from

home or wherever we work best. Some days I will start at the office, go to the jail for an interview, and spend the rest of my day typing from home with my dog sitting beside me. Other days I will be in the office all day for out-of- custody interviews and making collateral contacts. Some days I have writer’s block and take the day off, knowing that I will be more productive on a different day. The flexibility has allowed me to be more productive on a day-to-day basis.

My advice to someone either wishing to study, or now studying, criminal justice to become a practitioner in this career field would be:

If you want to be a presentence investigator, hone your writing skills. Ultimately, while this job is investigative in nature, the report should be the main focus and needs to be well written and detailed. Reports can take between 10 and 12 hours (or more) to complete. Also, you cannot be afraid to ask questions. I have heard some of the craziest stories from criminal defendants, some of which were extremely uncomfortable to hear. Defendants willing to open up and provide details about their lives need an investigator who is not afraid to keep asking questions. Be ready to be surprised on a daily basis! This job is never boring and is different and challenging every day with every different case.

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IN FOCUS 5.2

IN FOCUS 5.2

Policy Statement of the American Correctional Association Regarding Sentencing

Because of changing sentencing policies (determinate, mandatory minimums, and particularly the policies driven by the “War on Drugs”), there has been a huge increase in the prison population in the United States. According to the American Correctional Association (ACA), sentencing policies should be aimed at controlling crime at the lowest cost to taxpayers, and offenders should be placed in the least restrictive environment consistent with public safety. The ACA strongly promotes and supports any policies that render sentencing fair and rational and has issued its 2009 official statement on sentencing policy reproduced below.

The American Correctional Association actively promotes the development of sentencing policies that should

A. Be based on the principle of proportionality. The sentence imposed should be commensurate with the seriousness of the crime and the harm done;

B. Be impartial with regard to race, ethnicity, and economic status as to the discretion exercised in sentencing;

C. Include a broad range of options for custody, supervision, and rehabilitation of offenders;

D. Be purpose-driven. Policies must be based on clearly articulated purposes. They should be grounded

in knowledge of the relative effectiveness of the various sanctions imposed in attempts to achieve these purposes;

E. Encourage the evaluation of sentencing policy on an ongoing basis. The various sanctions should be monitored to determine their relative effectiveness based on the purpose(s) they are intended to have. Likewise, monitoring should take place to ensure that the sanctions are not applied based on race, ethnicity, or economic status;

F. Recognize that the criminal sentence must be based on multiple criteria, including the harm done to the victim, past criminal history, the need to protect the public, and the opportunity to provide programs for offenders as a means of reducing the risk for future crime;

G. Provide the framework to guide and control discretion according to established criteria and within appropriate limits and allow for recognition of individual needs;

H. Have as a major purpose restorative justice—righting the harm done to the victim and the community. The restorative focus should be both process and substantively oriented. The victim or his or her representative should be included in the “justice” process. The sentencing procedure should address the needs of the victim, including his or her need to be heard and, as much as possible, to be and feel restored to whole again;

I. Promote the use of community- based programs whenever consistent with public safety; and

J. Be linked to the resources needed to implement the policy. The consequential cost of various sanctions should be assessed. Sentencing policy should not be enacted without the benefit of a fiscal-impact analysis. Resource allocations should be linked to sentencing policy so as to ensure adequate funding of all sanctions, including total confinement and the broad range of intermediate sanction and community-based programs needed to implement those policies.

This Public Correctional Policy was unanimously ratified by the American Correctional Association Delegate Assembly at the Congress of Correction in St. Louis, August 10, 1994. It was last reviewed and affirmed at the 2014 Winter Conference in Tampa, FL, February 4, 2014.

Source: Reprinted with permission of the

American Correctional Association,

Alexandria, VA.

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THE FUTURE OF SENTENCING GUIDELINES

As useful as guidelines have proven to be for reducing sentencing disparity and curtailing judicial discretion, their future format and function are by no means ensured. As mentioned above, the federal guidelines are now only “advisory,” meaning that judges can consult them and follow them or not, which

has opened the door once again to unwarranted sentencing discrepancies that guidelines were supposed to rein in. The turnabout began with the recognition of the separation of responsibilities of the trial judge and the trial jury. The role of judges is to be finders of law; the role of juries is to be finders of facts. A famous case based on that principle came before the U.S. Supreme Court in 2005 (United States v. Booker, 2005).

The circumstances of the case are that Freddie Booker was arrested in 2003 in possession of 92.5 grams of crack cocaine. He also admitted to police that he had sold an additional 566 grams. A jury found Booker guilty of possession with intent to sell at least 50 grams, for which the possible penalty ranged from 10 years to life. At sentencing, the judge used additional information (the additional 566 grams and the fact that Booker had obstructed justice) to sentence Booker to 30 years. Booker’s sentence would have been 21 years and 10 months based on the facts presented to the jury and proved beyond a reasonable doubt.

Booker appealed his sentence, arguing that his Sixth Amendment rights had been violated by the judge “finding facts” when that is the proper role of the jury. An earlier federal appeals court had ruled that the facts of prior convictions are the only facts judges can “find” as justification for increasing sentencing. In other words, anything other than prior record that is used to increase a criminal penalty beyond what the guidelines call for must be submitted to a jury and proved beyond a reasonable doubt. The Supreme Court agreed with Booker that his sentence violated the Sixth Amendment and sent the case back to district court with instructions either to sentence Booker within the sentencing range supported by the jury’s

Sentencing in Comparison Countries

findings or to hold a sentencing hearing before a jury (Bissonnette, 2006).

The remedial portion of the Supreme Court’s opinion (what can be done to prevent this from happening again?) is much more controversial. The Court held that the guidelines were to be advisory only and therefore no longer binding on judges. However, the Court did require judges to “consult” the guidelines and take them into consideration, but there is no way of ensuring that judges comply. John Ashcroft, the U.S. Attorney General at the time, called the decision “a retreat from justice,” and Congressman Tom Feeney decried that “the extraordinary power to sentence” was now afforded to federal judges who are accountable to no one and that the decision “flies in the face of the clear will of Congress” (Bissonnette, 2006, p. 1499). In fact, Booker was resentenced by the same judge to the same 30-year sentence that he originally received. Because the sentencing guidelines had then become merely advisory, the judge did not need to further justify his sentence because it was within the range of the statutorily defined penalty. The Court’s ruling on guidelines currently applies only to the federal system.

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COMPARATIVE PERSPECTIVE

Sentencing in our four major comparison countries differs radically. The most brutal sentences are handed out in Saudi Arabia. Sentences are fixed and unalterable for crimes called hudud crimes because they are

considered crimes against God as outlined in the Koran. These crimes (and their penalties) are adultery (death), fornication (whipping—80 lashes), false accusation of any of the foregoing crimes (whipping—100 lashes), alcohol consumption (whipping—varies; death is possible after a third offense), apostasy— conversion from Islam to some other faith (death), theft (amputation of hand), and robbery (amputation of alternate side hand and foot). Saudi criminal courts are religious courts, and judges have practically free rein in sentencing in non- hudud crimes and do not follow any uniform legalistic guidelines.

For crimes known as qisas crimes, the penalties are imposed in a literal “eye for an eye, and a tooth for a tooth” fashion but can be forgiven on the payment of “blood money” to the victim or the victim’s survivors. For instance, a 14- year-old was sentenced to be surgically paralyzed because he had stabbed and paralyzed a companion in a fight. However, the boy’s mother was able to raise enough blood money to spare him that fate (Knowles, 2013). The least serious crimes under Islamic law are called ta’zir (rehabilitation) crimes, which include consumption of pork, bribery, provocative dress, wifely disobedience, and traffic offenses. Penalties for these offenses are entirely discretionary and may include a dressing down by the judge, a short prison sentence, or some form of light corporal punishment, but sometimes a death sentence can be imposed (Walsh & Hemmens, 2014).

China is definitely tough on crime, albeit more lenient than Saudi Arabia. Chinese

sentences are classified as community control, criminal detention, fixed-term imprisonment, life imprisonment, and the death penalty. Community control is imposed for minor offenses and is analogous to probation. Offenders under control continue to work but are continually under surveillance by the police and under the informal control of neighborhood committees.

Criminal detention is analogous to a jail sentence in the United States where offenders are sent to jail for a short time for committing relatively minor crimes. Offenders may be granted permission to go home 1 or 2 days each month and may be paid for work, which makes the sentence like a work release sentence in the United States. Fixed-term imprisonment ranges from 6 months to 15 years, and the step after that is life imprisonment. Individuals sentenced to fixed-term or life imprisonment are subjected to long periods of hard labor as long as they are physically able. The most serious sentence is one of death; we will discuss this in a later chapter.

In 2008, the Chinese courts introduced sentencing guidelines with the intention of introducing uniformity in sentencing. These guidelines contain the same criteria for determining sentences as do American guidelines and are mandatory (judges must follow them). Curiously, for the harshest of sentences—life imprisonment and death—judges retain full sentencing discretion (Chen, 2010).

Before its exit from the European Union (EU), the United Kingdom was bound by the EU Charter of Fundamental Rights, which demands “proportionality” in

criminal sentencing (Albers et al., 2013). However, national governments retain a margin of discretion in such matters, and the United Kingdom now has full control over its own penal policies. There are four types of sentences in England and Wales: discharge, fines, probation, and prison. Sentences depend on whether the offenses were indictable or summary offenses, which are analogous to the felony/misdemeanor distinction in the United States. A convicted person may be discharged conditionally or absolutely for minor offenses if the court decides not to impose any punishment. Fines are the most common sentence imposed in magistrates’ courts (analogous to municipal courts that deal with misdemeanors in the United States). Prison sentences for serious offenses are of fixed terms from 1 year to life and are passed down by the Crown Courts (analogous to U.S. district courts). There is no death penalty in the United Kingdom. The courts in England and Wales use a grid-based guideline much like those in fashion in the United States, and Parliament has mandated that the “courts ‘must follow’ definitive guidelines rather than merely ‘have regard to’ them” (Roberts, 2011, p. 997). PSIs are also written for cases in which probation or prison is being considered.

According to the official French government website (Service Public Francaise, 2013), offenses in France are divided into crimes, délits, and contraventions. Crimes are the most serious offenses. They are tried in assize court with judges and juries and are punishable by 15 to 30 years in prison or, in exceptional cases, for life. Examples of crimes are murder and rape. A délit is

an offense punishable by imprisonment from 2 months to 10 years and is tried in a correctional court. Although délits are classified as “second-tier” crimes, they are very serious offenses such as robbery, aggravated assault, and sexual assault. Délits can become crimes with aggravating circumstances. Contraventions are minor offenses tried in police courts and punishable only by fines up to 3,000 euros (about $4,000). There is no death penalty in France.

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Because the termination of a French trial results simultaneously in a verdict and a sentence, a PSI is not necessary. All the information typically included in a PSI is already known to the sentencing panel (typically, three professional judges and nine laypersons) because the investigatory process in France is more thorough than in the Anglo-American common law tradition; thus, the character of the defendant and all the relevant personal information regarding his or her background is well known (Walsh & Hemmens, 2014). Nor are there sentencing guidelines other than statutory penalties, leaving judges with excessive discretion that can lead to serious inequalities in sentencing (Padfield, 2011).

SUMMARY

• Sentencing is a post-conviction process in which the courts

implement one or more of the punitive philosophies: retribution, deterrence, incapacitation, or rehabilitation. Sentencing decisions should be in accordance with justice.

• There are three major sentencing models: indeterminate (a range of possible years), determinate (a specific number of years), and mandatory (can exist under either of the above models but means that the person must be sent to prison; probation is not an option). Sentencing to a drug court is becoming increasingly popular in the United States.

• Truth-in-sentencing laws have led to longer sentences, a stronger move to determinate and mandatory sentencing, and to statutes such as habitual offender statutes.

• Sentencing disparity—sentences not accounted for by legally relevant variables—is a major concern in the criminal justice system. A big concern is whether African Americans’ more severe sentences are accounted for by their greater involvement in crime or by racism. The sentences imposed for crack versus powder cocaine possession have been a contentious issue because of racial differentials in the possession and sale of crack versus cocaine.

• Efforts have been made to “individualize” justice by providing judges with presentence investigation reports, written by probation officers, that contain many factors about the people the

judges are to sentence. A big controversy involving these reports is whether the defense should be able to view them.

• Sentencing guidelines are designed to eliminate sentencing disparity by submitting a person’s crime seriousness and prior record (in some states additional information is included) to a scoring system. The person is then supposed to be sentenced the same way as every other person who receives the same score.

• Certain legal problems with sentencing under guidelines moved the U.S. Supreme Court to rule that the federal guidelines, which were previously mandatory, were now to be merely advisory. This opened up the door once again for wide levels of judicial discretion and thus for sentencing disparity.

KEY TERMS

Concurrent sentence, 84

Consecutive sentence, 84

Determinate sentence, 84

Drug court, 88

Fair Sentencing Act of 2010, 93

Habitual offender statutes, 84

Indeterminate sentence, 83

Justice, 82

Life without parole (LWOP), 85

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Mandatory sentence, 84

Presentence investigation report, 94

Problem-solving courts, 87

Sentence, 82

Sentencing disparity, 91

Sentencing guidelines, 97

Shock probation, 85

Split sentences, 85

Truth-in-sentencing laws, 83

U.S. Sentencing Commission, 97

Victim impact statement, 86

DISCUSSION QUESTIONS

1. Is it ever just, right, and moral to sentence equals in terms of legally relevant variables unequally? Give an example.

2. If you are being sentenced for a felony, would you prefer to know when your date for parole consideration is to come, or would you prefer an indeterminate sentence where you could possibly “work your way out” and get released earlier?

3. What is your opinion of habitual offender statutes that lock people up for life if convicted of a third felony?

4. What research strategy is required to assess the racial sentencing disparity issue?

5. What are the pros and cons of allowing the defense access to the

presentence investigation report? Where do you stand on the issue?

6. Sentencing guidelines were designed to rein in excessive judicial sentencing discretion, and most criminal justice personnel consider this a very good thing. Why did the U.S. Supreme Court throw a wrench into the works by making the federal guidelines advisory only?

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Journal Article 5.1 Race, Ethnicity, and Habitual-Offender Sentencing

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