Corrections-criminology

Although some legislative body typically creates sentence type and length, the sentencing process rests in the hands of a number of actors, nested within the court system, who use their power and discretion to shape the administration of criminal punishments. Choosing the “correct” sentence is a complex decision. Why we punish, how we punish, and whom we punish are concepts that are constantly shifting, reflecting the social, economic, and political realities of the time. Who makes these decisions and what guides their judgments?

Prosecutors

A member of the practicing bar, prosecutors are typically appointed or elected officials who are responsible for bringing the state’s case against the accused. They focus the power of the state on those who disobey the law by charging them with a crime and eventually bringing them to trial or, conversely, releasing them after deciding that the evidence at hand does not constitute proof of a crime.

Although prosecutors’ primary duty is to enforce the criminal law, their fundamental obligation as attorneys is to seek justice as well as convict those who are guilty. If, for example, a prosecutor discovers facts suggesting that the accused is innocent, he or she must bring this information to the attention of the court. In recent years, because sentences have become so harsh, prosecutors have gained greater leverage to ex-tract guilty pleas from defendants and, as a result, reduce the number of cases that go to trial. New laws have resulted in giving prosecutors more power in the courtroom.

Defendants can choose to have their day in court, but they risk facing a judge and jury who may place them in prison for more years, sometimes far more years, than the plea bargain they were offered. In some courtrooms, the increased use of the plea bargain has nearly put the trial system out of business. In 1970, about one in 12 cases made it to trial; today, fewer than one in 40 felony cases are tried in court. The decline has been steeper in federal courts.

The Florida v. Shane Guthrie case illustrates why plea-bargaining has become the norm. In this case, Guthrie, 24, was arrested and accused of beating his girlfriend and threatening her with a knife. The prosecutor offered him a deal of two years in prison plus probation. Guthrie rejected this and a later offer of five years, because he believed he was not guilty. The prosecutor’s response was severe. He filed a more serious change that would mean life imprisonment if Guthrie were convicted, and the sentence would be mandatory. Guthrie eventually wound up serving two years before being released in 2014. What has taken place is a transfer of power from judges to prosecutors that has undercut the formal court process with a more informal system shaped by backroom deals and agreements.

Judges

Senior officers in a court of criminal law, judges’ duties are quite varied and are far more extensive than average citizens might suspect. During trials, judges’ rule on the appropriateness of conduct, settle questions of evidence and procedure, and guide the questioning of witnesses. When a jury trial occurs, judges must instruct jury members on which evidence can be examined and which should be ignored. Judges also formally charge the jury by instructing members on what points of law and evidence they must consider before reaching a decision of guilty or innocent. When a jury trial is waived, a judge must decide whether the defendant is guilty. Finally, and most importantly for our purposes, upon a guilty finding, judges decide on the sentence. This duty includes choosing the type of sentence, its length, and—in the case of probation—the conditions under which it may be revoked. Even where sentences are legislatively determined, a judge can sometimes use his or her discretion to lighten the defendant’s burden. Obviously, this decision has a significant effect on an offender’s future.

The public’s expectations of a judge’s role contain several erroneous assumptions. It is often assumed that a judge is in isolation from the political and social pressures that appear to dominate other public officials; that the judge is always a neutral arbitrator; that the judge carefully follows the statutory and legal prescriptions applicable to the case and is not swayed by personal opinion; and that the judge dominates the criminal justice system, from arrest through sentencing. Judges’ actual behavior represents a blend of the duties they are expected to perform, the public’s expectations and influence, tradition, political pressure, and the realities and pressures of their jobs.

Many judges are elected officials and are aware that unpopular sentences may result in their being voted out of office. Some may have a particular value or bias that shapes their approach to punishment. A judge who holds religious beliefs about sobriety may have little regard for people who drink and be especially harsh on alcoholics who commit crime. Others may have greater sympathy for those with mental handicaps and feel compelled to grant them more lenient sentences.

Probation Staff

Before sentencing takes place in felony cases, it is common for the court’s probation staff to conduct a presentence investigation. An inquiry, performed by a probation officer attached to a trial court, contains information about the defendant’s background, prior criminal record, education, previous employment, and family. The defendant may be interviewed, and interviews also may be conducted with neighbors, acquaintances, and employers. Treatment staff may be asked to evaluate the defendant’s mental and/or physical condition. The report may contain information that would be inadmissible as evidence at a trial but is influential and important at the sentencing stage.

This presentence investigation serves as the basis for sentencing and has a significant influence on whether the convicted defendant will be granted community release or be sentenced to secure confinement. In the event that the offender is placed on probation, the investigation becomes useful as a tool to shape treatment and supervision efforts.

The pretrial officer is related to probation services but serves the primary purpose of recommending defendants who are eligible for pretrial release.

Bail

Bail bond is a money bond levied to ensure the return of a criminal defendant for trial, allowing the defendant to remain in the community prior to trial. The Eighth Amendment to the U.S. Constitution mandates that criminal defendants, except those who commit capital crimes (for example, murder), are entitled to bail that is not “excessive.” The Eighth Amendment restriction on excessive bail may also be interpreted to mean that the purpose of bail is to ensure that defendants return for trial; bail may not be used as a form of punishment, nor may it be used to coerce or threaten defendants.

Defendants who abscond and do not show up for trial forfeit their bail. Those people who cannot afford to put up bail or who cannot borrow sufficient funds from a bail bondsman to meet bail requirements remain in state custody prior to trial. In most instances, this means an extended stay in a county jail or house of correction. If defendants are stable members of the community and have committed nonviolent crimes, they may be released on their own recognizance, a promise to the court to return for trial without bail having been posted.

The amount and eligibility for bail is generally considered at a hearing conducted shortly after a defendant has been taken into custody. At this hearing, the judge considers such issues as whether the defendant is a flight risk or is dangerous before setting bail. A decision must be made whether to set bail so high that the defendant remains in custody, to set a reasonable bail, or to release the defendant on his or her own recognizance with-out requiring any bail at all. Each of these decisions can have a critical effect on the defendant, the justice system, and society. If an error is made, an innocent person may suffer or a dangerous individual may be released to continue to prey upon society. Those who are unable to post bond or receive pretrial diversion must remain in jail until their trial. The average delay between arrest and trial is more than six months. Half of all detainees being held in jail are misdemeanants who could not make bail.

Pretrial Release

For those defendants unable to make cash bail, pretrial alternatives to jail include release on own recognizance (ROR), unsecured bail, percentage bail, third-party custody, signature bail, and supervised release.

Imposing the Sentence

The sentence is usually imposed by the judge, but sentencing may also be exercised by a jury or may be mandated by statute, such as mandatory prison sentences for certain crimes.16 In the majority of felony cases, excluding required mandatory prison terms, sentencing is generally based on the information available to a judge. Some jurisdictions permit victims to make impact statements that receive consideration at the sentencing hearing. Most judges also consider a presentence investigation report prepared by a probation officer in making the sentencing decision. The report is based on a social and personal history of the defendant, including the defendant’s prognosis of successful integration into the community. Some judges give this report greater weight than others.

Concurrent versus Consecutive Sentences

A person who is convicted of two or more charges must receive a sentence on each charge. Concurrent sentence means that multiple sentences begin on the same day and are com-pleted when the longest term has been served. In contrast, consecutive sentence means that on completing the sentence for one crime, the offender begins serving time for the second of what may be multiple crimes. Concurrent sentences are usually the norm, but consecutive sentences are requested for the most serious of-fenders and for those who refuse to cooperate with authorities. Figure 2.1 shows the difference between consecutive and concurrent sentences.