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CHAPTER 9
Sentencing

Introduction

  • James Q. Wilson: “wicked people exist”
  • Set them apart through imprisonment

  • Thomas Hobbes: “in revenge and punishments men ought not to look at the greatness of evil past, but at the greatness of the good to follow”
  • Sentencing should deter offenders

Goals of Sentencing

  • Many reasons for imposing sanctions, may be contradictory
  • Retribution
  • Deterrence
  • Incapacitation
  • Rehabilitation
  • Restoration

  • Reasons not mutually exclusive, often overlap

Retribution

  • Reflects society’s moral outrage at or disapproval of a crime

  • Focus on crime, not individual

  • Sentence proportionate to crime; balance harm caused by offender

Deterrence

  • People are rational beings with free will who prefer pleasure over pain
  • People weigh the benefits and cost of future actions before deciding to act
  • Choose crime when benefits exceed costs

  • Types of deterrence
  • Specific deterrence: aimed at individual offenders
  • General deterrence: aimed at potential offenders

Incapacitation

  • Removal of offenders from the community through imprisonment or banishment

  • Form of specific deterrence; prevents offenders from committing future crimes

  • Selective incapacitation; focus on high-rate and dangerous career criminals

Rehabilitation

  • Reforming an offender to become a productive member of society through treatment, education, or counseling

  • Dominant philosophy during period of 1940s through the 1970s

  • Identify causes of criminality, determine treatment likely to prevent reoffending

Proportionality

  • Fairness: making the punishment fit the crime

  • Ultimate determination of proportionality made by Supreme Court

Types of Sentences

  • Primarily linked to particular offenses

  • Specified by state and federal criminal codes

  • Judges have wide range of sentencing options

Intermediate Sentences

  • Intermittent incarceration

  • Intense probation supervision

  • Fines
  • Community service

  • Restitution

  • Forfeiture

Indeterminate Prison Sentences

  • Establishes minimum and maximum number of years to be served

  • Actual time for release determined by a parole board

Determinate or Structured Prison Sentences

  • Fixed terms of imprisonment

  • Emerged as a result of the sentencing reform movement in the 1970s

  • Goals
  • Eliminate sentencing disparities
  • Create system of uniform sentences
  • Redistribute time served in prison

Presumptive Sentencing

  • Range of minimum and maximum terms of incarceration

  • Judge determines specific number of years served within range

  • May depart from presumptive sentence if aggravating or mitigating factors exist

Sentencing Guidelines

  • Limit judge’s discretion to impose disparate sentences for similar offenders

  • Deemphasize rehabilitation as a primary goal in sentencing

  • Guidelines direct judge to determine sentence by weighing offender’s criminal history against severity of current offense

Mandatory Sentences

  • Require imprisonment of offenders who are convicted of certain types of serious crimes

  • Mandatory minimum sentences established enhanced prison terms for particular crimes

Habitual Offender Statutes

  • Three-strikes laws

  • Require longer sentences for offenders convicted of a third violent felony

  • Unintended consequences
  • Positive association with homicide rates
  • Disproportionately harsh effects on African Americans

Truth in Sentencing

  • Require that offenders and especially violent offenders serve at least 85% of their sentences

  • Establish closer correspondence between judicially imposed sentences and actual time served in prison

Concurrent and Consecutive Sentences

  • Concurrent sentences
  • Multiple sentences served at the same time

  • Consecutive sentences
  • Multiple sentences served one after another

Arriving at an Appropriate Sentence

  • Sentencing a difficult decision for judges

  • Consider three interrelated questions
  • What are the appropriate goals of sentencing and how should they be weighed?
  • How can sentencing goals be achieved under the circumstances of the case?
  • What specific sentence is justified given facts of the case?

The Presentence Investigation Report (PSI)

  • Widely believed to be the cornerstone of sentencing decisions

  • Comprehensive report on offender background, offense, other relevant information

  • Helps the court understand the nature of the crime within the context of the offender’s life

  • Based on interviews with offender, family members, employers, friends, police reports, victim statements

The Sentencing Hearing

  • Felony sentencing takes place at sentencing hearing

  • Offender may deny, explain, add to information in PSI report

  • Prosecutor may make sentence recommendations

  • Bifurcated trial required in sentencing of offenders convicted of capital crimes

Role of the Victim in Sentencing

  • Victims permitted to submit victim impact statements (VIS); oral or written

  • Justifications for VIS at sentencing

  • Criticisms of VIS

Disparity and Discrimination in Sentencing

  • Determinate sentencing reduces sentencing disparity but does not eliminate it

  • Sentencing disparities occur when similar cases are sentenced differently

  • Sentencing discrimination exists when illegitimate morally objectionable or extralegal factors are taken into account in the sentencing decisions

Disparity and Discrimination in Sentencing

  • Race/ethnicity: African Americans disproportionately receive prison sentences

  • Gender: Women find increasing leniency at all stages of system

  • Socioeconomic status: Poor defendants less able to post bail, may lead to disadvantage at sentencing

  • Age: Research mixed, but recent study found no significant relationship between offender age and length of sentence

Capital Punishment

  • Between 1977 and 2014, more than 1,394 executions in the United States

  • Average of 38 executions each year

  • Peaked in 1999, when 98 persons were executed

Number of Persons Executed in the United States, 1977–2014

Source: Snell, T. (2014). Capital punishment, 2014—Statistical tables. Washington, DC: U.S. Department of State.

Supreme Court Decisions

  • Furman v. Georgia (1972)

  • McCleskey v. Kemp (1972)

  • Gregg v. Georgia (1976)

  • Coker v. Georgia (1977)

  • Kennedy v. Louisiana (2008)

Supreme Court Decisions

  • Perry v. Lynaugh (1989)

  • Stanford v. Kentucky (1989)

  • Payne v. Tennessee (1991)

  • Atkins v. Virginia (2002)

  • Roper v. Simmons (2005)

The Death Penalty Today

  • 36 states, federal government have statutes authorizing death penalty

  • Since 1977, executions carried out in 34 states
  • 65% in Florida, Missouri, Oklahoma, Texas, Virginia
  • More than 1/3 in Texas

  • Majority of prisoners under sentence of death in 2013 were white, never married, had less than high school education, overwhelmingly male

Methods of Execution

  • Methods used in United States
  • Lethal injection
  • Electrocution
  • Lethal gas
  • Hanging
  • Firing squad

  • Lethal injection primary/exclusive method in 36 states

Arguments for Capital Punishment

  • Largely focused on deterrent impact

  • Another justification rests on the principle of retribution

  • Broad public support for death penalty persists in United States

Arguments Against Capital Punishment

  • Discrimination in application

  • Brutalizing effect on society

  • Criminal justice system not infallible; possibility of death-row inmate being innocent exists

Grounds for Appellate Review of Sentence

  • Sentence violates Eighth Amendment

  • Sentence is disproportionate

  • Abuse of discretionary power

  • Fell outside statutory sentence guidelines

  • Imposed by a court not having jurisdiction authority

The Appeal Process

  • Postconviction appeals
  • Notice of appeal must be filed 30 to 90 days following conviction
  • All death penalty sentences required to undergo automatic appellate review

  • Today, after exhausting state appeals, most prisoners are allowed only one appeal in federal courts