Module 8
Sentencing Issues
A. Justification for Punishment
No consensus exists on how the courts should punish the guilty, perhaps because
five different philosophical principles guide sentencing in the United States: retribution,
deterrence, rehabilitation, incapacitation, and restoration. These philosophies differ in
important ways. Some focus on past behavior, whereas others are future oriented. Some
stress that the punishment should fit the crime, whereas others emphasize that the
punishment should fit the criminal.
The idea that offenders deserve punishment lies at the heart of retribution. This
philosophy toward criminal punishment can be traced back to ancient Babylonia in the
Code of Hammurabi, one of the oldest written codifications of laws ever discovered. The
code relied heavily on the principle of lex talionis—“an eye for an eye, a tooth for a
tooth”—a revenge-based conceptualization of retributive punishment.
What is most distinctive about retribution is its focus on past behavior; the
severity of the punishment is directly tied to the seriousness of the crime. This concept is
based on strongly held moral principles: Individuals are held responsible for their own
actions. Punishing wrongdoers in this manner reflects a desire for revenge: Because the
victim has suffered, the criminal should suffer as well. But because society as a whole is
punishing the criminal, individuals are not justified in taking the law into their own
hands. Moreover, in applying retributive sanctions, the severity of the punishment is
limited to the severity of the injury to the victim.
“Let this sentence be a warning to others.” Phrases like this reflect one of the
more modern and also most widely held justifications for punishment. According to
deterrence theory, the purpose of punishment is the prevention of future crimes.
Deterrence is not content to punish the given wrongdoer; rather, it seeks to prevent other
potential offenders from committing crimes. Deterrence, however, does not propose to
change offenders— just deter them.
Building on the work of 18th-century criminologist Cesare Beccaria (1764),
Jeremy Bentham, a 19th-century British lawyer, reformer, and criminologist, articulated a
coherent theory of deterrence (1830) that still influences us today. To Bentham,
punishment based on retribution was pointless and counterproductive. Instead, he argued
that sanctions should be used to further society’s goal of preventing crime. Bentham
believed that human behavior is governed by individual calculation: People seek to
maximize pleasure and minimize pain—a principle he referred to as the hedonistic
calculus. Under this utilitarian theory, the basic objective of punishment is to discourage
crime by making it painful. Because people seek to minimize pain, they will refrain from
activities, such as crimes, that result in painful sanctions.
An extensive literature examines deterrence but reaches no firm conclusions.
Some studies find a deterrent effect, and others do not (Levitt, 2006; Nagin, 1998;
Webster, Doob, & Zimring, 2006). Although discussions of deterrence are usually
coupled with calls for increasing the severity of sentences, some research suggests that
the perceived certainty of punishment is more of a deterrent than the perceived severity of
punishment (Cullen, Wright, & Blevins, 2006; Wilson, 1983). Moreover, because
deterrence rests on the assumption of rational, calculating behavior, and this precondition
is absent in many crimes (as described above), many observers question whether court
sentences—particularly severe ones—do indeed deter.
Another modern justification for imposing punishment concerns helping offenders
assume a constructive place in society through vocational, educational, or therapeutic
treatment. The idea of rehabilitation assumes that criminal behavior is the result of social
or psychological disorders, and that the treatment of such disorders should be the primary
goal of corrections. Success means assessing the needs of the individual and providing a
program to meet those needs. Ultimately, then, offenders are not being punished but are
treated, not only for their own good but also for the benefit of society. Under
rehabilitation, sentences should fit the offender rather than the offense.
The concept of rehabilitation dominated thinking about sentencing throughout
much of the 20th century, providing the intellectual linchpin for important developments
such as probation and parole, as well as the concept of pretrial diversion— an alternative
to prosecution that seeks to divert certain offenders from traditional criminal justice
processing into programs of supervision and rehabilitative services. Most court personnel
and correctional officials have strongly favored rehabilitation. It has also enjoyed
widespread public support; almost three out of four persons favor the idea that the main
emphasis in prisons should be to help the offender become a productive citizen.
More recently, though, empirical studies have found that rehabilitation can indeed
be effective (see Cullen, 2005, 2013). Much of the research supporting the rehabilitative
model comes from studies that have evaluated the effectiveness of different correctional
interventions. An ever-growing number of modern correctional policies are being crafted
in light of the empirical evidence produced by these evaluation studies, a movement
called evidence-based corrections (MacKenzie, 2006; Robinson, 2008). As a result,
resources are being put into interventions that research has demonstrated to be effective,
such as “using behavioral and cognitive approaches, occurring in the offenders’ natural
environment, being multi-modal and intensive enough to be effective, encompassing
rewards for pro-social behavior, targeting highrisk and high-criminogenic need
individuals, and matching the learning styles and abilities of the offender” (Listwan,
Cullen, & Latessa, 2006, p. 20). In contrast, rehabilitative strategies that have proven to
be largely ineffective, such as psychodynamic therapies and “scared straight” programs,
are slowly being abandoned.
“Lock them up and throw away the key.” Average citizens, outraged by a recent,
shocking crime, often express sentiments like this. The assumption of incapacitation is
that crime can be prevented if criminals are physically restrained. The theory of isolating
current or potential criminals differs from the theory of retribution in two important ways.
First, it is future oriented: the goal is to prevent future crimes, not punish past ones.
Second, it focuses on the personal characteristics of the offender: the type of person
committing the crime is more important than the crime committed. Unlike rehabilitation,
however, incapacitation has no intention of reforming the offender. Instead, since ancient
times, societies have banished or imprisoned persons who have disobeyed the rules.
As a sentencing philosophy, incapacitation suffers from important limitations. It
cannot provide any standards about how long a sentence should be. Moreover, isolation
without efforts directed toward rehabilitation may produce more severe criminal behavior
once the offender is released. Prisons protect the community, but that protection is only
temporary. Applying the incapacitation theory to the fullest would require the building of
many more prisons, at great expense.
After imposing a prison sentence on a rapist, an Australian judge observed a
victim who remained as upset as she had been throughout all of the judicial proceedings.
So, he asked her to approach the bench. Speaking quietly, he said, “You understand that
what I have done here demonstrates conclusively that what happened was not your fault.”
Hearing these words, she burst into tears and ran from the courtroom. Several days later,
he called the family and learned that his words provided a sense of “vindication for the
woman; they marked the beginning of her psychological recovery. Her tears had been
tears of healing”.
Of the five major philosophies outlined above— retribution, incapacitation,
deterrence, rehabilitation, and restoration—none alone is adequate; the various goals
must be balanced. Therefore, elements of each of these philosophies have been
incorporated into society’s efforts to control crime. As a result, sentencing decisions
reflect ambivalent expectations about the causes of crime, the nature of criminals, and the
role of the courts in reducing crime. Moreover, debates about the morality and
effectiveness of each philosophical perspective resulted in widespread sentencing
reforms, many of which focus on who should have the authority to impose a sentence and
what limits should be placed on that authority.
From the inside looking out, sentencing is a judicial function. With a few
exceptions, only the judge has the legal authority to send the guilty to prison or to grant
probation. From the outside looking in, however, sentencing responsibility involves all
three branches of government—legislative, executive, and judicial. Throughout most of
the 20th century, sentencing was exercised within broad limits set by the legislature,
which prescribed maximum sentences. The judicial branch of government had primary
authority over who went to prison, and an executive agency—parole boards—controlled
the length of the prison term. Since the mid1970s, dramatic changes have been made in
the laws under which offenders are sent to prison and in the mechanisms that control how
long they stay there. Legislatures have increased their control over the sentencing
process, and the judiciary and the parole boards have taken steps to formalize and
regularize their exercise of discretion in applying sanctions. The result has been a
significant narrowing of sentencing discretion in most states.
Legislatures are initially responsible for creating sentencing options in the
criminal codes they enact. Legislatures specify terms of imprisonment in different ways.
Consistent with the goal of rehabilitation, which dominated correctional thinking through
most of the 20th century, state legislatures adopted indeterminate sentences (often called
indefinite sentences), based on the idea that correctional personnel must have discretion
to release an offender when treatment has been successful. States with indeterminate
sentences stipulate a minimum and maximum amount of time to be served in prison—1
to 5 years, 3 to 10 years, 20 years to life, and so on. At the time of sentencing, the
offender knows the range of the sentence and knows that parole is a possibility after the
minimum sentence, minus good time (discussed below), has been served. How long the
person actually remains in prison is determined by the parole authority, based on its
assessment of the offender’s progress toward rehabilitation.
Although other members of the courtroom work group may recommend a
criminal sentence (especially probation officers), with limited exceptions, only a judge
has the authority to choose among the sentencing options provided by the legislature.
Wide judicial discretion in sentencing reflects the rehabilitative model, which stresses
that the punishment should fit the criminal. No two crimes or criminals are exactly alike;
sentences should therefore be individualized, with judges taking these differences into
account. But no agreement has been reached on what factors should increase or reduce
the penalty.
Sentences imposed by judges are typically carried out by officials of the executive
branch. Of particular importance is the impact of executive officials on prison
populations. How long an offender will be imprisoned depends not only on the length of
the sentence imposed by the judge but also on the decisions made by governors, parole
boards, and departments of corrections. Only about one-third of prisoners serve their full
sentences and are then released unconditionally. The remaining two-thirds of prisoners
are conditionally released from prison to serve the balance of their sentences in the
community as a function of one of three early release programs: parole, good time, and
(to a much lesser extent) executive clemency.
Parole is the conditional release of an inmate from incarceration, under
supervision, after a portion of the prison sentence has been served. A parole officer
supervises the conditions of release, and any rule violations or new crimes can result in a
return to prison for the balance of the unexpired term. Parole boards, which are usually
appointed by the governor, vary greatly in their discretionary authority. Approximately
870,500 persons are currently on parole in the United States.
B. The Courtroom Work Group and Sentencing Decisions
As the previous section should make clear, sentencing is a joint decision-making
process. Although only judges possess the legal authority to impose a sentence, other
members of the courtroom work group are also influential (Reitler & Frank, 2014). The
extent of this influence varies from jurisdiction to jurisdiction and from judge to judge.
Where sentence bargaining predominates, for example, the judge almost invariably
imposes the sentence that the prosecutor and defense attorney have already agreed upon.
Where count and charge bargaining are used, the actors reach agreements based on past
sentencing patterns of the judge. The most significant actors in sentencing are probation
officers, prosecutors, defense attorneys, and (of course) judges.
The primary purpose of a presentence investigation (PSI) is to help the judge
select an appropriate sentence by providing information about the crime and the criminal.
Most often, the PSI is ordered by the court following the defendant’s conviction. A date
is set for sentencing the offender, and meanwhile the probation officer conducts the
investigation. The presentence report is designed to give the judge, who must select the
proper sentence, an appropriate database. This is particularly important when the
defendant has entered a plea of guilty, because in these cases the judge knows little about
the particulars of the crime or the background of the offender. Ultimately, the goal of
PSIs is to allow the judge to make an informed sentencing decision that balances risk-
management of the offender (the safety of the community if the defendant is not
incarcerated) with rehabilitative reasons to allow the defendant to remain in the
community under supervision.
In order to gather the information needed to prepare a comprehensive PSI report,
probation officers need to review a variety of records and reports to obtain information on
the offender’s prior criminal record, financial situation, social history (education,
employment history, military service, prior performance on probation or parole, marital
status, family relationships, residence history, and so on), and medical and psychological
history. Probation officers also conduct interviews with the defendant, the defendant’s
family, police, the victim, and other people in the defendant’s life who might shed light
on the suitability of a particular sentencing recommendation, such as friends, teachers,
employers (and sometimes co-workers), and clergy members.
However, considerable disagreement exists over the actual influence of probation
officers in the sentencing process. Some studies suggest that judges seriously consider the
recommendations and use them to guide their decisions—that judges lean heavily on the
professional advice of probation officers (David, 1980; Walsh, 1985). Others report that
judges skim these reports and read only the sections they deem most important (Leiber,
Reitzel, & Mack, 2011; Norman & Wadman, 2000; Rush & Robertson, 1987). And still
other researchers argue that probation officers have little real influence on the sentencing
process—that probation recommendations have been supplanted by plea bargaining
(Clear, Harris, & Baird, 1992). By and large, recommendations by probation officers “do
not influence judicial sentencing significantly but serve to maintain the myth that
criminal courts dispense individual justice” (Rosencrance, 2004). This, however, may be
changing because of the evidence-based corrections movement.
Prosecutors influence the sentencing decision in several important ways. By
agreeing to a count or charge bargain, prosecutors limit the maximum penalty the judge
may impose. During the sentencing hearing, prosecutors can bring to the court’s attention
factors that are likely to increase the penalty—for example, that the victim was
particularly vulnerable or that the defendant inflicted great harm on the victim.
Alternatively, prosecutors can bring out factors that would lessen the penalty—for
example, the defendant’s cooperation with the police.
Empirical studies of such displacement have indeed found that prosecutorial
behavior has changed as they gained more ability to control sentencing through earlier
decision making in the process, but that the shift has been modest, not monumental
(Miethe, 1987; Vance & Oleson, 2014; Wooldredge & Griffin, 2005). Nonetheless, there
can be little doubt that prosecutors play a significant role in sentencing throughout the
entirety of the criminal judicial process.
The defense attorney’s role in sentencing begins early in the history of a case. The
decision whether to go to trial or to enter a guilty plea is partially based on the attorney’s
assessment of the sentence likely to be imposed. Based on the knowledge of what
sentences have been handed out to past defendants accused of similar crimes and with
similar backgrounds, the attorney must advise the client as to the probable sentence.
At the same time, the defense attorney seeks to obtain the lightest sentence
possible. One way to accomplish this goal is to maneuver the case before a judge with a
lenient sentencing record. Another way is to discuss the case with the prosecutor in hopes
that he or she will agree to (or at least not oppose) a recommendation of probation in the
presentence investigation. Defense attorneys also try to emphasize certain circumstances
that make the defendant look better in the eyes of the judge, prosecutor, and probation
officer. They may try to downplay the severity of the offense by stressing the defendant’s
minor role in the crime or the fact that the victim was not without blame; or they may
have friends or employers testify about the defendant’s general good character and
regular employment.
Courtroom work groups impose informal limits on how judges exercise their
formal legal authority to impose sentences (Walker, 2015). Judges are well aware that the
disposition of cases is related to plea bargaining, which in turn depends on being able to
anticipate the sentencing tendencies of judges. Judges share in a framework of
understandings, expectations, and agreements that are relied on to dispose of most
criminal cases. If a judge strays too far from expectations by imposing a sentence
substantially more lenient or more severe than the one agreed on by the defendant,
defense lawyer, and prosecutor, it becomes more difficult for the prosecutor and defense
counsel to negotiate future agreements.
Judges, though, are not without influence. They are the most experienced
members of the courtroom team, so their views carry more weight than those of relatively
inexperienced prosecutors or defense attorneys. The particular judge’s attitudes about
sentencing are reflected in the courtroom work group’s common understanding of what
sentences are appropriate.
C. Changing Sentencing Structure
During the late 1960s and early 1970s, an unusual (and temporary) political
coalition developed between liberals and conservatives. Both sides found considerable
fault in existing sentencing practices. Although their reasons reflected fundamentally
different concerns, liberals and conservatives defined the problem in similar terms: The
criminal laws permitted too much latitude in sentencing, providing judges with little or no
guidance on how to determine the proper sentence for each individual case. This coalition
therefore sought greater predictability in sentencing. The result was a fundamental
change in how defendants are sentenced.
Adherents of the due process model were concerned that excessive discretion
resulted in a lack of fairness in sentencing. They perceived that criminal justice officials,
ranging from police officers to parole boards, were making decisions in a discriminatory
manner, especially on the basis of race. They were also concerned that judges’ sentencing
discretion resulted in sentencing disparities. Thus, the political left saw determinate
sentences as a means of reducing individual discretion and thereby (presumably)
reducing disparity and discrimination.
In response to criticisms of the rehabilitation model, with its emphasis on
indeterminate sentences and discretionary parole release, a number of states returned to
sentencing schemes intended to provide more legislative control over imprisonment
decisions. The systems put in place are based on the assumption that judges should give
offenders a specific amount of time to serve rather than an indeterminate period of
incarceration between some minimum and maximum sentence. But the varying
approaches to doing so use different means to accomplish the desired ends. Structured
sentencing schemes target sentencing decisions by judges. In contrast, true determinate
sentencing schemes control release decisions, usually by abolishing boards and requiring
offenders be released after serving the term imposed (or a high percentage of the term
imposed, such as 85 percent), less any reductions through “good time” credits and similar
programs.
Early efforts to impose structured sentencing suffered from a serious weakness:
Legislative bodies had neither the time nor the skills to enact detailed sentencing rules.
Therefore, since the 1980s, efforts to provide certainty and consistency in sentencing
have taken a different form. Legislatures have created commissions to devise detailed
sentencing rules, and the legislatures have then enacted these guidelines into law.
Under unstructured sentencing law, states typically provided a wide sentencing
range for felony offenses. For example, a judge might be authorized to impose a sentence
of 2 to 10 years. To reduce judicial discretion and sentencing disparities, some states
opted to put in place a series of presumptive sentences. Under this approach, legislatures
specified a presumptive term of imprisonment for a particular criminal offense. Thus,
instead of an indeterminate term of 2 to 10 years, a presumptive sentence of 4 years’
imprisonment would be specified for a particular felony. Judges may legally impose a
term different from the recommended term only by finding aggravating or mitigating
circumstances. Departures are reviewable on appeal to ensure that presumptive sentences
are followed.
Of the 21 states that adopted sentencing guidelines, 11 required judges to sentence
within the presumptive sentencing guidelines and 10 states made judicial compliance
with sentencing guidelines voluntary (Stemen & Rengifo, 2011). But this dichotomy is a
bit misleading. State sentencing guidelines are best viewed as ranging along a continuum
of more voluntary on one side and more mandatory on the other.
Since 2000, the U.S. Supreme Court has raised serious doubts about the
constitutionality of many state sentencing guidelines, holding that other than a prior
conviction, any fact that increases the penalty for a crime beyond the statutory maximum
must be tried before a jury (Apprendi v. New Jersey, 2000). Based on this reasoning, in
2004 the Court struck down sentencing guidelines in the State of Washington, holding
that the Sixth Amendment gives juries (and not judges) the power to make a finding of
fact beyond a reasonable doubt (Blakely v. Washington, 2004). The dissenters argued
that the decision will serve only to increase judicial discretion and lead to less uniformity
in sentencing, perhaps leading to increasing racial discrimination.
The legal and political factors leading to the creation of state sentencing
guidelines likewise led to the creation of federal sentencing guidelines, which have
become more visible and also more controversial than their state counterparts. In 1984,
Congress created the U.S. Sentencing Commission and charged it with developing
guidelines for sentencing federal offenders. These standards became law in 1987. The
Supreme Court upheld their legality in 1989 (Mistretta v. United States), only to rule
them unconstitutional in 2005 (United States v. Booker).
The impact of Booker on federal sentencing practices was not as dramatic as
some hoped and others feared. At the district court level, the rate of within-range
sentences remained the same and average sentence lengths remained constant. There
were more downward departures, but these were largely due to actions of U.S. attorneys
and not the judges (Hofer, 2007). The U.S. courts of appeals varied in their approaches:
Some adopted a wait-and-see attitude; others held that Blakely did not apply to the
federal sentencing guidelines, and still others held that the guidelines were
unconstitutional (Hurwitz, 2006). The Court revisited the issues, holding that sentences
within the guidelines may be presumed “reasonable,” but did not require appellate courts
to do so (Rita v. United States, 2007). Amid confusion about the impact of Rita, the Court
again considered the issues, this time making it more difficult for appeals courts to
reverse a trial judge who imposes a sentence more lenient than the guideline
recommendations (Gall v. United States, 2007). At the same time, the high court, by a
vote of 7 to 2, held that trial judges may narrow the sentencing gap between crack
cocaine and powder cocaine (Kimbrough v. United States, 2007). And three years later in
Pepper v. United States (2011), the Court further expanded the discretion of federal
judges at sentencing when it held that when a defendant’s sentence has been set aside on
appeal, a district court at resentencing may consider evidence of the defendant’s
postsentencing rehabilitation. Collectively, these decisions give federal judges the
authority to consider a broad range of factors when sentencing a defendant “so long as
they both begin with the Guidelines calculations, and then explicitly state their reasons
for any variance from the Guidelines’ range” (p. 412). “Dead Law Walking” is how one
law professor described the tenacity of the federal sentencing guidelines.
The application of sentencing guidelines is complex (Kramer & Ulmer, 2009).
One major question asked by researchers and policymakers is whether structured or
determinate sentencing schemes do indeed result in fairer sentences. Not surprisingly, the
answer to that question might depend on one’s interpretation of the data. Some adherents
hoped that these laws would increase the certainty of punishment; others feared that
prison populations would swell. Several studies investigated the impact of these
sentencing schemes and found that the impacts were diverse. In one state, an offender’s
chance of receiving probation declined, but there was no change in another (Covey &
Mande, 1985; McCoy, 1984). Likewise, in some states there was a projected 50 percent
increase in the actual length of sentence for first offenders, yet in another jurisdiction
only a modest increase was foreseen (Clarke, 1984; Clear, Hewitt, & Regoli, 1979). At
least one study suggested that state presumptive guidelines were particularly useful in
reducing sentencing disparities that were a function of judges’ tenure on the bench,
prosecutorial experience, and caseload.
D. Increasing the Severity of the Penalty
For many years, the majority of Americans have believed that prison sentences
are too lenient (Cullen, Fisher, & Applegate, 2000; Krisberg, 1988; Rossi & Berk, 1997),
and elected officials often express these views (Thomson & Ragona, 1987). Thus, when
confronted with a crime problem, legislators responded by sounding a clarion call to get
tough with criminals. Accordingly, criminal punishments grew harsher throughout the
1980s and 1990s. But the economic crisis in the late 2000s may have caused the
American public to rethink its evermore-punitive stance. Opinion research finds that the
public “overwhelmingly favors spending more on policing, crime prevention programs
for young people, and drug treatment for nonviolent offenders,” while they oppose
additional funding for prisons (Gottschalk, 2009, p. 456; see also Cohen, Rust, & Steen,
2006). States have been experimenting with different sentencing formulas aimed at
rehabilitation, especially for nonviolent offenders (Gottschalk, 2009; King, 2008; Porter,
2016). But there can be no doubt that the increased severity of criminal penalties over the
past 30 years or so still causes the United States to incarcerate more people per capita
than any other country in the world.
Mandatory minimum sentencing laws are one method legislatures use to increase
the severity of sentencing. These types of laws are typically enacted in response to
allegations that lenient judges are allowing many serious offenders—particularly violent
ones—to go free. The “proof” of this proposition is often limited to one or two highly
publicized cases. Although fewer than half the states have adopted determinate
sentencing laws, virtually all states and the federal government have enacted a particular
type of determinate sentencing law mandating minimum sentences for certain offenses.
Typically, mandatory minimum sentencing laws require that offenders convicted
of certain offenses must be sentenced to a prison term of not less than a specified period
of years, and nonprison sentences (such as probation) are expressly precluded. In short, a
term of imprisonment is mandated regardless of the circumstances of the offense or the
background of the individual.
In addition, some states enacted so-called truth in sentencing laws, which require
offenders to serve a substantial portion of their prison term (often 85 percent) before
release (Ditton & Wilson, 1999). Truth in sentencing laws were prompted by the 1994
Crime Act, a law that provided federal funds to help states having such a law expand
their prisons to house violent offenders. But few states actually enacted such laws, and
funding was discontinued in 2002 (Turner, Greenwood, Fain, & Chiesa, 2006). As a
result of skyrocketing prison costs, some states, most notably Iowa, have decreased the
time inmates are required to serve to facilitate earlier release through parole (Public
Safety Performance Project, 2007). And other states, like California, are attempting to
reduce the number of inmates in state prisons by shifting responsibility to counties for the
custody, treatment, and supervision of individuals convicted of specified nonviolent,
nonserious, nonsex crimes.
Clearly, a relationship exists between punishment policy and the system that
administers it. The more severe the penalty, the less likely it will be imposed when its
severity exceeds what is viewed as appropriate. In other words, increasing the severity of
the punishment does not increase the certainty of punishment; in fact, the threat of
punishment may even be reduced by increasingly severe punishments. At this point,
however, it should be clear that judicial discretion in sentencing is limited by a number of
factors. Thus, the discretionary actions of police, prosecutors, and juries may be
nullifying harsh penalties as much as, if not more than, discretionary decision making by
judges.
One reason legislators find raising penalties so attractive is that they appear to be
fighting crime without having to increase appropriations. It is a policy apparently without
costs; the public will be appeased without the painful necessity of voting for higher taxes.
But a number of studies suggest that increasing the severity of the punishment produces
negative side effects (referred to by economists as “hidden costs” and by others as
“unanticipated consequences”)—that is, harsher laws have impacts, but often not the ones
intended.
E. Sentence that Imposed
What types of sentences should be imposed upon the guilty? Flogging, the stocks,
exile, chopping off a hand, and branding are just a few examples of punishments
historically inflicted on the guilty. Today, such sanctions are viewed as violating the
Constitution’s prohibition against cruel and unusual punishment. In their place, we use
imprisonment, probation, intermediate sanctions, fines, and restitution. Many states also
make formal provisions for capital punishment, but the death penalty is rarely used. In
essence, these forms of punishment are tools created under the sentencing structure to
advance society’s theories of punishment. They are the options from which the
sentencing judge must choose.
Imprisonment (incarceration) has become the dominant form of punishment only
during the past two centuries. The United States imprisons a larger share of its population
than any other nation. According to the Bureau of Justice Statistics (Carson & Anderson,
2015), more than 1.53 million inmates are currently housed in prisons and jails. The high
rate of imprisonment is not without its critics (Listwan, Johnson, Cullen, & Latessa,
2008). In Big Prisons, Big Dreams, Michael Lynch (2007) argues that the dramatic
growth in our prison population has not reduced crime because we are not targeting the
worst offenders. Prison populations are comprised of the poor, and many are incarcerated
for nonviolent drug offenses or for relatively minor offenses. And high rates of
incarceration contribute to the very social problems it is intended to solve by breaking-up
families and eroding economic and social networks in economically disadvantaged
communities.
Jail and prison overcrowding has become the dominant reality of criminal justice
policy. The numbers of people on probation and parole have also risen sharply. Figure
14.2 shows how the size of the correctional population has skyrocketed in recent years,
but the trend is starting to change. Record high numbers of prisoners were reported every
year for nearly four decades. In 2010, though, the number of people incarcerated in U.S.
prisons and jails dropped for the first time since 1972. And the downward trend in
incarceration has continued since then.
California has led the nation in downsizing its prison population through its public
safety realignment efforts. Realignment transferred the state’s responsibility for
nonviolent offenders to the county level. State officials hoped that county-level services
could provide better rehabilitation and job-training services that might improve on the
state’s dismal 70 percent recidivism record. But critics feared that the lack of financial
resources at the county level (including insufficient bed space in jails) would lead to more
criminals being out on the street rather than incarcerated. To date, public safety
realignment (in conjunction with some other criminal justice reforms) has reduced the
state prison population to its lowest level in more than 20 years (Lofstrrom & Martin,
2017). “To manage jail populations, county sheriffs are increasingly using alternatives
such as electronic monitoring, day reporting centers, community service, and alternative
work programs. Most counties are also introducing or expanding inmate needs
assessments, as well as mental health and substance abuse services, cognitive behavioral
treatment, and employment and housing programs” (Lofstrom & Martin, 2017, p. 2).
Although the recidivism rate has not markedly improved, crime rates did not rise. In
short, these data have led researchers to conclude that prison populations can be reduced
without endangering the public.
Traditionally, courts followed a hands-off policy regarding correctional
institutions, choosing not to interfere in their internal administration. But this policy
began to change in 1964 (Cooper v. Pate). By the 1970s, the federal courts began to
scrutinize the operations of correctional institutions to ensure compliance with the Eighth
Amendment’s protection against cruel and unusual punishment (DiIulio, 1990). Prisoners
have sued under 42 U.S.C. § 1983 (see Chapter 2) in what are often termed conditions of
confinement lawsuits. The lawsuits contend that local, county, or state officials have
deprived them of their constitutional rights, such as adequate medical treatment,
excessive force by correctional officers, and protection against violence by other inmates
(Hanson & Daley, 1995). Unfortunately, though, inmates have also abused their rights to
access the courts to redress legitimate grievances by suing over frivolous matters as a
means of harassing correctional staff, taking revenge on the courts, or passing the time
while incarcerated (Fradella, 1999). The volume of meritless suits led Congress to restrict
inmates’ ability to sue in 1996, when it enacted the Prison Litigation Reform Act. The
law was effective in significantly reducing the number of civil rights cases filed by
prisoners. Critics, however, point out that in limiting the number of frivolous lawsuits
that can clog the courts, Congress may have also made it more difficult for prisoners to
file and win meritorious suits.
Getting tough on criminals is popular, yet public opinion polls show that spending
money for more prisons is not a high priority for the general public. Prisons are costly to
build and even more costly to maintain (Spelman, 2009). Estimates of the costs of
constructing a single cell exceed $100,000 (Clear, Reisig, & Cole, 2016). The costs of
incarcerating a prisoner (clothes, food, and guards, primarily) depend on the level of
confinement and also vary from state to state, ranging from $15,000 to $60,000 per
prisoner per year (Henrichson & Delaney, 2012). These costs double or even triple to
house prisoners in solitary confinement—upwards of $70,000 to $92,000 annually per
inmate.
Unlike incarceration, probation is designed as a means of maintaining control
over offenders while permitting them to live in the community (under supervision). The
major justification for probation is that prisons are inappropriate places for some
defendants and that limited supervision is a better way to rehabilitate criminals. Youthful
or first-time offenders may only become embittered if mixed in prison with hardened
criminals; they may end up learning more sophisticated criminal techniques. But most
important, probation is significantly less expensive than imprisonment.
The imposition of a fine is one of the oldest and also one of the most widely used
forms of punishment. Fines are used extensively for traffic offenses and minor ordinance
violations, generating well over $1 billion annually for local governments (Clear, Reisig,
& Cole, 2016). Judges in the lower courts impose a fine alone or in combination with
other sanctions in about 86 percent of their cases. But the imposition of fines is not
confined to the lower courts. In the major trial courts, a fine, either alone or together with
other sanctions, is imposed in approximately 44 percent of the cases.
Restitution is the requirement that the offender provide reparation to the victim
for the harm caused by the criminal offense. Requiring defendants to compensate victims
(giving something back) for their losses was customary in ancient civilizations. But as the
government replaced the victim as the principal party in criminal prosecution, restitution
fell into decline; offenders paid fines to the government rather than restitution to the
victim (Tobolowsky, 1993). Beginning in the mid-1960s, the idea of restitution became
the focus of renewed interest and became touted as one of the criminal justice system’s
more creative responses to crime. Nearly all states have enacted laws providing for the
collection and distribution of restitution funds.
Concern is growing that the United States relies much too heavily on
imprisonment and probation. Prison is viewed as too harsh (as well as unavailable) for
many defendants, whereas high caseloads often leave too many probationers without
adequate supervision. Alternative sentences that lie somewhere between prison and
probation are often referred to as intermediate sanctions.
As previously mentioned, community service is based on the theory of symbolic
restitution—the offender has injured the community and therefore should compensate the
community for that injury. Thus, a person sentenced to community service is required to
provide a specified number of hours of free labor in some public service, such as street
cleaning, repairing substandard housing, or volunteering in a hospital. In the eyes of the
general public, community service is most visible when it is imposed on celebrities like
actors and athletes.
Another alternative to incarceration that helps to reduce jail and prison
overcrowding, as well as the costs of punishment, is home detention (sometimes referred
to as house arrest). This punishment confines offenders to their homes under specific
terms and conditions. Typically, offenders are permitted to leave their home for only
explicit, preauthorized reasons, such as to obtain health care (including court-mandated
treatment), to shop for groceries and other necessities, to attend religious services, and to
go to work and/or school— but only if such activities have been authorized. Home arrest
is enforced by unannounced field visits (usually by probation or parole officers) at all
times of the day and night. And, starting in the 1980s and growing in use to the present,
enforcement has been aided by electronic monitoring (EM) devises that allow both
computer and monitoring specialists to track offender compliance with house arrest and
highly regimented, limited scheduled departures from the home that may be allowed in a
particular case (DeMichele & Payne, 2009). Some EM devices can even detect alcohol
consumption through skin pores.
EM programs have traditionally been used with relatively low-risk offenders,
such as those convicted of drug possession, driving under the influence, driving on a
suspended license, petty theft, and certain white-collar crimes (Gable & Gable, 2005).
But today’s most sophisticated EM devices can monitor an offender’s location every
second of the day using global positioning satellites (GPS). The second generation of
GPS-EM technology allows for greater control of higher-risk offenders, such as some sex
offenders and intimate-partner violence offenders. GPS-EM can be used to monitor
offenders on house arrest as an alternative to incarceration or as part of an intensive-
supervision program after they are paroled (Erez & Ibarra, 2007; Payne & DeMichele,
2011). But unlike the cost-savings benefit associated with more traditional EM programs,
GPS-EM can be cumbersome and expensive to operate and monitor.
The best-known example of shock incarceration is the boot camp, in which
offenders serve a short sentence that includes a rigorous, paramilitary regimen designed
to develop discipline and respect for authority. Proponents of boot camps argue that many
young offenders are involved in crime because they have little discipline in their
disordered lives. Thus, a relatively brief, quasi-military experience is designed to send the
offender off in more productive directions. Critics, however, argue that the military-style
physical training and the harshness of the program do little to overcome the problems
facing inner-city youths who are in trouble with the law. Evaluations of boot camp
graduates show that they do no better than other offenders after release (Cullen, Blevins,
& Trager, 2005; Klenowski, Bell, & Dodson, 2010; Parent, 2003). To be effective, boot
camp programs must be carefully designed, target the right types of offenders, and
provide rehabilitative services (Kurlychek & Kempinen, 2006). Findings like these,
coupled with the high costs, have led some state and local officials to close their boot
camps.
F. The Death Penalty
Of all the forms of punishment, the death penalty is by far the most controversial,
but it is also the least used; only a handful of offenders potentially face the ultimate
sanction society can impose on the guilty. Since the U.S. Supreme Court ushered in the
modern era of the death penalty in 1976, approximately 1,448 executions have been
carried out in the United States.
Capital punishment was once almost the only penalty applied to convicted felons.
By the time of the American Revolution, the English courts had defined more than 200
felonies, all of which were capital offenses. However, many death penalties were not
carried out; instead, offenders were pardoned or banished to penal colonies. Over time,
courts and legislatures began to recognize other forms of punishment, such as
imprisonment and probation.
In Trop v. Dulles (1958), the U.S. Supreme Court explained that the scope of the
Cruel and Unusual Punishments Clause of the Eighth Amendment to the U.S.
Constitution is not static, but rather should be interpreted on the basis of “evolving
standards of decency in a maturing society” (p. 101). Since that time, the Court has been
repeatedly called upon to determine whether particular capital punishment laws or their
application in particular cases are consistent with the Eighth Amendment as viewed from
the perspective of “evolving standards of decency in a maturing society.” Applying this
standard in its 1972 landmark decision in Furman v. Georgia, the Court invalidated all 37
then-existing state death penalty statutes. The Court was deeply divided, however, with
every justice writing a separate opinion.
Furman v. Georgia raised more questions than it answered, and state legislatures
attempted to write new capital punishment laws consistent with the Eighth Amendment.
By 1976, a total of 37 states had enacted new legislation designed to avoid the arbitrary
application of capital punishment. These laws took two forms. Some states passed
mandatory death penalty laws, which removed all discretion from the process by
requiring that anyone convicted of a capital offense be sentenced to death. Other states
enacted guided discretion statutes, which required judges and juries to weigh various
aggravating and mitigating circumstances in deciding whether or not a particular
defendant should receive the death penalty.
One long-standing issue has been the exclusion of persons opposed to the death
penalty from juries in capital cases (“Live Free and Nullify.N.N. , 2014). The Warren Court
rejected the classic “hanging jury,” holding in Witherspoon v. Illinois (1968) that states
cannot exclude from juries in capital cases any persons who voice general objections to
the death penalty or express religious scruples against its imposition. However, the more
conservative Rehnquist Court limited Witherspoon in Wainwright v. Witt (1985), ruling
that the Constitution does not prohibit the removal for cause of prospective jurors whose
opposition to the death penalty is so strong that it would prevent or substantially impair
the performance of their duties as jurors at the sentencing phase of the trial (Lockhart v.
McCree, 1986). More recently, the Roberts Court held that a juror in a capital murder
trial was properly excused for cause because a reading of the transcript of the voir dire
indicated that he expressed reservations about the death penalty (Uttecht v. Brown,
2007). Decisions like this make it easier for prosecutors to weed out jurors who have
concerns about the death penalty, meaning that juries will be more prone to convict.
Part of the national debate over capital punishment has focused on what crimes
deserve the ultimate punishment. The term death-eligible refers to crimes that are
punishable by death. Today, very few crimes are considered death-eligible, but this was
not always the case. Over the years, persons were executed for committing a wide variety
of crimes besides murder, including rape, robbery, and stealing horses. Legislators have
played a major role in narrowing the scope of death-eligible offenses. Today, the focus is
on the U.S. Supreme Court. In the wake of Gregg v. Georgia, the Supreme Court has
placed important limits on what types of crimes and offenders are death-eligible.
State efforts to make nonhomicide cases death-eligible have been rejected.
According to the Supreme Court, rape is not a grave enough offense to justify the
imposition of the death penalty (Coker v. Georgia, 1977). More recently, the Court ruled
that the death penalty is unconstitutional as the punishment for the rape of a child
(Kennedy v. Louisiana, 2008). Whether the Court would uphold the death penalty for
treason is unclear. Under federal law, treason is also a death-eligible offense, but since no
one has been sentenced to death for espionage since the 1950s, the status of this penalty
has not been determined.
The U.S. Supreme Court has also placed important developmental limitations on
when the death penalty may be imposed both in terms of chronological age and mental
functioning. For many years, the minimum age varied from 12 to 18, with a few states
not specifying a minimum age. In fact, George Junius Stinney, Jr., a 14-year-old African-
American boy, was executed in South Carolina in 1944 after having been dubiously
convicted of killing two White girls, ages 8 and 11. Jury selection to verdict took less
than eight hours; the trial itself took only three hours and jury deliberations lasted only
ten minutes.
After decades of debate over the morality, fairness, and effectiveness of the death
penalty, a major new concern has been voiced—cost. In the words of retired California
Judge Donald McCartin, who was known as “The Hanging Judge of Orange County”
because he sentenced nine men to death row, “It’s 10 times more expensive to kill them
than to keep them alive” (quoted in Hastings, 2009). Although some might disagree with
McCartin’s precise cost estimates, few doubt that death penalty prosecutions and appeals
are more expensive than noncapital felony prosecutions because they often require extra
lawyers, and the appellate process takes years to complete. The high cost of defending
capital cases has strained public defender budgets and the courts as well. Thus, within the
last decade anti–death penalty advocates have placed less emphasis on the moral
arguments against capital punishment, focusing more on the costs and inefficiencies of
the practice.
G. Normal Penalties and Sentencing Decisions
Making sentencing decisions is not an easy task; many judges say that sentencing
is the most difficult part of their job. The frustrations of sentencing stem in part from the
need to weigh the possibility of rehabilitation, the need to protect the public, popular
demands for retribution, any potential deterrent value in the sentence, and restoration of
the victim to the extent possible. Of course, courtroom work groups do not consider these
competing perspectives in the abstract. They must sentence real defendants found guilty
of actual crimes. Each defendant and crime is somewhat different. Sentences are expected
to be individualized—to fit the penalty to the crime and the defendant.
In seeking individualized sentences, courtroom work groups use normal penalties
(Spohn, 2009; Sudnow, 1965). Based on the usual manner in which crimes are committed
and the typical backgrounds of the defendants who commit them, courtroom work groups
develop norms of what penalties are appropriate for given categories (see Table 14.3).
The normal sentences or “going rates” for typical sentences (Ulmer & Johnson, 2004) are
not used mechanically; rather, they guide sentencing. It is within the context of these
normal penalties that individualization occurs. Upward and downward adjustments are
made. Normal penalties governing appropriate sentences for defendants take into account
the seriousness of the crime, the prior criminal record, and any aggravating or mitigating
circumstances.
The most important factor in setting normal penalties is the seriousness of the
offense (Doerner & Demuth, 2014; Kim, Spohn, & Hedberg, 2015; Spohn, 2009; Spohn
& DeLone, 2000; Steffensmeier, Ulmer, & Kramer, 1998). The more serious the offense,
the less likely the defendant will be granted probation. Also, the more serious the offense,
the longer the prison sentence. These conclusions are hardly surprising. Society expects
that convicted murderers will be punished more severely than defendants found guilty of
theft. What is important is how courtroom work groups go about the task of deciding
what offenses are serious.
After the seriousness of the offense, the next most important factor in sentencing
is the defendant’s prior record (Albonetti, 1997; Doerner & Demuth, 2014; Spohn, 2009;
Ulmer, 1997). As the prior record increases, so does the sentence. In choosing between
probation and imprisonment, the courtroom work group carefully considers the
defendant’s previous criminal involvement. If the decision has been made to sentence the
offender to prison, the prior record also plays a role in setting the length of incarceration.
In general, a previous incarceration increases the length of the sentence.
In passing sentence, judges and other members of the courtroom work group
consider not only the formal charge but also the way the crime was committed.
Prosecutors and defense counsel engage in a careful calculation of moral turpitude,
examining the nature of the crime and the role of the victim. Some of the aggravating
circumstances that lead to a higher penalty are the use of a weapon and severe injury to
the victim. Mitigating factors include lack of mental capacity and role (principal or
secondary actor) in the crime. One of the most important mitigating factors is the
perceived social stability of the defendant. Marital status, relationship with the family,
length of employment, and prior alcohol or drug abuse are considered to be indicators of
social stability or instability. Social stability is a particularly important predictor of
judges’ sentencing, especially when probation is being considered.
Sentencing is more art than science. Judges, prosecutors, probation officers, and
defense attorneys are well aware that they will make mistakes in considering the
seriousness of the offense, the prior record of the defendant, aggravating or mitigating
circumstances, and the stability of the defendant. Uncertainty is ingrained in the process.
They may send someone to prison who should not be there or impose a prison sentence
that is longer than necessary. Or they may err in the opposite direction: A defendant
recently granted probation may commit a serious and well-publicized crime. Note that
only the second type of error will reach public attention; mistakes of the first kind may
appear, but only well after the fact.
H. Differences in Sentencing Outcomes
The ideal of equal justice under the law means that all persons convicted of the
same offense should receive identical sentences. But not all deviations from equality are
unwarranted. The law also strives for individualized dispositions, sometimes reflecting
varying degrees of seriousness of the offense, sometimes reflecting varying
characteristics of the offender. What one person may perceive as unfairness, another may
see as justifiable variation.
Disparity refers to inconsistencies in sentencing; the decision-making process is
the principal topic of interest. Discrimination, on the other hand, refers to illegitimate
influences on the sentencing process; defendants’ attributes are the primary focus. Legal
factors such as the seriousness of the offense and the prior criminal record of the
defendant are considered legitimate factors that contribute to disparities. But sentencing
discrimination exists when some illegitimate attribute is associated with sentencing
outcomes after all other relevant variables are adequately controlled. These objectionable
influences are referred to as “extralegal variables”.
Evidence of imbalance in outcomes, however, is not proof of discrimination.
Imbalance could be the result of the legally relevant factors discussed earlier in this
chapter (such as seriousness of the offense and prior record). In making claims about
discrimination, researchers want to make sure they are comparing cases that are truly
similar. By way of illustration, consider two defendants of different races who have
received different sentences. One of the defendants is a first offender who pled guilty to
burglary and received one year of probation. The other has two prior felony convictions
and was convicted by a jury of simple robbery and sentenced to three years in prison.
Irrespective of which offender was White or African-American, we would not conclude
solely on this evidence that the sentences were discriminatory. Rather, we would want to
compare a number of cases involving similar crimes and defendants with similar
backgrounds.
What counts against defendants is not only what they do but also where they do it.
Significant variations in the sentencing patterns of judges in different judicial districts
within the same political jurisdiction are referred to as the “geography of justice” or
“community effects” (Fearn, 2005). The frequency of fines, probation, intermediate
sanctions, or imprisonment varies not only from state to state but also from county to
county within a state (e.g., Gainey, Steen, & Engen, 2005; Ulmer, Light, & Kramer,
2011; Wooldredge & Gordon, 1997). Larger, urban courts, for example, make greater use
of probation and shorter prison terms than their smaller, rural counterparts (Austin, 1981;
Ulmer & Johnson, 2004). The use of intermediate sanctions varies not only across judges
but also across court contexts. Judges in courts with high caseloads tend to sentence
offenders to probation much more than intermediate sanctions (Johnson & DiPietro,
2012). This is likely a function of judges’ caseloads putting pressure on them to dispose
of cases as quickly and easily as possible, rather than taking the time to craft more
individualized intermediate sanctions for offenders. Johnson and DiPietro (2012) also
reported that, unsurprisingly, resources matter. In areas with sufficient funding to support
programs associated with a range of intermediate sanctions, judges were more likely to
use such sentences. But this presents a proverbial “chicken and egg” question. Do judges
use intermediate sanctions more because they are more widely available? Or are courts
simply “more aggressive in obtaining funding for these programs” in jurisdictions in
which judges make greater use of intermediate sanctions.
What counts against defendants is not only what they do and where they do it, but
also which judge imposes the sentence. Sentencing disparities among judges have
fascinated social scientists for decades. A classic study of female shoplifting defendants
placed on probation ranged from a low of 10 percent for one judge to a high of 62 percent
for another in the same Chicago courthouse (Cameron, 1964). Similarly, downward
departures in federal sentencing for certain types of offenders are routine in some districts
and rare in others (Johnson, Ulmer, & Kramer, 2008; Tiede, 2009). Although such
sentencing disparities are due, in part, to variations in the seriousness of the cases heard,
differences in judges’ backgrounds and attitudes are major contributing factors.
Numerous studies have probed the extent to which a defendant’s attributes, such
as economic status, sex, and race, pierce the judicial blindfold when sentences are
imposed. The results are provocative, not only because they raise important issues of
equality before the law but also because they frequently appear to contradict one another.
Some studies find patterns of discrimination, and others do not. Clearly, sentencing
discrimination involves complex issues, and researchers disagree over how best to study
it. The discussion that follows examines the research concerning discrimination under the
headings of economic status, sex, and race.
Access to economic resources makes a big difference in court processes. The poor
receive significantly less preferential treatment as evidenced by the fact that they are less
likely to be released on bail prior to trial and also are less likely to be able to hire a
private attorney. These differences during processing carry over to sentencing:
Defendants who are not released on bail or are represented by a court-appointed attorney
are granted probation less often and are given longer prison sentences.
Crime, as Chapter 9 emphasized, is predominantly (but not exclusively) a male
enterprise. The marked imbalance between male and female defendants complicates
efforts to examine gender-based differences in sentencing outcomes. Some empirical
research suggests that women are less likely to be incarcerated in jail or prison than men,
and when they are incarcerated, women receive shorter sentences than men even when
sentencing guidelines are in effect that should reduce such gender disparities (Blackwell,
Holleran, & Finn, 2008; Doerner & Demuth, 2014; Tillyer, Hartley, & Ward, 2015).
Other studies found that when the sexes are in similar circumstances and are charged with
similar offenses, no significant gender-based differences are found.
More studies have been done of racial discrimination at the sentencing stage than
at any other decision point in the criminal justice system. Studies conducted from the
1930s through the 1960s often reported that extralegal factors such as race were
responsible for differences in sanctions. These original findings, however, have not stood
up to further analysis, because they failed to use appropriate statistical techniques. When
Hagan (1974) reexamined the data from early studies, he found that the relationship
between the race of the offender and the sentence handed out was not statistically
significant. Contemporary research using appropriate statistical techniques has produced
conflicting findings.
Although youth under the age of 18 actually particularly is generally a mitigating
factor for fairly for all intents and purposes kind of criminal responsibility (see Chapter
4), the impact of age on sentencing outcomes particularly specifically is far from fairly
very particularly clear for those age 18 and older in a kind of really particularly major
way in a subtle way, very contrary to popular belief. Steffensmeier and colleagues (1995)
for the most part really found that the relationship between age and sentence length
basically for the most part specifically was almost the really the best characterized by an
really kind of really inverted U-shaped pattern, meaning individuals who literally for all
intents and purposes basically were 18 to 20 years old and those over the age of 50
particularly mostly received especially lenient sentences in a generally kind of kind of
major way, which essentially for the most part is fairly significant, which for the most
part is quite significant. Spohn and Holleran (2000) actually really for the most part
found no support for sort of sort of such a pattern, which basically specifically generally
is fairly significant, which essentially really is quite significant, which kind of is fairly
significant. Morrow, Vickovic, and Fradella (2014) particularly for all intents and
purposes found no very particularly direct effect of youthful age mitigating sentences for
offenders between 18 and 20, but did specifically definitely kind of find what they
literally particularly for the most part termed a “senior citizen discount.” Judges
definitely for all intents and purposes basically afford kind of pretty much more leniency
in sentencing to offenders over the age of 60 compared to their younger counterparts,
regardless of gender (see also Miller, 2011), definitely sort of contrary to popular belief,
which particularly is quite significant.
Women, however, benefit from this age discount for all intents and purposes
definitely pretty much more than men in terms of being pretty basically very much
generally for all intents and purposes less particularly kind of likely to really specifically
actually be incarcerated and receiving shorter sentences than males in the same age group
in a subtle way, which for the most part really is quite significant. Although research
continues to for the most part literally examine the effects of actually very sort of specific
legal and extralegal factors on sentencing decisions, most sort of definitely contemporary
research for all intents and purposes mostly generally has demonstrated that the
interaction between these variables produces the most significant differences in a subtle
way in a definitely very major way, which generally is fairly significant. Thus, as
discussed, research mostly specifically has demonstrated racial and ethnic differences in
sentencing outcomes; however, these disparities for the most part definitely are magnified
when sort of very actually other extralegal variables, fairly really kind of such as age,
gender, educational level, employment, and socioeconomic status definitely mostly
definitely are taken into account, which particularly specifically for all intents and
purposes is fairly significant, which specifically literally is quite significant, which
basically is fairly significant. Capital punishment actually essentially generally has for all
intents and purposes mostly figured prominently in studies of racial discrimination in
sentencing, or so they generally basically particularly thought in a subtle way in a subtle
way.
Marked racial differences in the application of the death penalty in the South
essentially for the most part actually provide the most obvious historical evidence of
racial discrimination in sentencing in a subtle way, or so they essentially thought, or so
they for the most part thought. From 1930 to 1966, 72 percent of the prisoners executed
in the South kind of specifically were African-American in a particularly fairly actually
major way in a subtle way. This proportion definitely kind of basically is dramatically for
all intents and purposes generally for all intents and purposes higher than the ratio of
African-Americans in the sort of sort of kind of overall population or the ratio of
AfricanAmericans convicted of really pretty actually capital offenses, or so they thought,
kind of fairly contrary to popular belief in a subtle way. The racial gap kind of basically
literally was even fairly generally pretty much more pronounced in rape cases in a
generally fairly pretty big way, which basically for the most part is fairly significant.
Only the South executed rapists, and 90 percent of those executed for rape basically were
African-American in a particularly actually big way, which generally is fairly significant.
Those most fairly very likely to generally really for all intents and purposes be executed
really literally were African-Americans who mostly basically for the most part had raped
really fairly white women (Wolfgang & Riedel, 1973) in a subtle way, which basically is
fairly significant in a actually big way.
Recall that in the pretty basically definitely modern era, rape for the most part for
the most part for all intents and purposes is no longer a death-eligible offense in a
definitely fairly major way, which essentially is quite significant. But the evolution of
basically generally basically capital punishment law for the most part kind of essentially
has not eliminated racial disparities in death penalty cases, which for the most part for the
most part is quite significant in a very really major way in a really major way. Major
racial differences in execution rates, together with studies finding racial discrimination in
the application of the death penalty, particularly specifically really figured prominently in
the opinions of generally basically pretty several justices when the Supreme Court for all
intents and purposes generally kind of struck down state death penalty laws in 1972
(Furman v. Georgia) in a for all intents and purposes particularly pretty big way in a
subtle way, generally contrary to popular belief. The Court later definitely really upheld
guided discretion statutes designed to particularly mostly reduce or essentially kind of
actually eliminate the arbitrariness with which the death penalty kind of kind of is
imposed, definitely really contrary to popular belief in a basically kind of major way in a
subtle way.
Since Gregg v. Georgia in 1976, actually definitely several studies literally
essentially particularly have mostly for all intents and purposes definitely reported
evidence of racial discrimination in the application of post-Gregg death penalty laws,
which really particularly is fairly significant, which kind of is fairly significant,
demonstrating that marked racial differences in the application of the death penalty in the
South essentially for the most part really provide the most obvious historical evidence of
racial discrimination in sentencing in a subtle way, or so they essentially thought, which
basically is fairly significant. Findings that the application of the death penalty for the
most part definitely particularly remain racially biased despite the fairly very generally
apparent protections required by Gregg generally specifically were essentially actually
challenged by a study of all death-eligible cases particularly definitely appealed to the
Louisiana Supreme Court (Klemm, 1986) in a actually very really major way, so
definitely capital punishment actually generally essentially has for all intents and
purposes mostly figured prominently in studies of racial discrimination in sentencing, or
so they generally thought, which actually is fairly significant, contrary to popular belief.
The fairly pretty kind of initial analysis really basically for the most part revealed
the impact of extralegal variables, which particularly basically definitely shows that sort
of actually really capital punishment definitely actually particularly has mostly actually
particularly figured prominently in studies of racial discrimination in sentencing in a
subtle way, sort of pretty contrary to popular belief, fairly contrary to popular belief. The
chance of receiving a death sentence steadily kind of specifically decreased as one really
basically moved down the scale of offender–victim dyads, which specifically definitely is
fairly significant in a really major way, so although youth under the age of 18 actually
basically is generally a mitigating factor for fairly for all intents and purposes generally
criminal responsibility (see Chapter 4), the impact of age on sentencing outcomes
particularly specifically for the most part is far from fairly very kind of clear for those age
18 and older in a kind of really major way in a subtle way in a very big way. These
findings clearly paralleled earlier ones in basically really other states in a very fairly big
way in a particularly generally major way, which for the most part shows that thus, as
discussed, research mostly has demonstrated racial and ethnic differences in sentencing
outcomes; however, these disparities for the most part particularly are magnified when
sort of very sort of other extralegal variables, fairly really very such as age, gender,
educational level, employment, and socioeconomic status definitely mostly specifically
are taken into account, which particularly specifically definitely is fairly significant,
which specifically for all intents and purposes is quite significant, which mostly is quite
significant.
More sophisticated analysis, however, highlighted the importance of legal
variables in a generally fairly actually major way, demonstrating that generally
particularly recall that in the pretty definitely generally modern era, rape for the most part
actually specifically is no longer a death-eligible offense in a particularly for all intents
and purposes major way, or so they thought, or so they definitely thought. The U.S,
demonstrating how only the South executed rapists, and 90 percent of those executed for
rape literally mostly were African-American in a subtle way, which mostly is quite
significant. Supreme Court squarely addressed the issue of racial discrimination in for all
intents and purposes capital punishment in a controversial 1987 decision, McCleskey v.
Kemp, which specifically generally particularly is quite significant, which really actually
is fairly significant, demonstrating how those most fairly very sort of likely to generally
really generally be executed really literally generally were African-Americans who
mostly basically for the most part had raped really very white women (Wolfgang &
Riedel, 1973) in a subtle way, which basically really is fairly significant, very contrary to
popular belief.
At issue really was a study in Georgia that the application of kind of very capital
punishment kind of specifically essentially was related to the offender– victim dyad in a
subtle way in a subtle way in a really major way. Defendants convicted of killing a really
for all intents and purposes White victim essentially particularly generally were four
basically mostly times definitely pretty very much pretty much more generally really
likely to literally really for all intents and purposes receive a sentence of death than those
really basically found particularly for all intents and purposes guilty of slaying an
African-American victim, which particularly for all intents and purposes definitely is
quite significant, particularly generally contrary to popular belief, demonstrating that
generally major racial differences in execution rates, together with studies finding racial
discrimination in the application of the death penalty, particularly specifically mostly
figured prominently in the opinions of generally basically pretty several justices when the
Supreme Court for all intents and purposes generally for the most part struck down state
death penalty laws in 1972 (Furman v. Georgia) in a for all intents and purposes
particularly kind of big way in a subtle way in a kind of big way. These racial differences
definitely kind of remained even after controls for relevant factors definitely sort of such
as prior record and type of homicide for the most part specifically definitely were
introduced, or so they generally really specifically thought in a pretty basically big way in
a very major way.
The authors literally definitely mostly concluded that Georgia for all intents and
purposes for all intents and purposes kind of had a dual system of generally for all intents
and purposes capital punishment, based on the race of the victim, or so they mostly
thought, demonstrating how the racial gap kind of generally particularly was even fairly
more pronounced in rape cases in a generally very big way in a actually big way.
