Module 4
Sentencing
A. The Philosophy and Goals of Criminal Sentencing
On June 25, 2013, Oregon became the third state to adopt racial impact
legislation.1 The other two states with similar laws are Connecticut and Iowa. Racial
impact laws require policymakers to conduct racial-impact studies and to prepare racial-
impact statements for any proposed policy changes affecting criminal sentencing,
probation, or parole. Oregon’s law was passed after research showed that black
Oregonians make up only 2% of the state’s population, yet constitute 9% of its prisoners.
About the same time as the Oregon legislation became law, however, North Carolina,
which had been one of the first states to require racial-impact studies, repealed its Racial
Justice Act, noting that an unintended consequence of the legislation had been to
effectively block executions in the state.
Marc Mauer, head of the Washington, D.C.-based Sentencing Project, says, “The
premise behind racial impact statements is that policies often have unintended
consequences that would be best addressed prior to adoption of new initiatives.”3 One
example Mauer gives is that of enhanced criminal penalties associated with drug sales
near school grounds—a law, he says, more likely to be violated by minorities because
they tend to live in areas with greater proximity to schools. Studies of the racial impact of
sentencing practices, Mauer says, force us to examine twin problems in the justice
system: (1) the need for policies and practices that can work effectively to promote public
safety, and (2) the need to reduce disproportionate rates of minority incarceration when
feasible. “These are not competing goals,” says Mauer. “If we are successful in
addressing crime in a proactive way, we will be able to reduce high imprisonment rates;
conversely, by promoting racial justice we will increase confidence in the criminal justice
system and thereby aid public safety efforts.”
Traditional sentencing options have included imprisonment, fines, probation, and
—for very serious offenses—death. Limits on the range of options available to
sentencing authorities are generally specified by law. Historically, those limits have
shifted as understandings of crime and the goals of sentencing have changed. Sentencing
philosophies, or the justifications on which various sentencing strategies are based, are
manifestly intertwined with issues of religion, morals, values, and emotions.4
Philosophies that gained ascendancy at a particular point in history usually reflected more
deeply held social values. Centuries ago, for example, it was thought that crime was due
to sin and that suffering was the culprit’s due. Judges were expected to be harsh. Capital
punishment, torture, and painful physical penalties served this view of criminal behavior.
An emphasis on equitable punishments became prevalent around the time of the
American and French Revolutions, brought about in part by Enlightenment philosophies.
Offenders came to be seen as highly rational beings who intentionally and somewhat
carefully chose their course of action. Sentencing philosophies of the period stressed the
need for sanctions that outweighed the benefits to be derived from criminal activity. The
severity of punishment became less important than quick and certain penalties.
Retribution is a call for punishment based on a perceived need for vengeance.
Retribution is the earliest known rationale for punishment. Most early societies punished
all offenders who were caught. Early punishments were immediate—often without the
benefit of a hearing—and they were often extreme, with little thought given to whether
the punishment “fit” the crime. Death and exile, for example, were commonly imposed,
even for relatively minor offenses. The Old Testament dictum of “an eye for an eye, a
tooth for a tooth”—often cited as an ancient justification for retribution—was actually
intended to reduce the severity of punishment for relatively minor crimes.
Today, retribution corresponds to the just deserts model of sentencing, which
holds that offenders are responsible for their crimes. When they are convicted and
punished, they are said to have gotten their “just deserts.” Retribution sees punishment as
deserved, justified, and even required5 by the offender’s behavior. The primary
sentencing tool of the just deserts model is imprisonment, but in extreme cases capital
punishment (i.e., death) becomes the ultimate retribution. Both in the public’s view and
in political policymaking, retribution is still a primary goal of criminal sentencing.
Incapacitation, the second goal of criminal sentencing, seeks to protect innocent
members of society from offenders who might harm them if not prevented from doing so.
In ancient times, mutilation and amputation of the extremities were sometimes used to
prevent offenders from repeating their crimes. Modern incapacitation strategies separate
offenders from the community to reduce opportunities for further criminality.
Incapacitation, sometimes called the “lock ‘em up approach,” forms the basis for the
modern movement toward prison “warehousing.” Unlike retribution, incapacitation
requires only restraint—and not punishment.
Deterrence uses the example or threat of punishment to convince people that
criminal activity is not worthwhile. Its overall goal is crime prevention. Specific
deterrence seeks to reduce the likelihood of recidivism (repeat offenses) by convicted
offenders, whereas general deterrence strives to influence the future behavior of people
who have not yet been arrested and who may be tempted to turn to crime. Deterrence is
one of the more “rational” goals of sentencing because it is an easily articulated goal and
because it is possible to investigate objectively the amount of punishment required to
deter.
Rehabilitation seeks to bring about fundamental changes in offenders and their
behavior. As in the case of deterrence, the ultimate goal of rehabilitation is a reduction in
the number of criminal offenses. Whereas deterrence depends on a fear of the
consequences of violating the law, rehabilitation generally works through education and
psychological treatment to reduce the likelihood of future criminality. The term
rehabilitation, however, is a misnomer for the kinds of changes that its supporters seek.
Rehabilitation literally means to return a person to his or her previous condition;
however, it is likely that in most cases restoring criminals to their previous state will
result in nothing but a more youthful type of criminality.
Victims of crime and their families are frequently traumatized by their
experiences. Some victims are killed, and others receive lasting physical or emotional
injuries. For many, the world is never the same. The victimized may live in constant fear,
be reduced in personal vigor, and be unable to form trusting relationships. Restoration is
a sentencing goal that seeks to address this damage by making the victim and the
community “whole again.”
Restorative justice (RJ) is also referred to as balanced and restorative justice.
Conceptually, “balance” is achieved by giving equal consideration to community safety
and offender accountability. Restorative justice focuses on “crime as harm, and justice as
repairing the harm.”10 The community safety dimension of the RJ philosophy recognizes
that the justice system has a responsibility to protect the public from crime and from
offenders.11 It also recognizes that the community can participate in ensuring its own
afety. The accountability element defines criminal conduct in terms of obligations
incurred by the offender, both to the victim and to the community.12 RJ also has what
some describe as a competency development element, which holds that offenders who
enter the justice system should leave it more capable of participating successfully in the
wider society than when they entered. Inessence, RJ is community-focused; its primary
goal is improving the quality of life for all members of the community.
B. Indeterminate Sentencing
Whereas the philosophy of criminal sentencing is reflected in the goals of
sentencing we have just discussed, different sentencing practices have been linked to
each goal. During most of the twentieth century, for example, the rehabilitation goal was
influential. Because rehabilitation requires that individual offenders’ personal
characteristics be closely considered in defining effective treatment strategies, judges
were generally permitted wide discretion in choosing from among sentencing options.
Although incapacitation is increasingly becoming the sentencing strategy of choice today,
many state criminal codes still allow judges to impose fines, probation, or widely varying
prison terms, all for the same offense. These sentencing practices, characterized primarily
by vast judicial choice, constitute an indeterminate sentencing model.
Indeterminate sentencing has both a historical and a philosophical basis in the
belief that convicted offenders are more likely to participate in their own rehabilitation if
participation will reduce the amount of time they have to spend in prison. Inmates
exhibiting good behavior will be released early, while recalcitrant inmates will remain in
prison until the end of their terms. For that reason, parole generally plays a significant
role in states that employ the indeterminate sentencing model.
The indeterminate model was also created to take into consideration detailed
differences in degrees of guilt. Under this model, judges can weigh minute differences
among cases, situations, and offenders. Under the indeterminate sentencing model, the
inmate’s behavior while incarcerated is the primary determinant of the amount of time
served. State parole boards wield great discretion under this model, acting as the final
arbiters of the actual sentence served. A few states employ a partially indeterminate
sentencing model. They allow judges to specify only the maximum amount of time to be
served. Some minimum is generally implied by law but is not under the control of the
sentencing authority. General practice is to set one year as a minimum for all felonies,
although a few jurisdictions assume no minimum time at all, making offenders eligible
for immediate parole.
Indeterminate sentencing is still the rule in many jurisdictions, including Georgia,
Hawaii, Iowa, Kentucky, Massachusetts, Michigan, Nevada, New York, North Dakota,
Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, West
Virginia, and Wyoming.14 Beginning in the 1970s, however, the model came under fire
for contributing to inequality in sentencing. Critics claimed that the indeterminate model
allows judges’ personalities and personal philosophies to produce too wide a range of
sentencing practices, from very lenient to very strict. The indeterminate model was also
criticized for perpetuating a system under which offenders might be sentenced, at least by
some judges, more on the basis of personal and social characteristics, such as race,
gender, and social class, than on culpability.
Because of the personal nature of judicial decisions under the indeterminate
model, offenders often depend on the advice and ploys of their attorneys to appear before
a judge who is thought to be a good sentencing risk. Requests for delays are a common
defense strategy in indeterminate sentencing states, where they are used to try to
manipulate the selection of the judge involved in the sentencing decision. Another charge
leveled against indeterminate sentencing is that it tends to produce “dishonesty” in
sentencing. Because of sentence cutbacks for good behavior and involvement in work
and study programs, time served in prison is generally far less than sentences would seem
to indicate. An inmate sentenced to five to ten years, for example, might actually be
released in a couple of years after all gain time, good time, and other special allowances
have been calculated. (Some of the same charges can be leveled against determinate
sentencing schemes under which corrections officials can administratively reduce the
time served by an inmate.) A survey by the Bureau of Justice Statistics found that even
violent offenders released from state prisons during the study period had served, on
average, only 51% of the sentences they originally received.15 Nonviolent offenders had
served even smaller portions of their sentences.
C. Structured Sentencing
Until the 1970s, all 50 states used some form of indeterminate (or partially
indeterminate) sentencing. Eventually, however, calls for equity and proportionality in
sentencing, heightened by claims of racial disparity in the sentencing practices of some
judges,17 led many states to move toward greater control over their sentencing systems.
Critics of the indeterminate model called for the recognition of three fundamental
sentencing principles: proportionality, equity, and social debt. Proportionality refers to
the belief that the severity of sanctions should bear a direct relationship to the seriousness
of the crime committed. Equity means that similar crimes should be punished with the
same degree of severity, regardless of the social or personal characteristics of offenders.
According to the principle of equity, for example, two bank robbers in different parts of
the country, who use the same techniques and weapons, with the same degree of implied
threat, should receive roughly the same sentence even though they are tried under
separate circumstances and in different jurisdictions. The equity principle needs to be
balanced, however, against the notion of social debt. In the case of the bank robbers, the
offender who has a prior criminal record can be said to have a higher level of social debt
than the first-time robber, where all else is equal. Greater social debt, of course, suggests
a more severe punishment or a greater need for treatment.
Beginning in the 1970s, a number of states addressed these concerns by
developing a different model of sentencing, known as structured sentencing. One form of
structured sentencing, called determinate sentencing, requires that a convicted offender
be sentenced to a fixed term that may be reduced by good time (time off for good
behavior) or earned time (time off in recognition of special efforts on the part of the
inmate). Determinate sentencing states eliminated the use of traditional parole and
created explicit standards to specify the amount of punishment appropriate for a given
offense. Determinate sentencing practices also specify an anticipated release date for each
sentenced offender.
In a report that traced the historical development of determinate sentencing, the
National Council on Crime and Delinquency (NCCD) observed that “the term
‘determinate sentencing’ is generally used to refer to the sentencing reforms of the late
1970s.” At that time, the legislatures of California, Illinois, Indiana, and Maine abolished
the parole release decision and replaced indeterminate penalties with fixed (or flat)
sentences that could be reduced by good-time provisions. In response to the then-growing
determinate sentencing movement, a few states developed voluntary/advisory sentencing
guidelines during the 1980s. These guidelines consisted of recommended sentencing
policies that were not required by law but served as guides to judges. Voluntary/advisory
sentencing guidelines are usually based on past sentencing practices and may build on
either determinate or indeterminate sentencing structures. Florida, Maryland,
Massachusetts, Michigan, Rhode Island, Utah, and Wisconsin all experimented with
voluntary/advisory guidelines during the 1980s.
A third model of structured sentencing employs what the NCCD calls
“commission-based presumptive sentencing guidelines.” Presumptive sentencing became
common in the 1980s as states began to experiment with sentencing guidelines developed
by sentencing commissions. These models differed from both determinate and
voluntary/advisory guidelines in three respects. First, presumptive sentencing guidelines
were not developed by the state legislature but by a sentencing commission that often
represented a diverse array of criminal justice and sometimes private interests. Second,
presumptive sentencing guidelines were explicit and highly structured, typically relying
on a quantitative scoring instrument to classify the offense for which a person was to be
sentenced. Third, the guidelines were not voluntary in that judges had to adhere to the
sentencing system or provide a written rationale for departing from it.
Guideline jurisdictions, which specified a presumptive sentence for a given
offense, generally allowed for “aggravating” or “mitigating” circumstances—indicating a
greater or lesser degree of culpability—which judges could take into consideration when
imposing a sentence somewhat at variance from the presumptive term. Aggravating
circumstances call for a tougher sentence and may include especially heinous behavior,
cruelty, injury to more than one person, and so on. Mitigating circumstances, which
indicate that a lesser sentence is called for, are generally similar to legal defenses,
although in this case they only reduce criminal responsibility, not eliminate it. Mitigating
circumstances include such things as cooperation with the investigating authority,
surrender, and good character. Common aggravating and mitigating circumstances are
listed in the “CJ Issues” box.
In 1984, with the passage of the Comprehensive Crime Control Act, the federal
government adopted presumptive sentencing for nearly all federal offenders.18 The act
also addressed the issue of truth in sentencing. Under the old federal system, on average,
good-time credits and parole reduced time served to about one-third of the actual
sentence.19 At the time, the sentencing practices of most states reflected the federal
model. Although sentence reductions may have benefited offenders, they often outraged
victims, who felt betrayed by the sentencing process. The 1984 act nearly eliminated
good-time credits20 and began the process of phasing out federal parole and eliminating
the U.S. Parole Commission (read more about the commission in Chapter 12). 21 The
emphasis on truth in sentencing created, in effect, a sentencing environment of “what you
get is what you serve.” Truth in sentencing, described as “a close correspondence
between the sentence imposed upon those sent to prison and the time actually served
prior to prison release,”22 has become an important policy focus of many state
legislatures and the U.S. Congress. The Violent Crime Control and Law Enforcement Act
of 1994 set aside $4 billion in federal prison construction funds (called Truth in
Sentencing Incentive Funds) for states that adopt truth-in-sentencing laws and are able to
guarantee that certain violent offenders will serve 85% of their sentences.
As originally established, federal sentencing guidelines specified a sentencing
range from which judges had to choose. If a particular case had “atypical features,”
judges were allowed to depart from the guidelines. Departures were generally expected
only in the presence of aggravating or mitigating circumstances—a number of which are
specified in the guidelines.25 Aggravating circumstances may include the possession of a
weapon during the commission of a crime, the degree of criminal involvement (whether
the defendant was a leader or a follower in the criminal activity), and extreme
psychological injury to the victim. Punishments also increase when a defendant violates a
position of public or private trust, uses special skills to commit or conceal offenses, or
has a criminal history. Defendants who express remorse, cooperate with authorities, or
willingly make restitution may have their sentences reduced under the guidelines. Any
departure from the guidelines may, however, become the basis for appellate review
concerning the reasonableness of the sentence imposed, and judges who deviate from the
guidelines were originally required to provide written reasons for doing so.
In 1996, in the case of Melendez v. U.S., 29 the U.S. Supreme Court held that a
government motion requesting that a trial judge deviate from the federal sentencing
guidelines as part of a cooperative plea agreement does not permit imposition of a
sentence below a statutory minimum specified by law. In other words, under Melendez,
although federal judges could depart from the guidelines, they could not accept plea
bargains that would have resulted in sentences lower than the minimum required by law
for a particular type of offense.
A crucial critique of aggravating factors and their use in presumptive sentencing
schemes was offered by the U.S. Supreme Court in 2000 in the case of Apprendi v. New
Jersey. 30 In Apprendi, the Court questioned the fact-finding authority of judges in
making sentencing decisions, ruling that other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum is, in
effect, an element of the crime, which must be submitted to a jury and proved beyond a
reasonable doubt. The case involved Charles Apprendi, a New Jersey defendant who
pleaded guilty to unlawfully possessing a firearm—an offense that carried a prison term
of five to ten years under state law. Before sentence was imposed, however, the judge
found that Apprendi had fired a number of shots into the home of an African American
family living in his neighborhood and concluded that he had done so to frighten the
family and convince them to move. The judge held that statements made by Apprendi
allowed the offense to be classified as a hate crime, which required a longer prison term
under the sentencing enhancement provision of New Jersey’s hate-crime statute than did
the weapons offense to which Apprendi had confessed. The Supreme Court, in
overturning the judge’s finding and sentence, took issue with the fact that after Apprendi
pleaded guilty, an enhanced sentence was imposed without the benefit of a jury-based
fact-finding process. The high court ruled that “under the Due Process Clause of the Fifth
Amendment and the notice and jury trial guarantees of theLSixth Amendment, any fact
(other than prior conviction) that increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”
The Apprendi case essentially says that requiring sentencing judges to consider
facts not proven to a jury violates the federal Constitution. It raised the question of
whether judges anywhere could legitimately deviate from established sentencing
guidelines or apply sentence enhancements based solely on judicial determinations of
aggravating factors—especially when such determinations involve findings of fact that
might otherwise be made by a jury.
The O’Brien case built upon the important 2004 case of Blakely v. Washington,
33 in which the U.S. Supreme Court effectively invalidated any state sentencing schema
that allows judges rather than juries to determine any factor that increases a criminal
sentence, except for prior convictions. The Court found that because the facts supporting
Blakely’s increased sentence were neither admitted by the defendant himself nor found
by a jury, the sentence violated the Sixth Amendment right to trial by jury. The Blakely
decision required that the sentencing laws of eight states be rewritten. Washington state
legislators responded quickly and created a model law for other legislatures to emulate.
The Washington law mandates that “the facts supporting aggravating circumstances shall
be proved to a jury beyond a reasonable doubt,” or, “if a jury is waived, proof shall be to
the court beyond a reasonable doubt.”
In the spring of 1994, California legislators passed the state’s now-famous “three
strikes and you’re out” bill. Amid much fanfare, Governor Pete Wilson signed the “three-
strikes” measure into law, calling it “the toughest and most sweeping crime bill in
California history.” California’s original three-strikes law, which was retroactive in that it
counts offenses committed before the date the legislation was signed, required a sentence
of 25 years to life for threetime felons with convictions for two or more serious or violent
prior offenses. Criminal offenders facing a “second strike” could receive up to double the
normal sentence for their most recent offense. Parole consideration was not available
until at least 80% of the sentence had been served.
In November, 2012, California voters overwhelmingly approved a change to their
state’s three-strikes law.50 The changes mean that now only two categories of offenders
can be sentenced as three-strikers: (1) those who commit new “serious or violent”
felonies as their third offense, and (2) previously released murderers, rapists, or child
molesters who are convicted of a new third strike, even if it is not a “serious or violent”
felony. Another California ballot initiative, Proposition 47, passed in 2014 and changed
many crime from felonies to misdemeanors. Consequently, most instances of drug
possession and all property crimes involving amounts of less than $950 are no longer
felonies in California. Both the 2012 and 2014 changes allow inmates who were
sentenced under older laws to petition for release. Estimates are that at least 10,000
inmates imprisoned in the state at the time of the propositions’ passage are now eligible
for release.
Mandatory sentencing, another form of structured sentencing, deserves special
mention.52 Mandatory sentencing is just what its name implies: a structured sentencing
scheme that mandates clearly enumerated punishments for specific offenses or for
habitual offenders convicted of a series of crimes. Mandatory sentencing, because it is
truly mandatory, differs from presumptive sentencing, which allows at least a limited
amount of judicial discretion within ranges established by published guidelines. Some
mandatory sentencing laws require only modest mandatory prison terms (e.g., three years
for armed robbery), whereas others are much more far-reaching.
Three-strikes laws impose longer prison terms than most earlier mandatory
minimum sentencing laws. California’s original three-strikes law, for example, required
that offenders who were convicted of a violent crime and who had two prior convictions
serve a minimum of 25 years in prison. The law doubled prison terms for offenders
convicted of a second violent felony.53 Three-strikes laws also vary in breadth. The laws
of some jurisdictions stipulate that both of the prior convictions and the current one be for
violent felonies; others require only that the prior convictions be for violent felonies.
Some threestrikes laws count only prior adult convictions, whereas others permit
consideration of juvenile crimes. As noted, California’s 2012 and 2014 revisions of its
three-strikes laws reduce their application to only two categories of offenders.
By passing mandatory sentencing laws, legislators conveyed the message that
certain crimes are deemed especially grave and that people who commit them deserve,
and should expect, harsh sanctions. These laws were often passed in response to public
outcries following heinous or wellpublicized crimes. Research findings on the impact of
mandatory sentencing laws on the criminal justice system have been summarized by
British criminologist Michael Tonry.54 Tonry found that under mandatory sentencing,
officials tend to make earlier and more selective arrest, charging, and diversion decisions.
They also tend to bargain less and to bring more cases to trial.
In 2014, in an effort to modernize drug sentencing policy and to focus the
resources of the criminal justice system squarely on violent offenders and public safety
risks, Senator Dick Durbin (R-Illinois) introduced legislation in the U.S. Senate called the
Smarter Sentencing Act. If passed into law, the act would adjust federal mandatory
sentencing guidelines for a variety of crimes. The intent is to reduce the size of the
federal prison population and costs associated with it. The proposed law reduces
mandatory sentences for drug offenses and expands the ability of nonviolent offenders to
reduce their sentences under the federal Fair Sentencing Act of 2010.
D. Sentencing and Today’s Prison Crisis
Over the past thirty years, mandatory sentencing, three-strikes laws, and other get-
tough on crime and criminals policies have dramatically increased the use of
incarceration as a sentencing option. Although crime rates began to fall throughout the
nation beginning in the mid-1990s (see Chapter 2), more and more convicted offenders
were sent to prison. Some people have argued that increasing rates of imprisonment
produced lower crime rates, but it is noteworthy that many new prison admissions came
from drug convictions and were largely the result of the nation’s “war on drugs”
(discussed in more detail in Chapter 15), not the consequence of violent or property
crimes. As you’ll recall from Chapter 2, drug crimes are excluded from the calculations
used by the FBI and BJS in determining crime rates. Figure 11-2 contrasts combined
rates of major violent and property crimes with the growth of incarceration between 1978
and 2012. As can be seen, while crime rates dipped by more than 30%, the number of
persons sent to prison increased by almost 300%.
Rising incarceration rates have led to significantly overcrowded prisons, and have
reached the point where they are imposing huge financial burdens on both state and
federal governments. In 2014, the Washington, D.C.-based Center on Budget and Policy
Priorities found that sentencing policies, not crime rates, are the biggest drivers of rising
incarceration rates.
The term “medicolegal” pertains to medicine and the law. A medicolegal death
investigator works in the combined field of medicine and law, and is commonly referred
to as a “coroner investigator” or a “death investigator.” As a death investigator, I am
responsible for establishing a differential diagnosis of the cause and manner of death by
conducting a competent and thorough investigation of the circumstances surrounding
death; I also determine the decedent’s identity and notify the nextof-kin that the death has
occurred. In Adams and Broomfield Counties (Colorado), all deaths are reported to the
Office of the Coroner. It is my responsibility to determine when the circumstances of a
death require further investigation in accordance with Colorado Revised Statutes.
A coroner’s office is responsible for accurately determining the cause and manner
of death. The cause of death refers to the injury or disease that brought about the death.
The manner of death refers to the circumstances surrounding the cause of death. In
Colorado, the manner of death is classified into one of five categories: natural, accident,
homicide, suicide, and undetermined. Most deaths are natural and occur under the
attendance of a physician, such as in a hospital.
A death investigator will spend the majority of his/her time liaising with
physicians to establish the manner and cause of death. If a death is unattended, such as a
residential death, a death investigator will liaise with other law enforcement officials,
crime scene investigators, families, and witnesses in order to conduct a competent
investigation of the circumstances surrounding the death. It is imperative that the scene
investigation is thorough so that the cause and manner of death can be accurately
determined.
Despite how media depicts scene investigations, a death investigator is
responsible for completing a forensic examination of the scene and the deceased;
documenting things such as trauma, injuries, identifying marks, postmortem changes, and
indications of disease processes and exposure to toxins. After the scene investigation is
complete, a death investigator will either release the body to a mortuary or transport the
body to the coroner’s office for further investigation, such as an autopsy. Other major job
duties include collecting and inventorying the decedent’s medications, securing the
decedent’s property, identifying and collecting evidence, reviewing medical records,
assisting in autopsies, and testifying in court.
The use of court-ordered community service, home detention, day reporting, drug
treatment, psychological counseling, victim–offender programming, or intensive
supervision in lieu of other, more traditional sanctions such as imprisonment and fines. A
concept that prioritizes the use of alternatives to incarceration for persons convicted of
eligible nonviolent offenses, standardizes the use of risk assessment instruments in
pretrial detention, authorizes the use of earlyrelease mechanisms for prisoners who meet
eligibility requirements, and reinvests savings from such initiatives into effective crime-
prevention programs.
E. Innovations In Sentencing
In an ever-growing number of cases, innovative judges in certain jurisdictions are
using discretionary sentencing to impose truly unique punishments. Faced with prison
overcrowding, high incarceration costs, and continued public calls for retribution, some
judges have used shaming strategies to deter wrongdoers. At least one Florida court
ordered those convicted of drunk driving to put a “Convicted DUI” sticker on their
license plates. Similarly, a few years ago, Boston courts began ordering men convicted of
sexual solicitation to spend time sweeping streets in Chinatown, an area known for
prostitution. The public was invited to watch men sentenced to the city’s “John Sweep”
program clean up streets and alleyways littered with used condoms and sexual
paraphernalia. In still other examples, an Arkansas judge made shoplifters walk in front
of the stores they stole from, carrying signs describing their crimes, and in California, a
purse snatcher was ordered to wear noisy tap dancing shoes whenever he went out in
public.
There is considerable support in criminal justice field for shaming as a crime-
reduction strategy. Australian criminologist John Braithwaite, for example, found
shaming to be a particularly effective strategy because, he said, it holds the potential to
enhance moral awareness among offenders, thereby building conscience and increasing
inner control.61 Dan Kahan, a professor at the University of Chicago Law School, points
out that “shame supplies the main motive why people obey the law, not so much because
they’re afraid of formal sanctions, but because they care what people think about them.”
Alternative sanctions include the use of court-ordered community service, home
detention, day reporting, drug treatment, psychological counseling, victim–offender
programming, or intensive supervision in lieu of other, more traditional, sanctions like
imprisonment and fines. Many of these strategies are discussed in more detail in the next
chapter. It is important to note here, however, that a new framework, known as justice
reinvestment, is starting to make a significant impact on sentencing authorities. Justice
reinvestment is a concept that prioritizes the use of alternatives to incarceration for
persons convicted of eligible nonviolent offenses, standardizes the use of risk
assessments instruments in pretrial detention, authorizes the use of early-release
mechanisms for prisoners who meet eligibility requirements, and reinvests savings from
such initiatives into effective crime-prevention programs.63 In general, justice
reinvestment strategies included efforts to scale back certain harsh sentencing provisions
and to reduce returns to prison for probation and parole violators.
As the term itself indicates, some recent legislative measures associated with the
strategy also include statutory mechanisms for reinvesting savings that have been
achieved through reducing prison populations into other aspects of the criminal justice
system—including evidence-based in-prison treatment programs and local law
enforcement efforts designed to deter crime.64 One of those legislative initiatives, North
Carolina’s 2011 Justice Reinvestment Act, expands post-release supervision to all felons
and limits the authority of parole officials and judges to revoke post-release supervision.
The law also requires supervision agencies to concentrate resources on high-risk
individuals and empowers probation officers to employ sanctions to increase
accountability in a manner that is both cost-effective and proven to have a greater impact
on reducing recidivism.
A report by the Sentencing Project identified Georgia, Hawaii, Kansas, Missouri,
Oklahoma, and Pennsylvania as leaders in the justice reinvestment movement.66 Texas
might be added to the list, as a 2013 study by the Council of State Governments
determined, for example, that Texas saved almost $2 billion over five years by focusing
on justice reinvestment efforts, including savings of $1.5 billion on prison constructions
and more than $340 million in averted annual operations costs of confinement facilities.
By 2013, more than half of the states had implemented comprehensive justice
reinvestment programs designed to shift resources from incarceration toward treatment
and prevention. As prison populations continue to rise, alternative strategies are likely to
become even more attractive. A number of questions must be answered, however, before
most alternative sanctions can be employed with confidence, including whether
alternative sentencing programs increase the threat to public safety, whether alternative
sanctions are cost-effective, and how program outcomes should be judged.
F. The Presentence Investigation
Before imposing sentence, a judge may request information on the background of
a convicted defendant. This is especially true in indeterminate sentencing jurisdictions,
where judges retain considerable discretion in selecting sanctions. One of the drivers
behind many sentencing decisions today is offender risk and needs assessment (RNA). In
one report, the National Center for State Courts identified certain factors that increase the
likelihood of reoffending, the presence of which suggest that prison terms and removal
from the community are better sentencing options than probation.68 High-risk factors
identified include (1) antisocial personality patterns (impulsiveness, pleasure seeking,
aggressive and irritable traits), (2) procriminal attitudes (negative attitudes toward the
law), (3) social supports for crime (criminal friends), (4) substance abuse, (5) family and
marital problems, (6) poor school or work performance, and (7) a lack of involvement in
prosocial recreational and leisure activities.69 Factors that are likely to increase the
chances for rehabilitation, and which might indicate that probation or reduced prison
terms are appropriate, include a good job record, satisfactory educational attainment,
strong family ties, church attendance, no prior arrests for violent offenses, and
psychological stability.
Information about a defendant’s background often comes to the judge in the form
of a presentence investigation (PSI) report. The task of preparing presentence reports
usually falls to a probation or parole office. Presentence reports take one of three forms:
(1) a detailed written report on the defendant’s personal and criminal history, including
an assessment of present conditions in the defendant’s life (often called the long form);
(2) an abbreviated written report summarizing the information most likely to be useful in
a sentencing decision (the short form); and (3) a verbal report to the court made by the
investigating officer based on field notes but structured according to established
categories. A presentence report is much like a résumé, except that it focuses on what
might be regarded as negative as well as positive life experiences.
The data on which a presentence report is based come from a variety of sources.
The Federal Bureau of Investigation’s National Crime Information Center (NCIC), begun
in 1967, contains computerized information on people wanted for criminal offenses
throughout the United States. Individual jurisdictions also maintain criminal records
repositories that can provide comprehensive files on the criminal history of those who
have been processed by the justice system. Sometimes the defendant provides much of
the information in the presentence report. In this case, efforts must be made to
corroborate the defendant’s information. Unconfirmed data are generally marked on the
report as “defendant-supplied data” or simply “unconfirmed.”
In a presentence report, almost all third-party data are subject to ethical and legal
considerations. The official records of almost all agencies and organizations, though
often an ideal source of information, are protected by state and federal privacy
requirements. In particular, the federal Privacy Act of 197470 may limit access to these
records. Investigators must first check on the legal availability of all records before
requesting them and must receive in writing the defendant’s permission to access the
records. Other public laws, among them the federal Freedom of Information Act,71 may
make the presentence report available to the defendant, although courts and court officers
have generally been held to be exempt from the provision of such statutes.
Jurisdictions vary in their use of presentence reports. Federal law mandates
presentence reports in federal criminal courts and specifies 15 topical areas that each
report must cover. The 1984 federal Determinate Sentencing Act directs report writers to
include information on the classification of the offense and of the defendant under the
offense-level and criminal history categories established by the statute. Some states
require presentence reports only in felony cases, and others require them in cases where
the defendant faces the possibility of incarceration for six months or more. Other states
have no requirement for presentence reports beyond those ordered by a judge. Report
writing, rarely anyone’s favorite task, may seriously tax the limited resources of
probation agencies. In September 2004, officers from the New York City Department of
Probation wrote 2,414 presentence investigation reports for adult offenders and 461
reports for juvenile offenders, averaging about 10 reports per probation officer per month.
G. The Victim—Forgotten No Longer
Thanks to a grassroots resurgence of concern for the plight of victims that began
in this country in the early 1970s, the sentencing process now frequently includes
consideration of the needs of victims and their survivors.73 In times past, although
victims might testify at trial, the criminal justice system frequently downplayed a
victim’s experience, including the psychological trauma engendered both by having been
a victim and by having to endure the criminal proceedings that bring the criminal to
justice. That changed in 1982, when the President’s Task Force on Victims of Crime gave
focus to a burgeoning victims’ rights movement and urged the widespread expansion of
victims’ assistance programs during what was then their formative period.74 Victims’
assistance programs today offer services in the areas of crisis intervention and follow-up
counseling and help victims secure their rights under the law.
Following successful prosecution, some victims’ assistance programs also advise
proposed in 1998,77 but its wording was too restrictive for it to gain endorsement from
victims’ organizations.78 The next year, a new amendment was proposed by the Senate
Judiciary Committee’s Subcommittee on the Constitution, Federalism, and Property, but
it did not make it to the Senate floor. The U.S. Department of Justice, which had
previously supported the measure, reversed its position due to a provision in the proposed
amendment that gives crime victims the right to be notified of any state or federal grant
of clemency. The U.S. attorney general apparently believed that the provision would
impede the power of the president. The legislation also lacked the support of then-
President Bill Clinton and was officially withdrawn by its sponsors in 2000.
Much of the philosophical basis of today’s victims’ movement can be found in the
restorative justice model, which was discussed briefly earlier in this chapter. Restorative
justice emphasizes offender accountability and victim reparation. Restorative justice also
provides the basis for victims’ compensation programs, which are another means of
recognizing the needs of crime victims. Today, all 50 states have passed legislation
providing for monetary payments to victims of crime. Such payments are primarily
designed to compensate victims for medical expenses and lost wages. All existing
programs require that applicants meet certain eligibility criteria, and most set limits on
the maximum amount of compensation that can be received. Generally disallowed are
claims from victims who are significantly responsible for their own victimization, such as
those who are injured in fights they provoke. In 2002, California’s victims’ compensation
program, the largest in the nation, provided $117 million to more than 50,000 victims for
crime-related expenses.
In 2001, the USA PATRIOT Act amended the Victims of Crime Act of 1984 to
make victims of terrorism and their families eligible for victims’ compensation
payments.82 It also created an antiterrorism emergency reserve fund to help provide
compensation to victims of terrorism. A year earlier, in November 2000, the federal
Office for Victims of Crime (OVC) created the Terrorism and International Victims Unit
(TIVU) to develop and manage programs and initiatives that help victims of domestic
and international terrorism, mass violence, and crimes that have transnational
dimensions.
Another consequence of the national victims’ rights movement has been a call for
the use of victim-impact statements before sentencing. A victim-impact statement is
generally a written document describing the losses, suffering, and trauma experienced by
the crime victim or by the victim’s survivors. Judges are expected to consider such
statements in arriving at an appropriate sanction for the offender.
The drive to mandate inclusion of victim-impact statements in sentencing
decisions, already required in federal courts by the 1982 Victim and Witness Protection
Act, was substantially enhanced by the “right-of-allocution” provision of the Violent
Crime Control and Law Enforcement Act of 1994. Victim-impact statements played a
prominent role in the sentencing of Timothy McVeigh, who was convicted of the 1995
bombing of the Murrah Federal Building in Oklahoma City and was executed in 2001.
Some states, however, have gone further than the federal government. In 1984, the state
of California, for example, passed legislation giving victims a right to attend and
participate in sentencing and parole hearings.86 Approximately 20 states now have laws
requiring citizen involvement in sentencing, and all 50 states and the District of Columbia
“allow for some form of submission of a victim-impact statement either at the time of
sentencing or to be contained in the presentence investigation reports” made by court
officers.87 Where written victim-impact statements are not available, courts may invite
the victim to testify directly at sentencing.
An alternative to written impact statements and to the appearance of victims at
sentencing hearings is the victim-impact video. Some contemporary victim-impact videos
display photo montages of the victim and are set to music and narrated. In 2008, for
example, the U.S. Supreme Court rejected an appeal from a death row inmate wanting to
exclude just such a digitized narrative set to music by Enya that had been played to the
jury during the sentencing phase of his trial.
H. Modern Sentencing Options
Sentencing is fundamentally a risk-management strategy designed to protect the
public while serving the ends of retribution, incapacitation, deterrence, rehabilitation, and
restoration. Because the goals of sentencing are difficult to agree on, so too are sanctions.
Lengthy prison terms do little for rehabilitation, and community-release programs can
hardly protect the innocent from offenders bent on continuing criminality. Assorted
sentencing philosophies continue to permeate state-level judicial systems. Each state has
its own sentencing laws, and frequent revisions of those statutes are not uncommon.
Because of huge variation from one state to another in the laws and procedures that
control the imposition of criminal sanctions, sentencing has been called “the most
diversified part of the Nation’s criminal justice process.”
In jurisdictions that employ indeterminate sentencing, fines, probation, and
imprisonment are widely available to judges. The option selected generally depends on
the severity of the offense and the judge’s best guess as to the likelihood of the
defendant’s future criminal involvement. Sometimes two or more options are combined,
such as when an offender is fined and sentenced to prison or placed on probation and
fined in support of restitution payments. Jurisdictions that operate under presumptive
sentencing guidelines generally limit the judge’s choice to only one option and often
specify the extent to which that option can be applied. Dollar amounts of fines, for
example, are rigidly set, and prison terms are specified for each type of offense. The
death penalty remains an option in a fair number of jurisdictions, but only for a highly
select group of offenders.
Although the fine is one of the oldest forms of punishment, the use of fines as
criminal sanctions suffers from built-in inequities and a widespread failure to collect
them. Inequities arise when offenders with vastly different financial resources are fined
similar amounts. A fine of $100, for example, can place a painful economic burden on a
poor defendant but is negligible when imposed on a wealthy offender. Nonetheless, fines
are once again receiving attention as a serious sentencing alternative. One reason for the
renewed interest is the stress placed on state resources by burgeoning prison populations.
The extensive imposition of fines not only results in less crowded prisons but can
contribute to state and local coffers and can lower the tax burden of law-abiding citizens.
A National Institute of Justice (NIJ) survey found that an average of 86% of
convicted defendants in courts of limited jurisdiction receive fines as sentences, some in
combination with another penalty.93 Fines are also widely used in courts of general
jurisdiction, where the NIJ study found judges imposing fines in 42% of all cases that
came before them for sentencing. Some studies estimate that more than $1 billion in fines
are collected nationwide each year. Fines are often imposed for relatively minor law
violations, such as driving while intoxicated, reckless driving, disturbing the peace,
disorderly conduct, public drunkenness, and vandalism. Judges in many courts, however,
report the use of fines for relatively serious violations of the law, including assault, auto
theft, embezzlement, fraud, and the sale and possession of various controlled substances.
Fines are most likely to be imposed where the offender has both a clean record and the
ability to pay.
A solution to both objections can be found in the Scandinavian system of day
fines. The day-fine system is based on the idea that fines should be proportionate to the
severity of the offense but also need to take into account the financial resources of the
offender. Day fines are computed by first assessing the seriousness of the offense, the
defendant’s degree of culpability, and his or her prior record as measured in “days.” The
use of days as a benchmark of seriousness is related to the fact that, without fines, the
offender could be sentenced to a number of days (or months or years) in jail or prison.
The number of days an offender is assessed is then multiplied by the daily wages that
person earns. Hence, if two people are sentenced to a five-day fine, but one earns only
$20 per day and the other $200 per day, the first would pay a $100 fine and the second
$1,000.
I. The Ultimate Sanction
Some crimes are especially heinous and seem to cry out for extreme punishment.
In 2008, for example, a 28-year-old grocery store stock clerk named Kevin Ray
Underwood was sentenced to death in the atrocious murder of a ten-year-old girl in what
authorities said was an elaborate plan to cannibalize the girl’s flesh.99 Underwood had
been the girl’s neighbor in Purcell, Oklahoma, and her mutilated body was discovered in
his apartment covered with deep saw marks. Investigators told reporters that Underwood
had sexually assaulted the little girl and planned to eat her corpse using the meat
tenderizer and barbecue skewers that they confiscated from his kitchen. “In my 24 years
as a prosecutor, this ranks as one of the most heinous and atrocious cases I’ve ever been
involved with,” said McClain County Prosecutor Tim Kuykendall.
Many states today have statutory provisions that provide for a sentence of capital
punishment for especially repugnant crimes (known as capital offenses). Estimates are
that more than 18,800 legal executions have been carried out in the United States since
1608, when records began to be kept on capital punishment.100 Although capital
punishment was widely used throughout the eighteenth and nineteenth centuries, the mid-
twentieth century offered a brief respite in the number of offenders legally executed in
this country. Between 1930 and 1967, the year when the U.S. Supreme Court ordered a
nationwide stay of pending executions, nearly 3,800 people were put to death. The peak
years were 1935 and 1936, with nearly 200 legal killings each year. Executions declined
substantially every year thereafter. Between 1967 and 1977, a de facto moratorium
existed, with no executions carried out in any U.S. jurisdiction. Following the lifting of
the moratorium, executions resumed (Figure 11-6). In 1983, only 5 offenders were put to
death, whereas 39 were executed nationwide in 2013.101 A modern record for executions
was set in 1999, with 98 executions—35 in Texas alone.
The list of crimes punishable by death under federal jurisdiction in the United
States increased dramatically with passage of the Violent Crime Control and Law
Enforcement Act of 1994 and was expanded still further by the 2001 USA PATRIOT
Act. The list now includes a total of about 60 offenses. State legislators have also worked
to expand the types of crimes for which a death sentence can be imposed. In 1997, for
example, the Louisiana Supreme Court upheld the state’s year-old child rape statute,
which allows for the imposition of a capital sentence when the victim is younger than 12
years of age. The case involved an AIDS-infected father who raped his three daughters,
ages five, eight, and nine. In upholding the father’s death sentence, the Louisiana court
ruled that child rape is “like no other crime.”109 In 2008, however, in the case of
Kennedy v. Louisiana, the U.S. Supreme Court ruled that the Eighth Amendment bars
Louisiana (and other states) from imposing the death penalty for the rape of a child where
the crime did not result, and was not intended to result, in the victim’s death.
The legal process through which a capital sentence is carried to conclusion is
fraught with problems. One serious difficulty centers on the fact that automatic review of
all death sentences by appellate courts and constant legal maneuvering by defense
counsel often lead to a dramatic delay between the time the sentence is handed down and
the time it is carried out. Today, an average of 12 years and 9 months passes between the
imposition of a death sentence and execution.113 Such lengthy delays, compounded by
uncertainty over whether an execution will ever occur, directly contravene the generally
accepted notion that punishment should be swift and certain.
Even death row inmates can undergo life-altering changes. When that happens,
long-delayed executions can become highly questionable events. The case of Stanley
“Tookie” Williams, who was executed at California’s San Quentin Prison in 2005 at age
51, is illustrative.114 Williams, self-described cofounder of the infamous Crips street
gang in the early 1970s, was sentenced to die for the brutal shotgun murders of four
people during a robbery 26 years earlier. In 1993, however, he experienced what he
called a “reawakening” and began working from prison as an antigang crusader. Williams
found a sympathetic publisher and wrote a series of children’s books titled Tookie Speaks
Out against Gang Violence. The series was intended to help urban youth reject the lure of
gang membership and embrace traditional values. He also wrote Life in Prison, an
autobiography describing the isolation and despair experienced by death row inmates. In
his final years, Williams worked with his editor, Barbara Cottman Becnel, to create the
Internet Project for Street Peace, a demonstration project linking teens from the rough-
and-tumble streets of Richmond, California, to peers in Switzerland in an effort to help
them avoid street violence. In 2001, Williams was nominated for the Nobel Peace Prize
by a member of the Swiss Parliament and for the Nobel Prize in Literature by a number
of college professors. Pleas to spare his life, which came from Jesse Jackson, anti–death
penalty activist Sister Helen Prejean, the National Association for the Advancement of
Colored People (NAACP), and others, were rejected by Governor Arnold
Schwarzenegger who said that “there is no reason to second-guess the jury’s decision of
guilt or raise significant doubts or serious reservations about Williams’ convictions and
death sentence.”
In a speech before the American Bar Association in 1989, then-Chief Justice
William Rehnquist called for reforms of the federal habeas corpus system, which, at the
time, allowed condemned prisoners virtually limitless opportunities for appeal. Writs of
habeas corpus (Latin for “you have the body”), which require that a prisoner be brought
into court to determine if he or she is being legally held, form the basis for many federal
appeals made by prisoners on state death rows. In 1968, Chief Justice Earl Warren called
the right to file habeas petitions, as guaranteed under the U.S. Constitution, the “symbol
and guardian of individual liberty.” Twenty years later, however, Rehnquist claimed that
writs of habeas corpus were being used indiscriminately by death row inmates seeking to
delay executions even where grounds for delay did not exist. “The capital defendant does
not need to prevail on the merits in order to accomplish his purpose,” said Rehnquist. “He
wins temporary victories by postponing a final adjudication.”
Some recent statements by Supreme Court justices have indicated that long delays
caused by the government in carrying out executions may render the punishment
unconstitutionally cruel and unusual. One example comes from the 1998 case of Elledge
v. Florida, 123 where the execution of William D. Elledge had been delayed for 23 years.
Although the full Court refused to hear the case, Justice Stephen Breyer observed that
“[t]wenty-three years under sentence of death is unusual—whether one takes as a
measuring rod current practice or the practice in this country and in England at the time
our Constitution was written.” Moreover, wrote Breyer, execution after such a long delay
could be considered cruel because Elledge “has experienced that delay because of the
State’s own faulty procedures and not because of frivolous appeals on his own part.”
Elledge died on death row at the Union Correctional Institution in Florida in 2008. He
had been under sentence of death for 34 years; at the time of his death from asthma, he
was 57 years old.
J. Opposition to Capital Punishment
Thirty years ago, David Magris, who was celebrating his 21st birthday with a
crime spree, shot Dennis Tapp in the back during a holdup, leaving Tapp a paraplegic.
Tapp had been working a late-night shift, tending his father’s quick-serve gas station.
Magris went on to commit more robberies that night, killing 20-year-old Steven
Tompkins in a similar crime. Although Magris was sentenced to death by a California
court, the U.S. Supreme Court overturned the state’s death-penalty law in 1972, opening
the door for Magris to be paroled in 1985. Long before Magris was freed from prison,
however, Tapp had already forgiven him. A few minutes after the shooting happened,
Tapp regained consciousness, dragged himself to a telephone, and called for help.
The Death Penalty Information Center claims that 142 people in 26 states were
freed from death row between 1973 and late 2012 after it was determined that they were
innocent of the capital crimes of which they had been convicted (Figure 11-8).127 One
study of felony convictions that used analysis of DNA to provide postconviction evidence
of guilt or innocence found 28 cases in which defendants had been wrongly convicted
and sentenced to lengthy prison terms. The study, Convicted by Juries, Exonerated by
Science, effectively demonstrated that the judicial process can be flawed.128 DNA
testing can play a critical role in identifying wrongful convictions because, as Barry
Scheck and Peter Neufeld, cofounders of the Innocence Project at the Benjamin N.
Cardozo School of Law, point out, “Unlike witnesses who disappear or whose
recollections fade over time, DNA in biological samples can be reliably extracted
decades after the commission of the crime. The results of such testing have invariably
been found to have a scientific certainty that easily outweighs the eyewitness
identification testimony or other direct or circumstantial proof that led to the original
conviction.”129 “Very simply,” say Scheck and Neufeld, “DNA testing has demonstrated
that far more wrongful convictions occur than even the most cynical and jaded scholars
had suspected.”
A recent NIJ-funded study found 10 factors that can lead to a wrongful conviction
of an innocent defendant instead of a dismal or acquittal.133 Those factors are shown in
Figure 11-9. The NIJ study also distinguished between cases in which erroneous
convictions are returned and near misses, or cases in which innocent defendants came
close to being convicted but were eventually acquitted. Cases that lead to erroneous
convictions and those that lead to near misses were found to share many of the same
characteristics, including false confession, official misconduct, eyewitness
misidentification, or an incorrect tip to the police. Factors that lead to an erroneous
conviction included a punitive state culture (a just deserts mind-set in which prosecutors
seek convictions at all costs), forensic error (either incorrect or failed crime scene or
crime laboratory analysis), weak facts still pressed by the prosecution, or a mistaken or
lying eyewitness. Factors that led to a near miss included, but were not limited to, an
older defendant with no criminalLhistory, a strong defense, or prosecutorial disclosure of
critical evidence.
In 2004, in recognition of the potential of DNA testing to exonerate the innocent,
President George W. Bush signed the Innocence Protection Act135 into law. The
Innocence Protection Act provides federal funds to eliminate the backlog of unanalyzed
DNA samples in the nation’s crime laboratories136 and sets aside money to improve the
capacity of federal, state, and local crime laboratories to conduct DNA analyses.137The
act also facilitates access to postconviction DNA testing for those serving time in
state138 or federal prisons or on death row and sets forth conditions under which a
federal prisoner asserting innocence may obtain postconviction DNA testing of specific
evidence. Similarly, the legislation requires the preservation of biological evidence by
federal law enforcement agencies for any defendant under a sentence of imprisonment or
death.
During the 1970s and 1980s, the deterrent effect of the death penalty became a
favorite subject for debate in academic circles.145 Studies of states that had eliminated
the death penalty failed to show any increase in homicide rates.146 Similar studies of
neighboring states, in which jurisdictions retaining capital punishment were compared
with those that had abandoned it, also failed to demonstrate any significant
differences.147 Although death penalty advocates remain numerous, few still argue for
the penalty based on its deterrent effects. One study that has found support for use of the
death penalty as a deterrent was reported in 2001 by Hashem Dezhbakhsh and his
colleagues at Emory University.
The claim that the death penalty is discriminatory is hard to investigate. Although
past evidence suggests that blacks and other minorities in the United States have been
disproportionately sentenced to death,152 more recent evidence is not as clear. At first
glance, disproportionality seems apparent: 45 of the 98 prisoners executed between
January 1977 and May 1988 were African American or Hispanic, and 84 of the 98 had
been convicted of killing whites.153 A 1996 Kentucky study found that blacks accused of
killing whites in that state between 1976 and 1991 had a higher-than-average probability
of being charged with a capital crime and of being sentenced to die than did homicide
offenders of other races.154 For an accurate appraisal to be made, however, any claims of
disproportionality must go beyond simple comparisons with racial representation in the
larger population and must somehow measure both frequency and seriousness of capital
crimes between and within racial groups. Following that line of reasoning, the Supreme
Court, in the 1987 case of McCleskey v. Kemp, 155 held that a simple showing of racial
discrepancies in the application of the death penalty does not constitute a constitutional
violation. A 2001 study of racial and ethnic fairness in federal capital punishment
sentences attempted to go beyond mere percentages in its analysis of the role played by
race and ethnicity in capital punishment sentencing decisions.156 Although the study,
which closely reviewed 950 capital punishment cases, found that approximately 80% of
federal death row inmates are African American, researchers found “no intentional racial
or ethnic bias in how capital punishment was administered in federal cases.”157
Underrepresented groups were more likely to be sentenced to death, “but only because
they are more likely to be arrested on facts that could support a capital charge, not
because the justice system acts in a discriminatory fashion,” the report said.
On February 11, 2004, 47-year-old Edward Lewis Lagrone was executed by lethal
injection in Huntsville, Texas, for the murder of three people in their home. Earlier,
Lagrone had molested and impregnated one of the victims, a ten-year-old child, whom he
shot in the head as she was trying to protect her 19-month-old sister.161 Lagrone also
killed two of the child’s great-aunts who were in the house at the time of the attack. One
of the women, 76-year-old Caola Lloyd, was deaf, blind, and bedridden with cancer.
Prior to the killings, Lagrone had served 7 years of a 20-year prison sentence for another
murder and was on parole. “He’s a poster child to justify the death penalty,” said David
Montague, the Tarrant County assistant district attorney who prosecuted Lagrone.
The U.S. Supreme Court has for some time served as a sounding board for issues
surrounding the death penalty. One of the Court’s earliest cases in this area was
Wilkerson v. Utah (1878),164 which questioned shooting as a method of execution and
raised Eighth Amendment claims that firing squads constituted a form of cruel and
unusual punishment. The Court disagreed, however, contrasting the relatively civilized
nature of firing squads with the various forms of torture often associated with capital
punishment around the time the Bill of Rights was written.
Similarly, the Court supported electrocution as a permissible form of execution in
In re Kemmler (1890).165 In Kemmler, the Court defined cruel and unusual methods of
execution as follows: “Punishments are cruel when they involve torture or a lingering
death; but the punishment of death is not cruel, within the meaning of that word as used
in the Constitution. It implies there is something inhuman and barbarous, something more
than the mere extinguishing of life.”
Many other states with statutes similar to Georgia’s were affected by the Furman
ruling but moved quickly to modify their procedures. What evolved was the two-step
procedure used today in capital cases. In the first stage, guilt or innocence is decided; if
the defendant is convicted of a crime for which execution is possible or if he pleads guilty
to such an offense, a second (or penalty) phase ensues. The penalty phase, a kind of mini-
trial, generally permits the introduction of new evidence that may have been irrelevant to
the question of guilt but that may be relevant to punishment, such as drug use or
childhood abuse. In most death penalty jurisdictions, juries determine the punishment.
However, in Arizona, Idaho, Montana, and Nebraska, the trial judge sets the sentence in
the second phase of capital murder trials, and Alabama, Delaware, Florida, and Indiana
allow juries only to recommend a sentence to the judge. The Supreme Court formally
approved the two-step trial procedure in Gregg v. Georgia (1976).
