KIM WOODS Criminal Justice Multiple Choice

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P A R T I V

Post-Conviction Processes

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Step 13

The Punishment Dilemma

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In the previous chapter, we learned about the important events in a criminal trial. Once an individual has been convicted or has pled guilty, the focus of the court changes from determination of guilt to the determination of an appropriate penalty. This role is generally believed to be a sentencing agent’s (i.e., a judge’s or jury’s) most difficult task. The violation of all laws carries some potential penalty, even if the sentence is ultimately suspended. Before we can discuss the imposition of penalties, however, we must first examine where sentencing agents derive their power, what philosophies guide sentencing, and what options are available at sen- tencing. This chapter focuses on these three areas.

DISCRETION

Determining penalties is yet another stage in the court system that allows for and requires discretion (i.e., the power or ability to act according to one’s judgment or beliefs). Just as prosecutors need to make choices about what charges to file, sen- tencing agents need to be able to make reasoned choices about which sentences fit the crime. Of course, they cannot make choices that are ludicrous or unconstitu- tional. The choices they make must fit within the limits of their discretion (that is, how they can legally exercise their discretion) or they run the risk of being over- turned or changed at the appellate level.

The first factor that limits judges and juries in the sentencing process is the U.S. Constitution. According to the Eighth Amendment, sentences must not be “cruel and unusual.” Generally, this means that sentences cannot involve torture or other brutal practices. An early U.S. Supreme Court case that involved this issue was Weems v. United States (1910). Among other things, Weems had been sen- tenced to fifteen years of “hard and painful labor” in chains for making false entries into official records while working for the U.S. government in the Philippine Islands. The Supreme Court ruled that the sentence was not proportionate to

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Weems’ offense and thus invalidated it. Sentencing agents, then, have to ensure that the sentences they impose are not too disproportionate to offenders’ crimes. Beyond Weems, however, the Court has not offered much of a definition of what constitutes cruel and unusual punishment.

A more recent usage of the Eighth Amendment includes cases in which over- crowding at prisons is an issue. In essence, some appellate and supreme courts have ruled that double- and triple-celling of inmates is a cruel punishment. Judges know they cannot sentence offenders to prisons that are under a decree to reduce their populations unless other offenders are released to make room for the new arrivals (e.g., Meyer and Jesilow, 1993). This may mean that offenders who judges feel deserve jail are sentenced with other options.

A second factor that limits sentencing agents is criminal statutes. All criminal statutes list the potential penalties for engaging in the proscribed activity. Those who burglarize homes in California, for example, face a sentence of two to six years in prison. New Jersey burglars can expect a sentence of three to five years in prison. Burglars in other states face penalties set by their state’s legislature. Judges cannot sentence burglars to the death penalty because penal codes do not allow this sentence for burglars.

The third factor is related to the second, and is the role played by compulsory sentencing laws. Although they will be discussed more in the next chapter, it is important to mention that sentencing agents must, in theory, heed whatever com- pulsory sentencing laws have been put in place by their legislative bodies. The most common compulsory sentencing schemes are mandatory sentencing laws, which require judges to impose mandatory minimum sentences. Compulsory schemes also include sentencing guidelines designed to narrow judges’ discretion and sentence enhancements, which mandate additional penalties for certain offend- ers (e.g., the use of a gun or specific type of weapon while committing another crime may result in the imposition of additional time in prison).

The fourth factor in discretion is society’s role. Before imposing sentences, judges need to consider what the public wants for particular offenders or types of offenders. Elected judges need to remain responsive to their constituents’ needs in order to get re-elected. Even if they are appointed, judges must consider the politi- cal ramifications of imposing sentences that are not consistent with the public’s wishes. Some scholars argue that judges in small communities are most affected by these constraints because each judge “knows the content of his sentencing remarks will be on page one of the local paper” (Kunkle, 1989, p. 75).

The final factor limiting discretion is the sentencing philosophy to which the court or state legislature ascribes. Sentencing philosophies embody the purposes we have for punishing criminals and are very important, as they sometimes dictate which punishments are appropriate.

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PUNISHMENT PHILOSOPHIES

There are four generally recognized punishment philosophies: deterrence, incapac- itation, rehabilitation, and retribution. Some scholars argue that there is a fifth pun- ishment philosophy, restoration (e.g., Branham and Krantz, 1994, p. 6). Although the goal of each philosophy: is to prevent crime, they differ dramatically in their approaches. We will discuss each of the five in turn. Boxes 13.1 through 13.5 will present a number of interview segments with judges to illustrate the sentencing philosophies.

Deterrence

According to the principle of deterrence, the purpose of punishment is to prevent crime by convincing or scaring individuals not to commit crimes because they or others have been punished for violating a law. When people decide not to park in a handicapped space because they have been fined or do not want to be fined, they have been deterred from the illegal activity.

One early scholar who wrote about deterrence was Cesare Bonesana, March- ese de Beccaria (1738–1794). Beccaria was a classical theorist who argued that criminals are rational human beings who make choices based on free will. He said criminals choose to commit crimes because the benefits outweigh the costs. The way to prevent crime, then, is to raise the “costs” of crime. Among other things, he recommended that certainty, celerity (speed), and severity be considered when designing an effective system of punishment (Beccaria, 1775/1983).

Certainty means the assurance with which one can expect to be punished fol- lowing a crime. Beccaria argued that criminals could not be deterred from crimes unless they felt certain they would be punished. If only a small percentage of crim- inals are punished for violating a particular law, others may be likely to break the same law with the assumption that they will not be caught. This is one reason why motorists are more likely to speed when they do not see police officers. Similarly, I have had students tell me they are less likely to cheat when their professor brings in extra proctors to help keep an eye on things; they feel the chances of getting caught and punished are higher when the proctors are present. In a nutshell, these students are talking about certainty.

But, many factors contribute to the fact that the certainty of punishment for any given crime is not at optimally high levels. First, fewer than half of crimes are reported by victims (Harlow, 1985; Bureau of Justice Statistics, 2000, p. 94), so the perpetrators of the unreported crimes never face the specter of arrest or punish- ment. Certain crimes, especially white-collar offenses, might go undetected by the victims so they are not even reported, much less prosecuted. Cases are eliminated at various stages in the justice system by officials exercising their discretion (e.g., police officers may sometimes issue warnings rather than taking more formal

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actions, or prosecutors may decline to prosecute in some cases because of eviden- tiary or other concerns). Given these realities, certainty of punishment does not exist for all crimes.

Celerity is the swiftness with which criminals are punished. Beccaria argued that people are less able to attach meaning to punishments that are long overdue. For example, children who are told to “Wait till your father gets home” may forget why they are being punished once daddy finally gets home. Further, some crimi- nals may break laws because they know they will not be punished for months, sometimes years, after their crimes.

Severity refers to the harshness of the penalties imposed on offenders. Becca- ria felt that penalties should be severe enough to deter people from crimes, but rea- sonable enough that all guilty parties will be reported and punished; that is, sentences must not be too lenient nor too strict. To illustrate, consider the penalty for cheating on papers. If the penalty was to rewrite the paper, some people would be willing to turn in their classmates, and professors would agree to penalize the cheaters. On the other hand, if the penalty was expulsion from the school, even on a first offense, very few students would be turned in and punished because many people would consider that penalty to be unreasonable. Only cheaters who were already outcasts would be subjected to such a system of justice, leading to dispari- ties in sentences. Another example of this is the reluctance of some juries to con- vict defendants accused of nonviolent crimes if the jurors suspect the case is a

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386 The Punishment Dilemma

Cesare Beccaria (1738–1794) is considered the father of classical theory. Beccaria and his followers argued that criminals are rational human beings who make choices based on free will. To prevent crime, Beccaria felt punishments must be swift and certain, and sufficiently severe to deter would-be offenders. SOURCE: Illustration courtesy of the Granger Collection.

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“three strikes” case that will result in a very long sentence for the defendant. Bec- caria argued that certainty and celerity were far more important than severity. Even if the penalties were mild, knowing that all offenders would be detected and pun- ished would still deter people from crime.

There are two types of deterrence: general and specific. Specific deterrence (also known as individual deterrence) occurs when criminals are deterred from future crimes because they themselves have been punished. My friend Elena does not jaywalk because she once received a ticket for doing so. Whenever she starts to jaywalk, she hears money trickling from her bank account to pay the fine. Another of my students told me he will never park in a handicapped space because he was given 100 hours of community service for a past infraction. Both of these individu- als had been affected by specific deterrence. Whenever convicted criminals say they wish to avoid going back to jail, specific deterrence is operating.

General deterrence, on the other hand, takes place when others (the com- munity in general) are deterred because they know criminals are punished. Although I have never been ticketed, I do not jaywalk because my friend Elena received an expensive ticket for jaywalking. In fact, none of her friends jaywalk because we do not want to get tickets. Whenever would-be offenders decide they do not want to be punished because they have seen others receive distasteful penal- ties, general deterrence is at work. Sometimes, judges will acknowledge the value of general deterrence during sentencing. For example, one low-level money laun- derer was told by a federal judge that she was sentenced to two weeks incarcera- tion, even though the prosecutor had not called for any incarceration, because he wanted to “send a message that if you commit a crime of this sort, you will go to jail” (Neumeister, 2000). The judge felt she did not deserve a longer sentence because the role she played was minimal, but wanted to emphasize deterrence in the minds of other would-be criminals.

In summary, under deterrence, criminals are hypothesized to be rational indi- viduals who weigh the costs and benefits of illegal acts and decide that the benefits of crime outweigh the costs (Blumstein, Cohen, and Nagin, 1978, p. 19). Offenders are punished, then, to maintain the perception that crime has high costs, thus thwarting the commission of illegal acts.

Critics of deterrence point to its seeming inconsistencies with popular thought and the findings from research on the psychology of decision-making. Because the philosophy is rooted in the concept of the greatest good for the great- est number, certain offenders should go unpunished, according to deterrence theo- rists. Jeremy Bentham (1823, 1948, p. 177), for example, argued that crimes committed by offenders whose skills were needed by the rest of society (e.g., a community’s only doctor) should go unpunished. We see hints of this phenomenon today when doctors who work in low-income areas are not prosecuted or are not pun- ished for medical fraud because the system is not able to readily replace them (e.g., Jesilow, Pontell, and Geis, 1993). Bentham also held that punishments—executions

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or other penalties—that would anger the populace or other governments should not be carried out (e.g., the uproar by the United States to reduce Michael Faye’s pun- ishment after he was sentenced to be caned in Singapore). These ideas are repug- nant to those who argue that criminals should not escape punishment solely because of their status in society.

Other critics argue that it is impossible to know whether the impact of punish- ment (the costs of crime) deters potential offenders because we cannot accurately determine how much benefit a certain crime represents to an offender or how much cost a given punishment delivers. This is due to the fact that according to deter- rence theory, each offender theoretically weighs the costs and benefits of commit- ting a crime according to his or her own subjective perception. Thus, there will be individual differences between potential offenders in how they perceive the risks and rewards of crime. For example, which is considered worse by offenders, a year of intensive supervision probation or a year in prison? Several research teams have found that offenders (especially recidivists and single men) report that they would prefer prison due to their belief that probation is stricter or more difficult to com- plete (Crouch, 1993; McClelland and Alpert, 1985; Petersilia and Piper Des- chenes, 1994). Their preference for jail cannot be blamed merely on difficulties in making such decisions without facing them; Petersilia and Turner (1990) found

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388 The Punishment Dilemma

A tangible example of deterrence in Dorset, England. This sign from the early 1700s illustrates two important concepts in punishment. First, the sign represents a clear attempt to deter would-be offend- ers from damaging the bridge through the threat of severe punishment. Second, the sign mentions the penalty of transportation for life for those who damage the bridge. Between 1718 and 1776, some thirty to forty thousand offenders were sentenced to transportation from England to America. Between 1787 and 1869, approximately 162,000 criminals were transported from England to Aus- tralia (Newbold, 1999). SOURCE: Courtesy of Jon’a Meyer.

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that nearly one fourth of a sample of offenders who were offered the opportunity to participate in an intensive probation program preferred instead to go to prison!

Another difficulty in assessing deterrent value of punishments is that punish- ments affect different people in dissimilar ways. A fine, for example, may be of little consequence to a wealthy business owner but may be overwhelming to an unem- ployed person. Other penalties also affect people differently. Some individuals are traumatized by even short jail terms, whereas others seem able to tolerate prison terms of several years. To some, community service is a way to serve their commu- nities; others view it as a shameful, stigmatizing punishment. Some scholars believe that although deterrence (especially general deterrence) has not worked well for reducing street crimes, it may be more effective when applied to white- collar criminals, who are arguably more likely to consciously contemplate the conse- quences of their crimes (e.g., Braithwaite and Geis, 1982). The list of comparisons could go on if we had unlimited space to consider them here.

Others argue that not all people act of their own free will. The mentally ill, for example, may commit crimes due to reasons other than their exercise of clear thought; that is, they may commit crimes that reflect the influence of their illness on their thinking processes. It may also be difficult to deter crimes of passion, in which offenders are so incensed that they are temporarily unable to act in a rational manner. Individuals who catch their spouses in bed with other lovers, for example, are unlikely to weigh the costs and benefits of a criminal act before taking some- times lethal actions. Consider the last time you wanted to punch someone. Chances are you were furious and were not in the mood to consider the pros and cons of crime. Modern laws take this lack of free will into account by allowing complete or partial defenses for the mentally ill and for crimes committed in the heat of pas- sion. If a reasonable person would be incensed by the situation faced by the defen- dant, then the defendant might qualify for a lesser charge or lower degree of the crime (e.g., second-degree rather than first-degree assault).

Other critics argue that this utilitarian philosophy allows for the sanctioning of innocent people (e.g., Rawls, 1955). Because deterrence relies on making exam- ples of others, it would not be evil to punish an occasional innocent to deter others if the sanctioning meant the greatest good for the greatest number. Bentham (1823/ 1948, p. 183), for example, advocated punishing offenders for crimes that had not yet been detected because it was often difficult to uncover all crimes committed by offenders. This criterion is less likely to be cited as good policy today, but there are some offenders who were “made an example of,” even if their actions were not necessarily the most egregious, in order to keep the perceived costs of punishment high. For example, after a man who falsely claimed he had provided Columbine shooters Eric Harris and Dylan Klebold with bomb-making materials was arrested and booked into jail for making a false report, the local sheriff commented, “Maybe this will slow down some of these crackpot calls that we’re getting” (Vogt, 1999). The sheriff’s comments show that the man was essentially being made an

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example of to prevent others from making such calls, especially as he was the only one (of presumably many offenders, given the sheriff’s comments) charged with such an offense. In fact, he could have received a harsher sentence than others who played a role in facilitating the offense. See Box 13.1 for three interview segments that illustrate deterrence as a sentencing philosophy.

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390 The Punishment Dilemma

BOX 13.1

Judges’ Comments on Deterrence

This and the following four boxes presents extracts from interviews with eleven judges to illus- trate each of the five sentencing philosophies. As you read the following interview segments, think about how they demonstrate deterrence.

General deterrence:

[Regarding driving-under-the-influence (DUI) cases]: You hear cases on both sides, does incarceration really help? Should we put these people in home confinement because the jails are so crowded? I feel really strongly that punishment is a deter- rent on DUI cases. I think that this is demonstrating that people are drinking less at noon, people are very aware of designated drivers. I think a lot of this has to do with fear of going to jail.

Specific deterrence:

[Regarding littering offenses]: A $271.00 fine and picking up trash for eight hours is heavy enough, don’t you think? The point of the law is deterrence, so a person will never, ever do it again. And I don’t think you have to fine somebody $500.00 to accomplish that purpose. If a $271.00 fine and picking up trash for eight hours doesn’t do it that guy or gal is crazy. I have not had a repeat littering offender; maybe if I did I would jack it up a little.

Both specific and general deterrence:

With respect to deterrence, I think we have to look at a couple of aspects of it. One, is this particular defendant going to be deterred from committing future similar crimes, or from committing future crimes at all? Is the punishment here strong enough to make the guy understand? . . . The next aspect of deterrence is whether or not other people in similar circumstances might be deterred from this type of crime because of the type of sentence this kind of defendant gets in this situation. So, deterrence is something that has to be considered when you’re indicating some- body’s punishment. The thing of sending a message out of this room is not just between me and the defendant. Society is all involved in this, so I have to justify society’s sense of fairness and I have to think of the deterrent value of the sentence.

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Rehabilitation

Rehabilitation is an effort to end criminal behavior by “curing” offenders of their criminality. According to this philosophy, punishment is a form of treatment administered to criminals (MacNamara, 1977).

Advocates of rehabilitation agree with Beccaria that humans act of their own free will, at least most of the time (Menninger, 1959). However, rehabilitation efforts often reflect a positivist approach to crime and punishment, that is, an approach that asserts that human behavior is at least partially determined or influ- enced by a variety of factors. Thus, crime cannot be deterred by the mere threat of punishment. Consider drug abuse and sales. Would any rational person use and sell drugs when the penalties are so harsh? What about murder? Only a “crazy” person would commit murder. This gets to the core of the rehabilitation model.

Crime occurs when “sick” people do illegal things. They may be suffering from physical illnesses (e.g., chemical imbalances), psychological disorders (e.g., compulsive obsessions), addictions (e.g., drugs or alcohol), or social disorders (e.g., inability to control their anger). Consider, for example, kleptomaniacs, whose shoplifting results from a psychological illness. Whatever the cause, reha- bilitation advocates argue that society owes it to itself and individual offenders to try to cure them before releasing them back into society. The treatment sometimes consists of administration of drugs, psychotherapy, or retraining and education programs.

Of course, rehabilitation does not mean that we should try a few cures and then give up and release the offender. The model assumes that if we cannot cure a given offender, we need to “provide for his indefinitely continued confinement” to protect society (Menninger, 1959, p. 62). It is this belief that leads advocates of the rehabilitation model to support indeterminate sentences where offenders are paroled (i.e., released into the community under supervision after being incarcer- ated) after they can demonstrate that they have been cured. Karl Menninger (1959), an eloquent supporter of rehabilitation, once said:

With more use of the indeterminate sentence and the establishment of scientific diagnostic centers, we shall be in a position to make progress in the science of treating antisocial trends. Furthermore, we shall get away from the present legal smog that hangs over the prisons, which lets us detain with heartbreaking futility some prisoners fully rehabilitated while others, whom the prison officials know full well to be dangerous and unemployable, must be released, against our wishes, because a judge far away . . . said that five years was enough. (pp. 63–64)

This is where many criticisms of rehabilitation arise. First, how do we know when an offender has been cured? Many offenders who are paroled commit new crimes. At best, this shows how difficult it is to predict with any accuracy whether individ- uals will recidivate. Further, the rehabilitation model is based on the premise that

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we can cure offenders, and some doubt whether this assumption is accurate because of the difficulty in reliably predicting human behavior. Research evaluat- ing a variety of programs intended to rehabilitate has not given cause for optimism; however, the evidence does show that some rehabilitative efforts are quite effective for particular types of offenders (e.g., Walker, 2001).

Second, how is the nature of the treatments utilized? Some inmate writers, like Jack Abbott (1981), have written of the terrors of the medical model. Some offenders have been forced into painful medical procedures (e.g., lobotomies or drug treatments) that may not be successful or whose side effects are worse than the disease, all in the name of finding a cure for crime.

Third, some employees of the criminal justice system doubt that rehabilita- tion can be effective in reducing crime if participation in programs is voluntary (MacNamara, 1977), and argue that therapies undertaken involuntarily are less likely to be effective. Still others contend that we cannot force criminals to undergo therapies that might not work. This is complicated by the fact that a number of criminals do not want to be cured of what the rest of society determines to be crim- inal. To illustrate, consider my friend Sylvia, who showed me some blurry pictures she had taken. When I told her to stand farther from her subject when using her instamatic camera, she told me that she liked the pictures somewhat blurry because they looked more surreal. She considered the photos to be artistic and did not want the problem to be ended! Like Sylvia and her preference for out-of-focus photo- graphs, alcoholics and drug addicts often do not feel that their preference for sub- stance use needs to be cured. Some criminals, such as prostitutes and gamblers, may not even view their activities as criminal and resent efforts by those appointed by the justice system to prescribe suitable remedies.

Other people have taken issue with the idea of judges surrendering their sen- tencing power to psychologists and social workers. They feel that judges have been given the power to sentence and should fulfill that obligation. Criminals should not be given the opportunity to avoid culpability by turning to social workers who can absolve them of their responsibility by arguing that crime results from the actions of “sick” people who need to be healed, so criminals cannot be blamed for their actions (if criminals cannot be held responsible, then they certainly should not be penalized for their crimes).1 Some scholars argue that this medicalized view is untrue; not all criminals commit crimes attributable to one or more assorted mal- adies, and those who do break laws deserve to be punished for their transgressions (Dalrymple, 1992; Wasserstrom, 1980). See Box 13.2 for two interview segments that illustrate rehabilitation as a sentencing philosophy.

Incapacitation

Incapacitation involves attempts to physically restrain offenders from victimizing others. For the most part, incapacitation is the belief that we can prevent crimes by

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isolating offenders from the rest of society, thus preventing them from committing further crimes against the populace (Blumstein, Cohen, and Nagin, 1978, p. 64). When offenders are behind bars, they cannot victimize the rest of society. Prosecu- tors have long understood the importance of incarceration in their efforts to protect the public from offenders (Kunkle, 1989).

Adherents of incapacitation argue that the benefits of incarceration need not include deterrence or rehabilitation (Blumstein, Cohen, and Nagin, 1978, p. 64). The value of prison, in and of itself, is protection of the public. Under this philoso- phy, it is irrelevant whether prison-based treatment programs work or potential offenders are deterred by the prospects of going to prison. The value of incapacita- tion lies in its ability to restrain offenders who would otherwise victimize society.

In theory, incapacitation is not limited to prison or jail. House arrest and com- mitment to in-patient drug treatment programs, for example, keep offenders off the streets for the duration of their sentence. Nonincarcerative approaches may also

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BOX 13.2

Judges’ Comments on Rehabilitation

This is the second in a series of five boxes that present extracts from interviews with eleven judges to illustrate each of the five sentencing philosophies. As you read the following interview segments, think about how they demonstrate rehabilitation.

People to me that are into substance abuse are really abusing themselves. . . . When they have been arrested three or four times, it is a despairing thing because it’s hard to find help for them. If you can get those people in a day-to-day facility, you can change their outlook toward using these substances. I am concerned if we are really doing any good with putting people in jail for Health and Safety Code violations. Some of these sentences are a mandatory ninety days. These people go right out and do crimes again and if they are not getting some kind of help, I don’t know what good jail sentences do. I also realize that people who are abusing drugs are also stealing, etc. It is all compounded.

In the misdemeanor range, you’re concerned that “Hey, this person isn’t a bad per- son; they can be salvaged.”. . . You take a look at the individual defendant, whether he has a drug problem, an alcohol problem, or he has an unemployment problem or whatever’s causing him to do this. We have some programs, such as Domestic Vio- lence Diversion Program, which I believe is the most successful rehabilitation type program. Everyone that goes to this program comes back reporting how fantastic it is. . . . It feels good to see a husband and wife smiling again with their children, coming back with a progress report—they have it working again. Whatever the fac- tors were that were causing the problems, this program appears to help people face those factors and get rid of them and get on with their lives.

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serve the ideals of incapacitation. Newly developed Intensive Supervision Programs (ISPs) may so closely monitor offenders that it is difficult for them to continue com- mitting crimes. Innovative devices like breath-testers, which require convicted drunk drivers to “blow clean” before starting their cars, are based on incapacitation. Prescription drugs such as antabuse serve to prevent alcoholics from drinking because they are made ill if they do. Regardless of its effectiveness, castration is an incapacitation-based attempt to prevent sexual deviants from recidivating.2

Some followers of incapacitation believe that a majority of crimes are com- mitted by relatively few individuals, and argue that crime rates will go down if these few offenders are selectively incarcerated (e.g., Wilson, 1985). There is some truth to this argument. Wolfgang, Figlio, and Sellin (1972, p. 88) found that “chronic recidivists” (juveniles who had committed at least five earlier offenses) accounted for more than half of all new offenses in their Philadelphia sample. Sim- ilarly, Blumstein and Cohen (1987) found that one tenth of a sample of imprisoned robbers admitted to committing seventy or more robberies a year before being incarcerated. It appears, then, that some offenders commit crimes at a higher rate than others. It is this rationale that underlies many “three strikes and you’re out” policies; unfortunately, current prediction techniques are inadequate for the task of identifying these “career criminals.”

Critics of incapacitation argue that incarceration does not prevent crime; it merely relocates it to the inside of prisons. Many violent offenders continue to vic- timize others while in prison. And, once they are released, nothing stops them from resuming their criminal behavior. Further, inmates are introduced to new crimes, such as gang membership and smuggling ventures, that they may not have commit- ted while in the free world.

Other critics note offenders’ amazing abilities to circumvent incapacitative measures. Some offenders on house arrest find ways to leave their homes unde- tected. Forced prescriptions cannot work when offenders do not take them. Breath- testers installed in drunk drivers’ cars cannot determine who is “blowing clean” (the offender or a friend or family member recruited to blow into the device) before igniting the ignition. Even castration does not always work; Robert Martinson (1974, p. 36) once remarked, “Where there’s a will, apparently there’s a way” when discussing rapes committed by castrated men. In short, incapacitation cannot work if offenders bypass their sentences. Of course, as offenders find ways to out- wit their sentences, the criminal justice system is quick to refine the conditions or devices that were designed to incapacitate.

Another criticism of incapacitation is that policies such as preventive deten- tion, which were designed to incapacitate, raise grave due process questions. Crit- ics argue that because even the most sophisticated techniques currently available are not very accurate at predicting behavior, incapacitation policies result in the unnecessary confinement of many people who would not actually have committed a future crime. See Box 13.3 for two interview segments that illustrate incapacita- tion as a sentencing philosophy.

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Retribution

Retribution is one of the most misunderstood punishment theories. Some people mistakenly believe that retribution, also referred to as just deserts, justifies any penalty, no matter how harsh.

Retribution is based on the concept of lex talionis (“an eye for an eye”). Dur- ing the very earliest eras of justice, what we now call crimes were treated as private wrongs; victims or their families were allowed and expected to exact vengeance against the individuals who caused them harm (e.g., Schafer, 1977). This resulted in blood feuds, which impeded civilization’s progress, so the existing system of justice was transformed into one in which offenders were tried and punished by their communities, rather than relying on informal norms of justice that had resulted in blood feuds. In many respects, punishment of offenders by the govern- ment is society’s replacement of the right of the victim or the victims’ family to seek vengeance (except through civil suits).

Ancient law and justice codes reflect the initial stages of this transformation and clearly illustrate the idea of “an eye for an eye.” In ancient times, one who wronged someone else met with the same fate he had bestowed on his victim (e.g., knocking out the tooth of an equal meant that one’s own tooth would be knocked out). Other penalties were tied to the crime itself, such as barbers who had their hands amputated for destroying a slave’s markings. Lex talionis is best seen in the following excerpt from the Code of Hammurabi (circa 1700 B.C.):

• If a son strike his father, his hands shall be hewn off. • If a man put out the eye of another man, his eye shall be put out. • If he break another man’s bone, his bone shall be broken.

According to retributive theory, we punish offenders to take away any advantages they might have gained from their illegal acts. Under this way of thinking, criminals

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Punishment Philosophies 395

BOX 13.3

Judges’ Comments on Incapacitation

This is part of a series of five boxes that present extracts from interviews with eleven judges to illustrate each of the five sentencing philosophies. As you read the following interview seg- ments, think about how they demonstrate incapacitation.

Especially on . . . DUI cases, we are looking at protecting the public by suspending licenses. . . . If we have a very dangerous person, it is important that he is put some- where so the public will be safe.

In terms of sentences, violent crimes . . . generally warrant incarceration for protec- tion of the victims, and not only [the] victim of that crime, [but] potential victims who may testify.

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deserve to be punished for the wrongs they have committed (Hawkins, 1944; Kant, 1797/1995). In fact, this is the only acceptable justification for punishment, accord- ing to retribution theory. Offenders must be guilty of the crime for which they are to be punished and may only be given the amount of punishment that they deserve (Hawkins, 1944; von Hirsch, Wasik, and Greene, 1989). It would be unacceptable, for example, to harshly penalize parking violators simply because society wants to rid itself of this problem.

Supporters of retribution argue that it is morally wrong to allow a guilty party to escape punishment (Hawkins, 1944). Plato (circa 380 B.C./1953), in his dia- logue, Gorgias, argued that because punishment cleared the conscience that a criminal should “run to the judge, as he would to the physician, in order that the disease of injustice may not be rendered chronic” (p. 573). Punishment, then, is something to which mankind is entitled. To allow the guilty to avoid punishment is to deny them the dignity of choosing their actions, a dignity expressly reserved for man (Hawkins, 1944; Morris, 1968).

Retribution does not allow for the punishment of innocent parties or for the discipline of those who for some reason cannot be held responsible for their actions (Morris, 1968). The insane, for example, should not be punished for actions tied to their mental illness. Further, the crimes must result from voluntary actions (Berns, 1989). Even the ancient Code of Hammurabi recognized that some people would commit crimes for which they should not be punished (e.g., uninten- tional injuries caused during a quarrel were not punished if the offender paid the victim’s physician’s fees).

By punishing offenders, we restore the balance society seeks and satisfy soci- ety’s desire for revenge (Berns, 1989; Hawkins, 1944). Criminals have misappro- priated society’s benefits for themselves and have thus gained an “unfair advantage” over law-abiding citizens (Morris, 1968). Punishment based on retribu- tion removes that advantage and attempts to restore balance to society, while estab- lishing proper parameters of behavior (Grupp, 1971, pp. 5–6). Adherents of retribution theory assert that, in some respects, offenders punished under retribu- tion undergo a limited form of rehabilitation. Punishing “bad” people for miscon- duct places their activities outside the boundaries of what “good” people do. When offenders realize that they have done wrong and deserve their punishment, they “ought to amend [themselves] accordingly” (Hawkins, 1944, p. 206).

Critics of retribution argue that “just deserts” is outdated, that as a civilized society, we have moved beyond the need for simple vengeance. And, punishing some people simply because they have done wrong does not address the underly- ing problem. These critics argue that withholding necessary treatment from offend- ers is not the solution to crime.

Other critics argue that it is impossible to set up a satisfactory punishment scale. While it is easy to say that offenders should receive no more punishment than they deserve, how much do they deserve? Such scales, once created, cannot

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take into account offenders’ differing roles and motivations in offenses. In short, retribution-based policies do not recognize as different the actions of thieves who steal bread to feed their families and thieves who steal to feed their illicit drug habits. At the heart of retribution is a sense of deservedness that requires individu- alized sentencing that recognizes offenders’ differing culpabilities. See Box 13.4 for two interview segments that illustrate retribution as a sentencing philosophy.

Restoration

Restorative justice is by no means a new philosophy. In fact, it is “as old or older” than retribution. In ancient times, crimes were considered violations of other people. It was not until the twelfth century that offenses took on a new meaning, that of crimes against the king or government (Umbreit, 1994, p. 1). Before this time, pun- ishment served retributive and restorative functions.

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BOX 13.4

Judges’ Comments on Retribution

[Regarding factors used in sentencing]: Way down the line, but it’s there and hope- fully it doesn’t happen very often, is just vengeance. This asshole has beaten up on fifteen different girlfriends and you don’t want him to do it again, but you want to hurt him, too, because he’s an asshole. I’d say that’s true only where someone has inflicted physical pain on someone else. Then, you want that victim to know you couldn’t horsewhip the son-of-a-bitch, but you gave him a horsewhip sentence. . . . I don’t like people who hurt people who are physically less strong than they are. And hammering someone in that situation may be a deterrent, but probably not, but it feels good. You have to admit it; it just does. If you read about some outrageous behavior in some news article and something bad happens to the actor, it kind of makes you feel warm inside. Vengeance isn’t just the Lord’s. We all have it. Not a need for it necessarily, but we all like to feel that the rascal got what was coming to him. And, we all hope the price is painful enough that it might deter him, but whether it does or not, he got what was coming to him.

[Regarding sentencing philosophy]: Since it’s a misdemeanor, it’s not going to be in the paper, [so] no one is going to read about it and it’s not going to deter other peo- ple except [those] in the courtroom. . . . My primary concern is the person before me, that this person get punished appropriately for what they did, and their back- ground and the whole picture of this person.

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It was around 1116 that King Henry I redefined offenses as crimes against the king or government by declaring in his Leges Henrici that the crown should be com- pensated for crimes because offenders had breached “the king’s peace” (Stubbs, 1900, 1906). This important distinction meant that the king was entitled to the compensation that was once given to victims. To that existing system of restitution, King Henry I appended the notion of fines payable to the king as head of govern- ment; this supplementary sanction made offenders responsible for both restitution and fines. As time progressed, however, fines began to replace restitution in toto. Victims of crime were still entitled to sue for damages, but otherwise lost out on automatic restitution that was once standard. With King Henry I’s interventions (he also established a system of sheriffs and justices of the peace whose duties were to oversee the crown’s interest in criminal sanctions), the government began to have a vested interest in justice outcomes. As those interests became normal, restoration began to fade as the dominant justice policy.

Returning to the Code of Hammurabi (circa 1700 B.C.), we can see how some penalties were designed to try to make victims whole again through payments. If a building collapsed due to poor workmanship, the architect was expected to replace any slaves who were killed or any goods that were destroyed. Many harms were translated into specific monetary payments to be made to the victims, as in the pay- ment of ten shekels if a “freed man strike the body of another freed man.” Careless crop watering usually meant paying for any damages, as in the following passages:

• If any one open his ditches to water his crop, but is careless, and the water flood the field of his neighbor, then he shall pay his neighbor corn for his loss.

• If a man let in the water, and the water overflow the plantation of his neigh- bor, he shall pay ten gur of corn for every ten gan of land.

Under restorative justice, we return to the concept of crime as a violation of another person. The victim, then, becomes central to the sentencing process. Instead of punishing criminals, the intent of restorative justice is to “restore” vic- tims through restitution in the form of money or service. Sometimes, offenders are asked to “undo” their crimes, as in the case of juveniles ordered to remove graffiti. Other offenders are ordered to make symbolic restitution through community service.

Restoration also seeks to restore offenders. Through restoration of the victim, the offender “makes good” on his crime and restores himself to his pre-crime sta- tus. Sometimes, the two parties are brought together in victim–offender mediation sessions where together they design a restitution plan (Umbreit, 1994). It is during these sessions that victims can be returned to a sense of safety as the offender describes why a particular victim was targeted; generally, the selection of a victim involves a pragmatic choice by the offender (e.g., burglarizing the first house with-

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out cars in the driveway) versus a clear case of stalking or following as many vic- tims believe to be the case.

Perhaps an example will clarify how restoration occurs when offenders undo the specific harm they caused. Some years ago, a retired police officer caught a group of teens spray-painting one of the buildings on his property. He was more frustrated than furious when he caught them, because of the expense and time he would have to take to fix the damage, which was visible from the street. But instead of attacking the youths, he asked if they would be willing to paint over their graffiti with a mural of his choosing. Possibly skeptical at first, the kids still agreed to do so, and the mural was enjoyed by the retired officer and all who drove past until the paint was faded by the sun and elements. The victim in this case was happy with the outcome and his new mural, and the kids gained the satisfaction of knowing that they had “done good” for a local community member and learned that their artwork would be appreciated if it was limited to appropriate situations. Most importantly, however, under restorative justice, the victim was made whole again and the youths were able to undo their criminal acts and regain their status in the community as nondelinquents. In this case, of course, the harm was easily repaired, and some critics of restoration argue that “undoing” other offenses, espe- cially crimes of violence, is much harder to accomplish. To those critics, some restorative justice policymakers counter that the principles they advocate have been successfully implemented even in homicides.

Other critics of restoration complain that ordering offenders to pay their vic- tims does not make them whole. Instead, it teaches us that every crime has a dollar value, and that mere financial payments can restore victims. Victims of violent crimes often complain that restitution payments, usually paid at a rate of a few dol- lars a week, do not make up for their losses in dignity or feelings of safety. Some- times, victims protest that such schemas can readily return offenders to their pre-crime status, but cannot really make bona fide breakthroughs in restoring vic- tims to that same plateau.

Others complain that the program only works for a few offenders. That is, that some criminals will continue to victimize others unless there are penalties in addition to returning what they have taken or reimbursing individuals for their out- of-pocket expenses. These critics complain that restitution alone lets criminals off lightly, and may teach offenders that crime has little cost. See Box 13.5 for two interview segments that illustrate restoration as a sentencing philosophy.

AVAILABLE SANCTIONS

No matter what the sentencing agent’s preference or what the stated punishment philosophy is, the endorsed sanction must be available before it can be imposed on any offender. A judge, for example, may feel a certain offender requires intensive

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therapeutic intervention, but if there are no programs available or no funds to pay for such programs, the judge will have to choose another sentence.

Before the twentieth century, punishments were quite harsh, even for minor offenses. Penalties tended to be corporal (i.e., physical and applied to the body, such as whippings), and were sometimes gruesome by today’s standards of

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400 The Punishment Dilemma

BOX 13.5

Judges’ Comments on Restoration

This is the last of five boxes that present extracts from interviews with eleven judges to illustrate each of the five sentencing philosophies. As you read the following interview segments, think about how they demonstrate restoration.

I don’t think we do rehabilitation on a local level. . . . In the cases where I put them [offenders] on probation, then the purpose that I do have in mind is either to provide restitution for a victim who has been damaged or to force the defendant to be sub- ject to some stricter rules.

[The concept of] nalyeeh3 is not necessarily property or money; it’s what you can do to redeem yourself. [(Interviewer questions are in italics) So, “that which is nec- essary”?] If you say, “Okay, I will go to counseling and at the next squaw dance [i.e., traditional ceremonial gathering], I will make a public apology to you,” you know that is my way of redeeming myself. [Therefore, an agreement to go into counseling and the speech at the squaw dance could be nalyeeh?] Yes; then I say, “Okay, now I feel better now. You understand what you did and now I know what you are going to go for. We won’t expect this problem any more.” [What if I volun- teered to cut wood for an elder? Would that be nalyeeh, too?] Yes, it would be something you do for somebody to make them feel right or what they say [to] set things right. [So, if I hurt you, I could cut someone’s wood near (here)?] Yeah, or I might have you cut wood for all the squaw dances for the summer. [That’s a lot of woodcutting] . . . To a big degree, the size of the nalyeeh would be set to where a [victim] feels comfortable that it [i.e., the offending behavior] is not going to hap- pen again and they are [at] ease. I know that a lot of times, judges will say nalyeeh means money and I will say, “No, not from where I was raised. It was different things.”. . . The main idea was harmony, . . . to restore that feeling and also to restore the harmony of the family and of the community.

The first ten interviews (including all of those from the previous four boxes) were with municipal court judges in California. The final extract is from an interview with a criminal court judge of the Navajo Nation. A number of Native American tribes have returned to their restorative jus- tice roots. The Navajo Nation operates a Peacemaking Court that relies on the use of traditional justice methods to restore harmony to individuals, families, and communities. In peacemaking, victims and offenders meet with a mutually chosen peacemaker to discuss how to “undo” the harms suffered by victims and how to prevent future harms from occurring. The program is suc- cessful and enjoys a low recidivism rate. (Yazzie and Zion, 1996, pp. 170–172)

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decency. Prehistoric sanctions tended to rely on banishment or ritualistic execu- tions to placate any gods who would be angry about the broken norm. These penal- ties were designed to remove the offender from society so that the gods would not bring unfavorable conditions to the rest of the society due to harboring the norm- breaker.

Early European sanctions typically fell into one of four general classifica- tions: humiliatory, corporal, death, or exile. Humiliatory penalties were used for minor offenses and included the cucking stool (i.e., offenders were seated at their own front doors to expose them to ridicule); branks (which were odd contraptions that fit over one’s head, usually used for women who scolded their husbands or who spread rumors); stocks and pillories; the jougs (which were iron collars fas- tened around offenders’ necks to hold them on a platform); drunkards’ cloaks (bar- rels worn by habitual drunks); scarlet letters (e.g., those worn by adulterers such as Hester Prynne in Hawthorne’s The Scarlet Letter); riding the stang (a curious penalty often reserved for domestic abusers in which the offender was paraded through town seated on a donkey or other beast of burden while townspeople fol- lowed beating pots and pans and blowing horns and singing poems about the abuses the offender heaped on the victim); and other penalties designed to shame offenders into conforming with societal norms (Andrews, 1890/1991).

More serious crimes demanded harsher sentences. Corporal penalties were also common and included whipping, branding, boring of the offender’s tongue, cutting off an offender’s ears, and other bodily penalties. Legal decision-makers in early Europe were also quite fond of slow, painful executions of a variety of styles, sometimes preceded by torture. One reason penalties were so harsh was the belief that crime and disorder stemmed from the devil’s influence, and must be punished harshly (see Box 13.6 for an illustration from 1616 that shows the presumed influ- ence of the devil on a woman who killed her two children, aged two and five). And, for those who were adjudged incorrigible, what better penalty than to exile them to the New World or other colonies that needed citizens?

Fortunately far from our historical roots, today’s judges tend to impose finan- cial and supervision-oriented sanctions. Discussed below are several sanctions, including noncustodial, custodial, and other punishments.

Financial Penalties: Fines and Restitution

Fines involve paying a sum of money to the government after breaking a law. Fines have been used for a long time and were originally a way to raise money for the British Crown. Now, a certain portion of fines is sometimes earmarked for special accounts, such as victims’ compensation funds, in addition to supplementing road construction accounts, general welfare monies, and similar government resources. Most individuals have paid fines for parking tickets and other minor offenses. In the lower courts, fines are the most frequently applied sanction (Lindquist, 1988, p. 26; Mileski, 1971, p. 501, President’s Commission Task Force Report on the Courts,

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1967, p. 18). Felony courts also impose fines, although far less often (Eisenstein and Jacob, 1977, p. 274). Federal courts nearly always impose some form of fine.

Borrowing an idea from Europe, a few American jurisdictions have begun to experiment with day fines. This special type of fine is adjusted to the offender’s ability to pay (Winterfield and Hillsman, 1993). The way they work is simple in theory, but hard to put into practice. Each criminal violation is assigned a value in day-fine units. Let us assume for the purposes of illustration that shoplifting is

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402 The Punishment Dilemma

BOX 13.6

The Devil and Margret Vincent

This 1616 illustration, taken from the cover of a leaflet that discussed the infanticides commit- ted by Margret Vincent, demonstrates clearly the belief held by individuals of that time that Satan influenced those who were not strong in their Christian faith to commit crimes. The pub- lication mentions that she was “assisted by the Devill” and that she was “more cruell than the Viper, the invenomd Serpent, the Snake, or any Beast whatsoever” (Anonymous, 1616, p. 4).

Transport yourself back in time to the early 1600s. How should we sentence someone who acts at the behest of the devil and does his “evil” bidding by strangling her own children with cordage provided by Satan himself? Only the harshest sentences were considered accept- able in order to deal with this omnipresent and diabolic force.

FIGURE 13.3 Source: Anonymous, 1616 (cover).

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assigned a day-fine unit value of three days, and that Joe and Joanne each shoplift a CD from a music store and are fined three day-fine units. Joe makes $30 a day at his job, so his fine would be $90. Joanne makes $50 a day at her job, so her fine would be $150.4 The reasoning behind fining the different offenders different amounts is that Joe and Joanne should feel the same effects on their pocketbooks. Just because Joanne has a higher paying job should not mean that she has to work fewer days to make the money to pay her fine.

Of course, this can mean extremely high fines for minor offenses when laws are violated by very wealthy individuals. When Nokia executive vice president Anssa Vanjoki was caught going 15 miles above the speed limit in Helsinki, Fin- land, he was assessed a $103,000 fine, and Internet entrepreneur Jaakko Rytsola was ordered to pay a $74,600 traffic fine (Turula, 2002). The reason the fines were so high is that the jurisdiction relies on day fines and the two mens’ incomes topped several million dollars a year.5

Sometimes confused with fines is restitution, because both result in offend- ers paying money out of their pockets. Restitution differs from fines, however, in that it is paid to the victim, typically as part of an attempt to achieve restorative jus- tice. Because the payments are often made through the court or probation office, offenders may feel they are simply paying a higher fine. Restitution is supposed to reimburse victims for damages or for medical and counseling expenses they incur due to the offenses, or for other costs associated with being victimized. Some vic- tims are reimbursed for the time they had to take off work and for daycare costs for their children while they attended hearings. Some offenders, especially juveniles, are assigned to work for the person or business they victimized. One young man, for example, found himself cleaning a bookstore’s bathrooms every weekend for a year when he was caught shoplifting valuable comic books.

Community Service

Prior to 1971, indigent offenders who had been ordered to pay fines were jailed, hence the old adage “thirty dollars or thirty days.” The U.S. Supreme Court ruling Tate v. Short (1971), however, outlawed that practice so that only offenders who could afford fines but refused to pay them could be sent to jail for nonpayment. Tate v. Short meant that an alternative sanction had to be utilized for indigent offenders and community service filled that need. Those sentenced to community service are assigned to work without compensation for various nonprofit or gov- ernmental agencies. Typical community service placement sites include charities, schools, parks, and programs that service youths or elders (Meeker, Jesilow, and Aranda, 1992, p. 200). Through the work they provide, offenders make symbolic restitution to the community they harmed by their criminal actions. Community service had been used on a fairly consistent basis since the 1960s but increased in popularity after Tate v. Short. This type of sentence has been called a panacea by

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some because there are many benefits associated with community service: jail overcrowding is minimized, the offender may learn basic work skills or discipline, and the community benefits from the labor of the offender (Klein, 1988, pp. 173–78). The work completed by these offenders is useful to the placement agen- cies; for example, estimates of the value of the work provided by community ser- vice workers assigned to work for the California Transit Authority in just two counties in California (Los Angeles and Ventura) indicate that they provide free labor worth more than $30 million a year (Webber and Nikos, 1992).

Probation

Probation is another common sanction used for both misdemeanors and felonies. Probation owes its development to retired Boston shoemaker John Augustus, who in 1841 asked a local judge to assign a drunk to him for supervision and education in the trade of making shoes. Instead of jailing the drunk, the judge agreed to let Augustus try his hand at reformation. Augustus’ intervention was successful so the court assigned him to work with more drunks. Those humble beginnings set the stage for the popularity of probation—a sanction that now applies to more than three million offenders (Bonczar and Glaze, 1999).

Unlike other sanctions, probation is “not designed to provide punishment” (McDonald, 1992, p. 189). Instead, its goal is rehabilitation of offenders through a combination of supervision and assistance through social programs. As evidence of the push for programming, 41 percent of all probationers in 1996 were ordered into drug or alcohol treatment as a condition of their receiving probation (Bonczar, 1997). Offenders of all types receive probation terms, even violent offenders. In fact, more than half (57 percent) of those who are put on probation were convicted of a felony (Bonczar and Glaze, 1999), and one in 100 homicide offenders receives probation (Bonczar, 1997). The major dilemma faced by probation departments across the nation is staff shortages, which affect their ability to supervise and reha- bilitate offenders (Wice, 1985, p. 22). See Figure 13.1 for a graph showing trends in the use of probation, parole, and incarceration.

There are several forms of probation. The first, informal probation, can be just that—very informal. Sometimes, offenders are only told to avoid future involvement in crime and are required to mail in monthly postcards so their proba- tion officers can keep track of them. Individuals on informal probation may only encounter problems if they end up back in court, at which time they may face addi- tional penalties. The second form, regular probation, involves more supervision, usually regular in-person visits and telephone contacts in addition to periodic unannounced visits to the offender’s home or workplace. Regular probation often involves mandated programming that is tailored to the offender’s specific needs (e.g., completion of substance abuse programs or personal counseling). As case- loads have increased, however, probation officers have found themselves with less

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and less time to devote to supervision, meaning that many probationers get little individualized attention.

In response to the criticisms that probation is a “slap on the wrist” that does not work because large caseloads prevent probation officers from supervising their clients, a number of jurisdictions have developed intensive supervision programs (ISPs). In addition to increased contact with probation officers, these programs typ- ically include rigorous conditions (e.g., routine and/or random drug testing). Some- times, ISP is combined with day reporting services to ensure that high-risk offenders receive programming they need coupled with the supervision the commu- nity deserves. True to its being designed primarily as a rehabilitation program, stakeholders in one survey reported that the most important purpose of day report- ing services was to provide offenders with access to the treatment services they need to prevent their return to crime (Latessa et al., 1998, pp. 12–13).6 Evaluations of the effectiveness of ISPs are inconclusive, however; when compared to traditional pro- bation, some ISP programs appear to reduce recidivism while others may actually increase it (Gowdy, 1993, p. 5). The increased recidivism for ISP participants, how- ever, may be strongly related to the increased attention and supervision such offend- ers are given; the more regular contact and more consistent drug tests certainly net some crimes that could easily escape detection in an informal or regular probation setting. ISP is often augmented with electronic monitoring, as discussed below.

Custodial Sentences (Incarceration and Home Confinement)

There are also custodial sentences, including prison and jail. Prisons are state operated (or federally operated for federal offenses) and only those convicted of

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3,500,000

3,000,000

2,500,000

2,000,000

1,500,000

1,000,000

500,000

0 1985 1987 1989 1991 1993 1995 1997

Probation

Prison Parole

Jail

Number of adults

FIGURE 13.1 Trends in the use of probation, parole, jail, and prison Source: Bureau of Justice Statistics, 1997, p. iii.

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felonies may be sent to prison. The history of prison is interesting. In early Rome (A.D. 533), it was illegal to imprison offenders after conviction—only those await- ing trial could be held in detention facilities. England’s use of prisons was mainly limited to debtor’s prisons where those who owed debts were held until the arrears were satisfied (a strong incentive for one’s family to meet the financial obliga- tion!). Prison as a sentence for crimes (rather than a holding place for those await- ing trial or execution) was strongly advocated by the famous Quaker reformer, William Penn, in 1682. It is important to recognize that until the seventeenth cen- tury, penalties were very harsh and many offenses resulted in execution. Penn felt that imprisoning offenders was more humane than executing them; he argued instead that they could be housed in facilities where they could read the Bible and reform themselves. After Penn died in 1718, there was regression back to corporal sanctions and executions, but the Quakers lobbied the legislature and a law was passed in 1776 allowing imprisonment for all crimes except murder, rape, treason, and arson.

The first prison in America, the Walnut Street Jail, was established in 1790 in Philadelphia and emphasized penitence and solitary confinement. This approach (i.e., stimulus deprivation, or the privations of solitary confinement twenty-four hours a day) drove several inmates insane, so the practices were abandoned in favor of those that allowed silent interaction with other inmates in common work areas. Now, there more than two million prisoners in the United States alone, lead- ing some to comment on the “prisonization of America.” Overcrowding is a major factor that limits use of prison as a sanction. See Figure 13.1 for a graph showing trends in the use of probation, parole, and incarceration.

Instead of prison, those who are convicted of misdemeanors may be sent to jail. Jails are locally operated by counties, and are usually for sentences of less than one year.7 Because they operate within the counties they serve, jails are more flexible than prisons so that offenders may receive weekend sentences (i.e., where offenders serve their time on the weekends but are released during the week), or work release or study release sentences (i.e., where offenders are incarcerated at night but may work or go to school during the day). Jails are also overcrowded, limiting their use as a sentence. See Figure 13.2 in Box 13.7 for a graph showing a ten-year breakdown of jail and prison sentences.

A special form of custodial sentence is home detention, a sanction that, as of the mid-1980s, is increasingly coupled with electronic monitoring (Renzema and Skelton, 1990). In fact, Gowdy (1993, p. 5) argues that home confinement may be enjoying a new popularity because the availability of electronic monitoring is believed to make the sanction “practical and affordable.” Electronic monitoring, rumored to have been invented by Stan Lee for use in a Spiderman comic,8

involves offenders wearing electronic anklets or wristlets that alert supervisory authorities if they leave their homes. Although not everyone feels electronic moni- toring is a panacea, they still see it as appropriate for certain offenders, such as

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406 The Punishment Dilemma

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Available Sanctions 407

2,000,000

1,600,000

1,200,000

800,000

400,000

0 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 June

30, 2000

Federal prisons

State prisons

Jails

131,496 inmates in federal prisons

1,179,214 inmates in state prisons

621,149 inmates in local jails

Number in custody

From year-end 1990 to midyear 2000, the nation’s prisons and jails grew by 783,157 inmates, an annual increase of 5.6 percent.

FIGURE 13.2

From year-end 1990 to midyear 2000: • The rate of incarceration in prison and jail increased from 1 in every 218 U.S. residents to 1 in

every 142.

• State, federal, and local governments had to accommodate an additional 82,438 inmates per year (or the equivalent of 1,585 new inmates per week).

In the year ending June 30, 2000: • The number of inmates held in jail rose by 15,206, in state prison by 27,953, and in federal

prison by 13,501. In the three largest state prison systems, the number dropped in California (down 33 inmates) and New York (down 2,269 inmates), while it rose in Texas (up 890 inmates).

On June 30, 2000: • Privately operated prison facilities held 76,010 inmates (up 9.1 percent since year-end 1999).

• Local jails were operating 8 percent below their rated capacity. In contrast, at year-end 1999 state prisons were between 1 percent and 17 percent above capacity, and federal prisons were 32 percent above their rated capacity.

• An estimated 12 percent of black males, 4 percent of Hispanic males, and 1.7 percent of white males in their twenties and early thirties were in prison or jail.

• There were 110 female inmates per 100,000 women in the United States, compared to 1,297 male inmates per 100,000 men.

Source: Beck and Karberg, 2001, p. 1.

BOX 13.7

Graph Showing a Ten-Year Breakdown of Jail and Prison Sentences

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those who are severely ill, disabled, or whose presence in their home is essential to others. Said one lower court judge about the sanction:

You gonna ask me about my favorite topic, which is electronic confinement? . . . You know what I call it? Commit-a-crime-go-to-your-room. No, I don’t like it. No, I don’t do it. I have used it quite frequently with people who are extremely ill; I’ve used it with a lot of AIDS patients.

Creative Sanctions

In addition to the customary penalties, there are a number of creative sanctions employed by judges who are frustrated with the inability to fashion appropriate responses from available sentencing options. Creative sentences involve such sanc- tions as ordering doctors to perform medical services at a free clinic, having busi- ness owners give lectures or mentor minority businesses to help their companies survive, directing offenders to establish organizations or funds, ordering drunk drivers to install breathalyzers in their cars to prevent them from driving drunk, and requiring offenders to write letters of apology or essays. There was even a judge who sentenced a man who starved his dog to death to live on bread and water alone for a weekend.

A number of innovative penalties focus on embarrassment or shame, such as requiring drunk drivers to display bumper stickers on their cars identifying them as such, or ordering people to make public apologies for the harm they have caused. Some judges now hope to “remind” offenders of the harm they have perpetrated by ordering them to carry pictures of those they have killed in drunk-driving accidents or to pay $1.00 a month to the victim.

Creative penalties tend to be imposed either in special cases or by judges who make a hobby of innovative sanctioning. One famous judge who designs and imposes creative sanctions is Judge Ted Poe, who has served as a criminal court judge in Houston, Texas, since 1981. His sentences have included public apologies delivered from the city hall steps, offenders carrying signs to apologize to busi- nesses they have victimized, mandated signs posted on child molesters’ lawns explaining that no children are allowed on their property, and a hairdresser who was ordered to give free haircuts at centers that serve the disabled (Connelly, 1999). See Box 13.8 for some other creative sanctions.

The Death Penalty

The most severe penalty that can be applied by any court is the death penalty. Although it is allowed in thirty-eight states, it is relatively uncommon. Despite this rarity, however, the death penalty has strong symbolic value and affects plea bar- gains and defendants’ decisions to seek trial by jury.

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408 The Punishment Dilemma

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At present, there are five methods of executing those convicted of capital offenses. The most common method, by far, is lethal injection. The remaining methods are electrocution, lethal gas, hanging, and firing squad. See Table 13.1 for a breakdown of execution methods. In the vast majority of states, defendants must be charged with murder to even face the death penalty, but a few states allow capi- tal punishment for other offenses. See Table 13.2 for a list of offenses that qualify for the death penalty.

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Available Sanctions 409

BOX 13.8

A Few Creative Sanctions Imposed During February, 1998

As you read about these three sentences, all imposed during February of 1998, think of the sen- tencing philosophies each could address. Some of the sentences illustrate more than one sen- tencing philosophy.

Man must carry photo of victim (2/11/98, Associated Press) A twenty-one-year-old Oklahoma man who killed a young woman when his vehicle crashed into another automobile was sentenced to carry the victim’s photo with him for a year in addi- tion to serving 20 days in jail. He was not under the influence of drugs or alcohol at the time of the accident, but had run a stop sign, so he pled guilty to negligent homicide. The victim’s mother had requested that he be ordered to carry her photograph.

Man ordered to post DUI sticker (2/21/98, Associated Press) After serving a five day jail sentence and losing his driver’s license for drunk driving, a 36-year- old Kansas man with multiple priors for drunk driving requested that a judge reinstate his license. The judge agreed and told him he could get his driver’s license back in a few months if he complied with an interesting condition: he had to put a “bright” red-and-orange sticker on the rear window of his car that said “Convicted DUI.” The judge told him that he faced a year in jail if he removed the sticker.

Thief ordered to send birthday card (2/22/98, Associated Press) When a twenty-year-old Pennsylvania man stole a stereo system out of a car he had broken into, he was arrested for that crime and several others. After he had pled guilty to theft, receiving stolen property, and conspiracy to commit theft, the judge noticed that the automobile break-in occurred on her birthday. So he would not quickly forget the crime, she ordered him to send her a birthday card for two years in addition to paying restitution to his victims and completing twenty-three months of probation.

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TABLE 13.1 Method of Execution, by State, 1999

Firing Lethal injection Electrocution Lethal gas Hanging squad

Arizonaa,b New Hampshirea Alabama Arizonaa,b Delawarea,c Idahoa

Arkansasa,d New Jersey Arkansasa,d Californiaa New Hampshirea,e Oklahomaf

Californiaa New Mexico Florida Missouria Washingtona Utaha

Colorado New York Georgia Wyominga,g

Connecticut North Carolina Kentuckya,h

Delawarea,c Ohioa Nebraska Idahoa Oklahomaa Ohioa

Illinois Oregon Oklahomaf

Indiana Pennsylvania South Carolinaa

Kansas South Carolinaa Tennesseea,i

Kentuckya,g South Dakota Virginiaa

Louisiana Tennesseea,i

Maryland Texas Mississippi Utaha

Missouria Virginiaa

Montana Washingtona

Nevada Wyominga

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

410 The Punishment Dilemma

Note: The method of execution of Federal prisoners is lethal injection, pursuant to 28 CFR, Part 26. For offenses under the Violent Crime Control and Law Enforcement Act of 1994, the method is that of the state in which the conviction took place, pursuant to 18 U.S.C. 3596. a Authorizes 2 methods of execution. b Arizona authorizes lethal injection for persons whose capital sentence was received after 11/15/92; for those sentences before that date, the condemned may select lethal injection or lethal gas. c Delaware authorizes lethal injection for those whose capital offense occurred after 6/13/86; for those whose offense occurred before that date, the condemned may select lethal injection or hanging. d Arkansas authorizes lethal injection for those whose capital offense occurred on or after 7/4/83; for those whose offense occurred before that date,

the condemned may select lethal injection or electrocution. e New Hampshire authorizes hanging only if lethal injection cannot be given. f Oklahoma authorizes electrocution if lethal injection is ever held to be unconstitutional, and firing squad if both lethal injection and electrocution are held unconstitutional. g Wyoming authorizes lethal gas if lethal injection is ever held to be unconstitutional. h Kentucky authorizes lethal injection for persons whose capital sentence was received on or after 3/31/98; for those sentenced before that date, the condemned may select lethal injection or electrocution. i Tennessee authorizes lethal injection for those whose capital offense occurred after 12/31/98; those whose offense occurred before that date may select lethal injection or electrocution.

Source: Snell, 2000, p. 5.

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TABLE 13.2 Capital Offenses, by State, 1999 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41

N 42 L 43

Available Sanctions 411

Alabama. Capital murder with a finding of at least 1 of 10 aggravating circumstances (Ala. Code § 13A-5-40 and § 13A-5-49).

Arizona. First-degree murder accompanied by at least 1 of 10 aggravating factors.

Arkansas. Capital murder (Ark. Code Ann. 5-10- 101) with a finding of at least 1 of 10 aggravating circumstances; treason.

California. First-degree murder with special circumstances; train wrecking; treason; perjury causing execution.

Colorado. First-degree murder with at least 1 of 14 aggravating factors; treason. Capital sentencing excludes persons determined to be mentally retarded.

Connecticut. Capital felony with 9 categories of aggravated homicide (C.G.S. 53a-54b).

Delaware. First-degree murder with aggravating circumstances.

Florida. First-degree murder; felony murder; capital drug trafficking.

Georgia. Murder; kidnaping with bodily injury or ransom where the victim dies; aircraft hijacking; treason.

Idaho. First-degree murder; aggravated kidnaping.

Illinois. First-degree murder with 1 of 15 aggravating circumstances.

Indiana. Murder with 16 aggravating circum- stances (IC 35-50-2-9). Capital sentencing excludes persons determined to be mentally retarded.

Kansas. Capital murder with 7 aggravating circumstances (KSA 21-3439). Capital sentencing excludes persons determined to be mentally retarded.

Kentucky. Murder with aggravating factors; kidnaping with aggravating factors.

Louisiana. First-degree murder; aggravated rape of victim under age 12; treason (La. R.S. 14:30, 14:42, and 14:113).

Maryland. First-degree murder, either premeditated or during the commission of a felony, provided that certain death eligibility requirements are satisfied.

Mississippi. Capital murder (97-3-19(2) MCA); aircraft piracy (97-25-55(1) MCA).

Missouri. First-degree murder (565.020 RSMO).

Montana. Capital murder with 1 of 9 aggravating circumstances (46-18-303 MCA); capital sexual assault (45-5-503 MCA).

Nebraska. First-degree murder with a finding of at least 1 statutorily-defined aggravating circumstance.

Nevada. First-degree murder with 14 aggravating circumstances.

New Hampshire. Six categories of capital murder (RSA 630:1 and RSA 630:5).

New Jersey. Purposeful or knowing murder by one’s own conduct; contract murder; solicitation by command or threat in furtherance of a narcotics conspiracy (NJSA 2C:11-3C).

New Mexico. First-degree murder in conjunction with a finding of at least 1 of 7 aggravating circumstances (Section 30-2-1 A, NMSA).

New York. First-degree murder with 1 of 12 aggravating factors. Capital sentencing excludes persons determined to be mentally retarded.

North Carolina. First-degree murder (N.C.G.S. 14-17).

Ohio. Aggravated murder with at least 1 of 8 aggravating circumstances. (O.R.C. secs. 2903.01, 2929.01, and 2929.04).

Oklahoma. First-degree murder in conjunction with a finding of at least 1 of 8 statutorily defined aggravating circumstances.

Oregon. Aggravated murder (ORS 163.095).

Pennsylvania. First-degree murder with 18 aggravating circumstances.

South Carolina. Murder with 1 of 10 aggravating circumstances (§ 16-3-20(C)(a)). Mental retardation is a mitigating factor.

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South Dakota. First-degree murder with 1 of 10 aggravating circumstances; aggravated kidnaping.

Tennessee. First-degree murder.

Texas. Criminal homicide with 1 of 8 aggravating circumstances (TX Penal Code 19.03).

Utah. Aggravated murder (76-5-202, Utah Code annotated).

Virginia. First-degree murder with 1 of 12 aggravating circumstances (VA Code § 18.2-31).

Washington. Aggravated first-degree murder.

Wyoming. First-degree murder.

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412 The Punishment Dilemma

TABLE 13.2 Capital Offenses, by State, 1999 (continued)

Source: Snell, 2000, p. 3.

The death penalty is by far the most controversial sanction available on the sentencing palette. Those who support it argue that it has a strong deterrent value, and often cite research by Isaac Ehrlich (1975) whose research found that every execution in the United States resulted in “7 or 8 fewer murders” (p. 414). However his study has been criticized by many scholars (e.g., for incorrectly using statistics) and other research has found no reductions in homicide associated with use of the death penalty (e.g., Lempert, 1983; Sellin, 1959). Other death penalty supporters focus on the cost savings over imprisoning offenders for life in prison, but those individuals do not take into consideration the significant cost of appeals. Yet a third group of supporters argues that murderers deserve to die; this retribution-based argument is supported by surveys of the general population.

On the other side of the coin are those who oppose the death penalty, who cite the irreversibility of the penalty—the execution of an innocent person cannot be “undone.” One research team (Bedau and Radelet, 1987) examined capital cases between 1900 and 1985 and found that an innocent person had been convicted in 350 cases and that 139 of those parties were given the death sentence; of those 139 innocent individuals, twenty-three were executed. Of course, it is expected that some errors will creep into the justice system, but even one wrongfully executed person a year is considered to be too many by death penalty opponents. The now famous Innocence Project started by Barry Scheck and Peter Neufeld in 1992 at the Cardozo Law School (at Yeshiva University in New York) has responded to requests from thousands of inmates who seek their assistance in proving their inno- cence; the Project has successfully demonstrated the innocence of a number of convicts by relying on testing of DNA evidence found at crime scenes. The work by the Innocence Project and its fellow projects have clearly demonstrated that at least some convictions were wrongful, casting doubt on many others.

A second camp of death penalty opponents argues that the death penalty itself is cruel and unusual punishment, and that modern standards of decency prove the death penalty to be archaic, but polls of the public show that many citizens con- tinue to support the death penalty despite any evolving standards. A third camp of IS

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opponents notes that the penalty is discriminatory because blacks are more likely than whites to receive death and those who kill whites (versus blacks) are more likely to get the death penalty, as is discussed below. Supporters of the death penalty counter this argument by pointing out that those whose crimes are more heinous deserve the death penalty, and blacks may commit more violent crimes (e.g., Green, 1964).

The death penalty has undergone quite a legal battle, and several cases from the past few decades have nearly eradicated it. The first of those legal challenges was the 1968 decision rendered in Witherspoon v. Illinois. The defense in the With- erspoon case argued that the defendant’s death penalty jury was biased because people who had indicated that they had any objection to the death penalty were excluded from the jury under an Illinois law that allowed challenges for cause “of any juror who shall, on being examined, state that he has conscientious scruples

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A belief in divine intervention may have encouraged some early jurists to impose harsh sentences, because the innocent were expected to be rescued by divine intervention. Truly innocent people could even be saved from execution. When Anne Greene was “miraculously” revived in 1650 after being taken down from the scaffold from which she was hanged for killing her newborn, a contemporary scholar argued that she must certainly have been innocent because she had been prevented from dying; that she truly had not known she was pregnant and had delivered a stillborn child, as she had claimed at trial (Watkins, 1651). Similarly, this early 1500s English wall painting in Winchester Cathedral shows the Virgin Mary supporting Ebbo on the scaffold. Sentenced to die for a crime he did not commit, Ebbo’s death was prevented by the divine Virgin who held him up for three days to demonstrate his innocence. The Virgin and other divine beings are also credited with restoring unjustly amputated hands and intercepting in a multitude of wrongfully imposed death sentences. SOURCE: Courtesy of Jon’a Meyer.

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against capital punishment, or that he is opposed to the same.” Using that law, the prosecution had eliminated “nearly half ” of the potential jurors (1968, p. 512). The defense felt this was unfair because those who support the death penalty were both more likely to vote “guilty” and were more likely to impose the death penalty.

The Supreme Court agreed with Witherspoon that it was unfair to have a penalty phase jury (the jury that decides between imposing the death penalty or other sentences, such as life in prison) that favored capital punishment, but held that states could exclude those who could never consider giving the death penalty (e.g., because of their strong moral beliefs against capital punishment). This case was very important because it meant that potential jurors could no longer be excluded “simply because they voiced general objections to the death penalty.” Those who were unable to ever consider capital punishment could still be excluded because they would be unable to consider all the options available to them (i.e., they would automatically exclude death without regard for the crime). If you have ever seen the political buttons that say “Witherspoon excludable” on them, they show that the wearer would never impose the death penalty on anyone, no matter what the facts in a case were, meaning that they could legally be excluded from a punishment phase jury in a capital case.

The Supreme Court did not, however, agree with Witherspoon’s argument that those who support the death penalty are more likely to convict, and would therefore be unfit to judge guilt. Witherspoon had based that claim on three research studies showing those who favored capital punishment were also more likely to believe the prosecution and vote “guilty.” The court was not swayed by those particular studies, however, possibly because none of the three had yet been published and two involved college student samples. In the end, the court held that the “presently available information” was “too tentative and fragmentary to estab- lish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt” (Witherspoon v. Illinois, 1968, p. 517).

Later that same year, the Eighth Circuit Court of Appeals (which hears appeals from Arkansas) heard the Maxwell v. Bishop case in which a black man who had been sentenced to death for rape9 demonstrated through historical evi- dence that capital punishment had been used in rape cases almost exclusively against blacks who had raped whites (89 percent of executed rapists were black). The appeals court held that historical evidence is not enough, that a defendant must show that discrimination existed in his or her particular case. Of interest, the U.S. Supreme Court vacated the judgment and sent the case back to the federal district court two years later for that court’s decision on whether Maxwell should get a new sentencing hearing, but the rationale had nothing to do with racial bias. Instead, the high court was dismayed to learn that at least seven jurors had been excluded from Maxwell’s penalty phase jury on the basis of “grounds held impermissible in the Witherspoon case” (1970, p. 264). See Box 13.9 for the answers that resulted in the exclusion of three of the potential jurors.

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414 The Punishment Dilemma

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The third major attack on the death penalty came three years later in McGau- tha v. California (1971). The defense in McGautha focused on the guidelines given to death penalty jurors, or rather the lack of them. This issue had been raised in Maxwell v. Bishop (1970), but was essentially ignored by the U.S. Supreme Court because its focus was on whether jurors had been improperly excluded from his trial, but McGautha raised them again. The lack of guidelines, McGautha argued, made it impossible to determine why a particular person received the death penalty. Many offenders on death row had committed crimes that were less severe than those who were sent to prison. In some cases, co-defendants received different sentences for the same crime. In other words, McGautha argued, the death penalty is arbitrary and unfair because there is little ability to predict what penalty a given murderer will receive. The Supreme Court, however, said that the argument did not present sufficient legal grounds for overturning the death penalty.

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Available Sanctions 415

BOX 13.9

Witherspoon Excludables?

Although the issue was not raised by Maxwell, at least seven jurors had been excluded from his jury based only upon the following answers they provided to questions. As you read their answers, consider why the U.S. Supreme Court did not approve of the challenges for cause. Could one or more of these jurors actually have been a Witherspoon excludable? How could the trial judge have determined whether they were excludable under the Witherspoon v. Illinois (1968) case?

Potential juror #1: QUESTION: If you were convinced beyond a reasonable doubt at the end of this trial that the

defendant was guilty and that his actions had been so shocking that they would merit the death penalty do you have any conscientious scruples about capital pun- ishment that might prevent you from returning such a verdict?

ANSWER: I think I do.

Potential juror #2: QUESTION: Do you entertain any conscientious scruples about imposing the death penalty? ANSWER: Yes, I am afraid I do.

Potential juror #3: QUESTION: Mr. Adams, do you have any feeling concerning capital punishment that would

prevent you or make you have any feelings about returning a death sentence if you felt beyond a reasonable doubt that the defendant was guilty and that his crime was so bad as to merit the death sentence?

ANSWER: No, I don’t believe in capital punishment.

Source: Quotes taken from Maxwell v. Bishop, 1970, pp. 264–265).

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Then came Furman v. Georgia (1972), the landmark decision that shook up the country’s use of the death penalty. The defense in this case argued that the death penalty was given in an arbitrary and capricious manner and was a violation of the Eighth Amendment (which bans cruel and unusual punishments). Furman claimed that juries imposed the death penalty without any real guidance, and that made the decisions unpredictable and unfair. The Supreme Court agreed with Furman and declared the death penalty unconstitutional as it was being administered at that time. All death sentences in the country were immediately overturned and changed to life in prison. That is how Robert Lee Massie was released in 1978—his sentence was con- verted due to Furman. The Court in Furman did not say the death penalty itself was unconstitutional, but rather that it could not be imposed in such an arbitrary manner. A number of states, especially in the South, began rewriting their death penalty statutes to provide guidance to juries regarding who should get the death penalty. In general, they created a list of aggravating and mitigating factors that should be considered.

The test of the new guidelines came four years later in Gregg v. Georgia (1976). Here, Georgia argued its new jury guidelines removed the arbitrary and capricious element from the death penalty, so that Gregg’s sentence of death was valid. The Supreme Court agreed that the new guidelines meant that the death penalty was not as arbitrary and capricious as those struck down in Furman. This allowed other states to rewrite their statutes to provide guidance to jurors. See Box 13.10 for a chart showing the number of executions from 1930 to 1999, which shows the effect of Furman and Gregg on capital punishment.

One of the most recent substantive attacks on the death penalty came in 1987. McCleskey v. Kemp resurrected the issue of discrimination by adding in a new fac- tor, victim race. In this case, evidence from the famous Baldus study (named after the primary researcher) was presented. In this study, three social science researchers examined more than 2,000 murder cases in Georgia in the 1970s. They found that murderers who killed whites were 4.3 times more likely to get the death penalty than those who killed blacks, even when other factors, such as offense seri- ousness, were statistically controlled for using multivariate statistics. The researchers also found that prosecutors were more likely to seek the death penalty when the defendant was black and the victim white; prosecutors opted to seek the death penalty in 70 percent of cases involving this racial mix versus fewer than a third of other cases (1987, p. 287). The defense argued that the death penalty statistics, in and of themselves, demonstrated a bias in its usage. The U.S. Supreme Court took the position seen two decades earlier in Maxwell v. Bishop (1968): Statistical dis- crepancies do not indicate that the death penalty is unfairly imposed in any particu- lar case. While it recognized the Baldus study as “sophisticated,” the court noted that it did not point to discrimination against McCleskey himself:

Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the deci- sionmakers in his case acted with discriminatory purpose. He offers no evidence specific to

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416 The Punishment Dilemma

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his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus study. McCleskey argues that the Baldus study10 compels an inference that his sentence rests on purposeful discrimination. McCleskey’s claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black. (1987, pp. 292–293)

McCleskey was the last major general attack on the death penalty and is the most recent case that stood a chance of invalidating the death penalty across the nation. Capital appeals are constantly being raised, however, so the ultimate penalty may someday be a relic of the past. Recent public opinion polls suggest that Americans are increasingly questioning the death penalty, and its support may be decreasing (e.g., Entzeroth, 2001; Gallup, 2000).

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Available Sanctions 417

200

160

120

0 1930 1940 1950 1960 1970 1980 1990 1999

Persons executed, 1930 –1999

Number of executions

BOX 13.10

Persons Executed, 1930–1999

As you look over this graph, notice the nearly decade-long span that was nearly devoid of exe- cutions. It is clear that the Furman and Gregg cases had some impact on capital punishment, but a closer look reveals that the number of executions had declined rapidly before the 1972 Fur- man decision. What do you think could contribute to this drop?

Source: Snell, 2000, p. 11.

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HOW DO THE OPTIONS “STACK UP” UNDER THE FIVE PUNISHMENT THEORIES?

Now that we have examined the philosophies of punishment and some available punishment options, it is important to see how sentencing options and philosophies are intertwined. Think about each of the sentencing options discussed in this chap- ter and which philosophy each best reflects. Fines, for example, have little incapac- itative value but could be effective deterrents and could also fulfill retributive goals. Jail and prison can be excellent forms of incapacitation and also serve ret- ributive and deterrent functions. Rehabilitation is probably best served by regular or intensive supervision probation, whereas restoration is best served by restorative justice initiatives such as restitution and community service.

Judges who adhere to a particular philosophy are logically more likely to pick penalties that suit that approach. Rehabilitation-oriented judges, for example, are more likely to rely on sentences they feel will help offenders get back on the right track, such as probation. Retribution-oriented judges may favor jail terms (Meyer and Jesilow, 1997, p. 108). This does not mean that judges are hemmed in by one philosophy. Instead, judges are likely to follow the philosophy they feel is appro- priate for the individual offenders before them (Meyer and Jesilow, 1997, p. 61). One shoplifter, for example, may get probation coupled with a referral to social services agencies to help him or her get a job while another finds himself or herself in jail for the same offense. Even with these differences, however, sentencing philosophies still affect sentences. After you figure out which options are best suited for the five philosophies, take a look at Table 13.3 at the end of this chapter to see how your answers compare.

CONCLUSION

In this chapter, we first looked at discretion and its role in sentencing, differentiated the five major theories of punishment, and looked at several options available to sen- tencing agents, including the controversial death penalty. Without discretion, judges cannot fashion penalties, but too much discretion may be abused. An individual judge’s sentencing philosophy may have a lot to do with the penalties imposed in his or her courtroom, especially when discretion is sufficient to allow some leeway. A third factor that helps determine sentences are the specific options available to judges and the public’s perception of those options. As more and more alternatives are developed, the sentences imposed in American courts may change dramatically.

In the next step, we will delve deeper into the art of sentencing, examining, for example, how judges set penalties and the factors that are associated with sentences.

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

418 The Punishment Dilemma

IS B

N : 0 -5

3 6 -1

6 5 4 4 -0

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41

N 42 L 43

T A

B L

E 1

3 .3

H o

w W

el l a

S a

m p

le o

f S

en te

n ci

n g

O p

ti o

n s

“S ta

ck s

U p

” U

n d

er t

h e

F iv

e P

u n

is h

m en

t T

h eo

ri es

(N o

te :S

en te

n ci

n g

go a

ls w

il l

[a n

d s

h o

u ld

] va

ry w

it h

e ve

ry c

ri m

e, so

a p

a rt

ic u

la r

p u

n is

h m

en t’

s fa

il u

re t

o “

st a

ck u

p ”

u n

d er

a p

a rt

ic u

la r

se n

te n

ci n

g p

h il

o so

p h

y is

n o

t n

ec es

sa ri

ly a

p ro

b le

m )

D et

er re

n ce

P en

al ty

G en

er al

S p

ec ifi

c In

ca p

ac it

at io

n R

eh ab

il it

at io

n R

et ri

b u

ti on

R es

to ra

ti on

F in

C om

m un

it y

S er

vi ce

In fo

rm al

P ro

ba ti

A cc

ep ta

bl e

if t

he fi

ne d

et er

s ot

he rs

fr om

c om

m it

ti ng

cr im

es (

e. g.

,i f

dr iv

er s

do n

ot p

ar k

in h

an di

ca pp

ed zo

ne s

so a

s to

av oi

d th

e fi

ne s)

A cc

ep ta

bl e

if t

he co

m m

un it

y se

rv ic

e de

te rs

o th

er s

fr om

cr im

N ot

v er

y go

od .

W ho

i s

de te

rr ed

b y

ha vi

ng f

ri en

ds a

nd ac

qu ai

nt an

ce s

to ld

to s

ta y

ou t

of tr

ou bl

A cc

ep ta

bl e

if t

he fi

ne d

et er

s fu

tu re

cr im

es b

y th

e of

fe nd

er .

A cc

ep ta

bl e

if t

he co

m m

un it

y se

rv ic

e de

te rs

t he

in di

vi du

al o

ff en

de r

fr om

f ut

ur e

cr im

M ay

w or

k if

of fe

nd er

s do

n ot

co m

m it

f ut

ur e

cr im

es b

ec au

se th

ey f

ea r

fu tu

re in

vo lv

em en

t w

it h

th e

ju st

ic e

sy st

em .

U na

cc ep

ta bl

e be

ca us

e fi

ne s

do no

t pr

ot ec

t so

ci et

y. In

s om

e re

sp ec

ts ,

th ey

e nd

an ge

r it

b y

ca us

in g

so m

e of

fe nd

er s

to co

m m

it a

dd it

io na

l cr

im es

s uc

h as

t he

ft to

p ay

t he

ir fi

ne s.

B ar

el y

ac ce

pt ab

le .

O ff

en de

rs a

re in

ca pa

ci ta

te d

fo r

on ly

t he

h ou

rs t

he y

ar e

ac tu

al ly

co m

pl et

in g

th e

w or

N ot

a cc

ep ta

bl e.

In fo

rm al

p ro

ba ti

on do

es n

ot p

ro te

ct t

he re

st o

f so

ci et

U na

cc ep

ta bl

e be

ca us

e it

d oe

s no

t ad

dr es

s of

fe nd

er s’

un de

rl yi

ng n

ee ds

fo r

in te

rv en

ti on

s. In

n o

w ay

d o

fi ne

s se

ek t

o “c

ur e”

th e

cr im

in al

A cc

ep ta

bl e

if of

fe nd

er s

ne ed

t o

le ar

n w

or k

sk il

ls o

r w

or k

ha bi

ts .

N ot

a cc

ep ta

bl e

un le

ss o

ff en

de rs

’ ne

ed s

ar e

m et

. A be

tt er

c ho

ic e

is re

gu la

r pr

ob at

io n

w it

h m

an da

te d

pr og

ra m

A cc

ep ta

bl e

fo r

no ns

er io

us o

ff en

se s

w he

re fi

ne s

ar e

ap pr

op ri

at e.

O ft

en ,

fi ne

s ar

e en

ou gh

o f

a pe

na lt

y to

p un

is h.

G oo

d fo

r no

ns er

io us

o ff

en se

s be

ca us

e it

i s

a ta

x on

o ff

en de

rs ’

fr ee

ti m

e, w

hi ch

m ak

es it

a p

un is

hm en

N ot

a cc

ep ta

bl e

be ca

us e

it d

oe s

no t

pe na

li ze

t he

of fe

nd er

. S om

e sa

y it

i s

a sl

ap o

n th

e w

ri st

B ec

au se

fi ne

s go

t o

th e

st at

e, re

st or

at iv

e ju

st ic

e is

n ot

m et

. R

es ti

tu ti

on i

s a

be tt

er c

ho ic

e be

ca us

e vi

ct im

s ar

e re

st or

ed t

o so

m e

de gr

ee a

nd of

fe nd

er s

pl ay

a ro

le i

n th

e re

st or

at iv

e pr

oc es

E xc

el le

nt ,

es pe

ci al

ly w

he n

of fe

nd er

s w

or k

di re

ct ly

f or

v ic

ti m

s, as

i n

re m

ov in

g th

ei r

gr af

fi ti

f ro

m w

al ls

N ot

g oo

d. I

t do

es no

t ad

dr es

s th

e ne

ed s

of o

ff en

de rs

or v

ic ti

m s.

IS B

N : 0 -5

3 6 -1

6 5 4 4 -0

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

T A

B L

E 1

3 .3

H o

w W

el l a

S a

m p

le o

f S

en te

n ci

n g

O p

ti o

n s

“S ta

ck s

U p

” U

n d

er t

h e

F iv

e P

u n

is h

m en

t T

h eo

ri es

( co

n ti

n u

ed )

D et

er re

n ce

P en

al ty

G en

er al

S p

ec ifi

c In

ca p

ac it

at io

n R

eh ab

il it

at io

n R

et ri

b u

ti on

R es

to ra

ti on

R eg

ul ar

P ro

ba ti

on w

it h

M an

da te

d P

ro gr

am s

In te

ns iv

e S

up er

vi si

on P

ro ba

ti on

( IS

P )

N ot

v er

y go

od ,b

ut be

tt er

t ha

n in

fo rm

al p

ro ba

ti on

. S

om e

po te

nt ia

l of

fe nd

er s

m ay

av oi

d cr

im e

so t

he y

w il

l no

t be

f or

ce d

in to

p ro

gr am

s th

ey fe

el a

re a

h as

sl e

or ar

e no

t ap

pr op

ri at

e fo

r th

em .

N ot

v er

y go

od ,b

ut be

tt er

t ha

n ot

he r

fo rm

s of

p ro

ba ti

on .

T he

c on

di ti

on s

te nd

t o

be o

ne ro

us (e

.g .,

cu rf

ew s

an d

li m

it s

on as

so ci

at es

) so

s om

e po

te nt

ia l

of fe

nd er

s w

il l

av oi

d cr

im e

to av

oi d

th em

N ot

v er

y go

od ,b

ut be

tt er

t ha

n in

fo rm

al pr

ob at

io n.

S om

e of

fe nd

er s

co ns

id er

pa rt

ic ip

at io

n in

t he

pr og

ra m

s to

b e

a ha

ss le

n ot

w or

th re

pe at

in g,

so t

he y

av oi

d fu

rt he

r of

fe ns

es . C

on si

de r,

fo r

ex am

pl e,

le ng

th y

dr un

k dr

iv er

e du

ca ti

on co

ur se

N ot

v er

y go

od ,b

ut be

tt er

th an

o th

er fo

rm s

of p

ro ba

ti on

si nc

e so

m e

m ay

av oi

d cr

im e

ju st

to av

oi d

th e

so m

et im

es on

er ou

s co

nd it

io ns

(e .g

., cu

rf ew

s) . I

n fa

ct ,w

he n

gi ve

n th

e ch

oi ce

,s om

e of

fe nd

er s

ch oo

se pr

is on

o ve

r IS

P, so

it h

as s

om e

de te

rr en

t po

w er

N ot

a cc

ep ta

bl e.

P ro

ba ti

on d

oe s

no t

pr ot

ec t

th e

re st

o f

so ci

et y,

ex ce

pt du

ri ng

t he

a ct

ua l

ti m

e of

fe nd

er s

sp en

d pa

rt ic

ip at

in g

in p

ro gr

am s.

A cc

ep ta

bl e

if t

he co

nd it

io ns

l im

it of

fe nd

er s’

ab il

it ie

s to

e ng

ag e

in c

ri m

e. S

in ce

i t

is o

ft en

co up

le d

w it

h el

ec tr

on ic

m on

it or

in g

an d

cl os

e su

pe rv

is io

n, IS

P c

an p

ro te

ct t

he co

m m

un it

A pp

ro pr

ia te

, es

pe ci

al ly

i f

pr og

ra m

s to

w hi

ch of

fe nd

er s

ar e

se nt

ar e

ef fe

ct iv

e in

re du

ci ng

re ci

di vi

sm . S

om e

pr og

ra m

s al

so ad

dr es

s fa

m il

y ne

ed s,

su ch

a s

pa re

nt in

g sk

il ls

tr ai

ni ng

,t hu

s re

du ci

ng t

he cr

im in

al it

y of

ot he

rs ,t

oo .

A pp

ro pr

ia te

i f

th e

co nd

it io

ns i

nc lu

de re

ha bi

li ta

ti on

- or

ie nt

ed o

pt io

ns su

ch a

s su

bs ta

nc e

ab us

e pr

og ra

m s.

I n

fa ct

,k no

w in

g th

at on

e’ s

re la

ps es

a re

m or

e li

ke ly

t o

be de

te ct

ed m

ay m

ot iv

at e

of fe

nd er

s to

p ar

ti ci

pa te

f ul

ly in

r eh

ab p

ro gr

am s.

N ot

a cc

ep ta

bl e

be ca

us e

re ha

b pr

og ra

m s

ar e

no t

su pp

os ed

t o

be pu

ni sh

m en

t, al

th ou

gh s

om e

of fe

nd er

s m

ay f

ee l

pu ni

sh ed

b y

ha vi

ng to

p ar

ti ci

pa te

i n

th em

A pp

ro pr

ia te

i f

th e

co nd

it io

ns a

re on

er ou

s (e

.g .,

li m

it s

on w

ho of

fe nd

er s

m ay

as so

ci at

e w

it h

an d

ra nd

om d

ru g

te st

in g)

. W he

n gi

ve n

th e

ch oi

ce ,

so m

e of

fe nd

er s

ch oo

se p

ri so

n ov

er IS

P, w

hi ch

s ho

w s

th at

o ff

en de

rs v

ie w

IS P

a s

pu ni

sh m

en t.

N ot

a cc

ep ta

bl e

be ca

us e

pr ob

at io

n ad

dr es

se s

of fe

nd er

’s pr

ob le

m s,

bu t

of te

n ig

no re

s th

e vi

ct im

s. If

c on

di ti

on s

in cl

ud e

re st

it ut

io n

or o

th er

r es

to ra

ti ve

ju st

ic e

in it

ia ti

ve s,

th is

o pt

io n

m ay

b e

an e

xc el

le nt

w ay

t o

ad dr

es s

re st

or at

io n.

A cc

ep ta

bl e

on ly

i f

co nd

it io

ns i

nv ol

ve pa

rt ic

ip at

io n

in re

st or

at iv

e ju

st ic

e in

it ia

ti ve

IS B

N : 0 -5

3 6 -1

6 5 4 4 -0

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41

N 42 L 43

D et

er re

n ce

P en

al ty

G en

er al

S p

ec ifi

c In

ca p

ac it

at io

n R

eh ab

il it

at io

n R

et ri

b u

ti on

R es

to ra

ti on

Ja il

T er

P ri

so n

S en

te nc

G oo

d if

t he

t er

m i

s su

ffi ci

en t

to d

et er

ot he

rs f

ro m

co m

m it

ti ng

c ri

m es

G oo

d if

t he

t er

m i

s su

ffi ci

en t

to d

et er

ot he

rs f

ro m

co m

m it

ti ng

c ri

m es

G oo

d if

t he

t er

m i

s su

ffi ci

en t

to d

et er

th e

in di

vi du

al of

fe nd

er f

ro m

fu tu

re c

ri m

es .

G oo

d if

t he

t er

m i

s su

ffi ci

en t

to d

et er

th e

in di

vi du

al of

fe nd

er f

ro m

fu tu

re c

ri m

es .

G oo

d fo

r th

e le

ng th

of t

he t

er m

b ec

au se

th e

of fe

nd er

i s

ke pt

of f

th e

st re

et s

du ri

ng t

hi s

ti m

e. U

nf or

tu na

te ly

, so

m e

of fe

nd er

s co

nt in

ue t

o co

m m

it cr

im es

i n

ja il

,b ut

th ei

r ab

il it

y to

d o

so i

s gr

ea tl

y cu

rt ai

le d.

E xc

el le

nt . P

ro te

ct s

pu bl

ic f

ro m

of fe

nd er

s’ fu

tu re

cr im

es . D

ra w

ba ck

is t

ha t

ot he

r pr

is on

er s

ca n

st il

l be

v ic

ti m

iz ed

,a nd

so m

e of

fe nd

er s

st il

l en

ga ge

i n

cr im

es ag

ai ns

t th

e pu

bl ic

(e .g

., sc

am s)

U na

cc ep

ta bl

e be

ca us

e m

os t

ja il

s do

n ot

h av

e ne

ce ss

ar y

pr og

ra m

s av

ai la

bl e

fo r

of fe

nd er

s w

ho n

ee d

th em

a nd

s en

te nc

es ar

e to

o sh

or t

to br

in g

ab ou

t m

ea ni

ng fu

l ch

an ge

G oo

d pr

os pe

ct un

de r

in de

te rm

in at

e se

nt en

ce s

be ca

us e

m em

be rs

o f

ps yc

ho lo

gi ca

l an

d so

ci al

w or

k co

m m

un it

ie s

ca n

de te

rm in

e w

he n

of fe

nd er

s ar

e re

ad y

to r

e- en

te r

so ci

et y.

A cc

ep ta

bl e

un de

r de

te rm

in at

e se

nt en

ci ng

b ec

au se

pr og

ra m

m in

g ca

n be

i m

pl em

en te

E xc

el le

nt . E

ve n

sh or

t ja

il t

er m

s ar

e co

ns id

er ed

a s

tr on

g pu

ni sh

m en

E xc

el le

nt . E

ve n

sh or

t pr

is on

t er

m s

ar e

co ns

id er

ed a

st ro

ng p

un is

hm en

N ot

a cc

ep ta

bl e.

A ct

ua ll

y, ja

il i

s us

ua ll

y op

po se

d by

re st

or at

io n

ad vo

ca te

s be

ca us

e th

er e

is n

o at

te m

pt to

r es

to re

e it

he r

pa rt

y an

d tw

o w

ro ng

s do

n ot

m ak

e a

ri gh

N ot

a cc

ep ta

bl e.

A ct

ua ll

y, pr

is on

i s

us ua

ll y

op po

se d

by re

st or

at io

n ad

vo ca

te s

be ca

us e

th er

e is

n o

at te

m pt

to r

es to

re e

it he

r pa

rt y

an d

tw o

w ro

ng s

do n

ot m

ak e

a ri

gh t.

I f

of fe

nd er

s w

or k

w hi

le i

n pr

is on

a nd

se nd

t he

m on

ey t

o th

ei r

vi ct

im s,

so m

e re

st or

at io

n is

ac hi

ev ed

,h ow

ev er

(c o n ti

n u ed

)

IS B

N : 0 -5

3 6 -1

6 5 4 4 -0

01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 N 43 L

T A

B L

E 1

3 .3

H o

w W

el l a

S a

m p

le o

f S

en te

n ci

n g

O p

ti o

n s

“S ta

ck s

U p

” U

n d

er t

h e

F iv

e P

u n

is h

m en

t T

h eo

ri es

( co

n ti

n u

ed )

D et

er re

n ce

P en

al ty

G en

er al

S p

ec ifi

c In

ca p

ac it

at io

n R

eh ab

il it

at io

n R

et ri

b u

ti on

R es

to ra

ti on

D ea

th P

en al

ty A

cc ep

ta bl

e be

ca us

e it

d et

er s

at l

ea st

so m

e m

em be

rs o

f th

e pu

bl ic

f ro

m co

m m

it ti

ng c

ap it

al of

fe ns

es .

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D I S C U S S I O N Q U E S T I O N S

1. Think of the last time you were tempted to violate some norm (e.g., to speed, park illegally, or cheat in a class). Did your perception of certainty play a role in your decision to engage or not engage in the violation of that norm?

2. How could a sentence be a specific deterrent but not a general deterrent? Could a sentence be a general deterrent, but not a specific deterrent? Provide examples for your answers.

3. Look over the interview segments in Boxes 1–5. Each quote is from a different judge, but can you imagine some quotes being provided by the same judge? How could this be possible?

4. Chris Cross has stolen a CD from his local music store. Can you imagine some circumstances that would make you lean toward each of the five sentencing philosophies? For example, if you learned that Chris was eleven years old, which philosophy might you lean toward? If you learned that he was stealing CDs to sell so he could buy pornographic materials, which philosophy would seem most appropriate? Think of circumstances that would cause you to lean toward each of the sentencing philosophies.

5. Would you support bringing back any historic penalties? If so, which ones and why? If not, why? Which legal challenges would likely be raised against the penalty you reinstituted?

6. How could probation be reformed to make it more palatable to the public? Would the changes increase or decrease its effectiveness as a rehabilitation strategy?

7. Scan your local news or the major newswires (such as the Associated Press or Reuters) for cre- ative sanctions. Why do you think the judges imposed those specific penalties? Could you think of instances where creative penalties were used inappropriately? Can you imagine some creative penalties that you think might work?

8. What current attacks on the death penalty are in the news? How much of a chance do you think those cases have to invalidate capital punishment? Assume your opinion is being solicited at a general forum on the death penalty. If you were allowed to state just one important rationale for or against capital punishment, what would you say?

9. Label each of the following five quotes from actual municipal court judges with the sentencing philosophy you feel it best illustrates. Each philosophy is used only once. Explain why you feel the interview segment illustrates the philosophy to which you matched it. A. [When talking about cases that are suitable for picking up trash along the highways]: A real

jerk who’s done something so bad, but it’s not serious enough to get them a felony, or not seri- ous enough to get them jail time. But it’s such a bad thing he did, that you want to punish him, almost eye for an eye. So, you find something for that person to do.

B. Hopefully [a sentence] keeps you from doing it again and possibly keeps somebody else from doing the same thing again. . . . If I just slap you on the hand right now and don’t really hit you a little hard, you’re going to do it again and your friends are going to do it again.

C. I feel that [community service sentences are] a good alternative. Most of the people we see, I would rather have them working rather than sitting in their dayroom watching TV. They will feel better about themselves and we are getting something physically done—cleaning up graf- fiti, for example.

D. I’d like to have some residential treatment programs for mentally ill people who come into the criminal justice system and can’t find access to the mental health system because they’re bor- derline, so that they drift between the systems and end up doing lots of jail time because they’re marginally handicapped. And, I’d like to have some long-term residential protected placements for those people so that I can stabilize them and either reintegrate them or put them into low supervision mental health programs, otherwise they end up in the street, addicted to alcohol and any other street drug that they can get their hands on. I would like to have more of those kinds of alternatives.

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E. The chief recipient of the harm of the DUIs would be the common ordinary citizen like you and me who is around the roadway. . . . I do have to keep in mind that there are a lot of children [and] citizens out there, and they need to be protected from this type of thing.

N O T E S

1. Remember that our system dictates that those who lack culpability should not be punished. See the discussion of mens rea and criminal defenses in Step 2 for more information on this impor- tant concept.

2. Unfortunately, castrated men are still able to commit sexual assaults that do not involve inter- course.

3. “Nalyeeh” is a Navajo word for that which undoes any harm done to a person; it includes mone- tary and other forms of compensation, apologies, promises to reform, acknowledgement of harm, and so forth.

4. Actually, day-fine units are a percentage of one’s daily salary, so that fifteen or so units make up one day. This allows greater flexibility in fining options, especially for very minor offenses, such as letting one’s parking meter run out. So, while our example is designed to be easy to under- stand, it is not entirely precise.

5. At the time of this writing, Vanjoki was appealing the fine amount because his income had dropped dramatically in the year prior to his receiving the ticket. Rytsola had already paid the $74,600 fine.

6. The other purposes of day reporting services were reducing overcrowding at detention facilities, building political support for the program itself, and providing supervision for safety of the public.

7. Some offenders may be sentenced to jail on multiple misdemeanors, resulting in sentences of more than one year. In addition, a few jurisdictions allow sentences in excess of one year for mis- demeanors. Jails also house a number of individuals who are awaiting transfer to a state or fed- eral prison to serve their sentences.

8. It has been reported that Albuquerque-based Judge Love read a Spiderman comic in which a device similar to the modern-day electronic monitoring anklets was used. The judge thought the idea might work for those on home detention and asked an engineer if he could manufacture such a device. The rest of the story is history.

9. One could be executed for rape of an adult woman until 1977, when the United States Supreme Court disallowed that practice in Coker v. Georgia. Louisiana still allows the death penalty for rape, but only if the victim is under the age of twelve.

10. The study was named after the authors, professors David Baldus, Charles Pulaski, and George Woodworth.

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