APA format and no copy or paste please!!

· Looking Through a Different Lens

Chapter 2 of your text discusses deviant behavior. Using a minimum of three (3) external references, do you agree or disagree with the how conflict theorists view the police and what their role is in social control?

In detail, explain why or why not you agree with the social control theory.

Here are some notes down below to help!!!

Perspectives on the Police Sociology and Police Studies

This course and text provide a comparative look at various police topics. The authors analyze information from the police issues in the United States and at least, one other country. Why is it important to conduct a comparative analysis?

1. Gives us other possibilities

2. Greater insight into human behavior

3. Look at reform

4. Allows us to look deeper into our own police practices

In order to better understand the functions of police, we must first examine the role sociology plays.

What is sociology?

Sociology is a discipline that is a way of understanding and explaining human behavior. By using observational methods, we attempt to explain why people do what they do. If Sociology study’s groups of people and behaviors, it would seem, instinctively, we can study and explain why police do what they do. Sociology uses several perspectives in an attempt to explain human behavior.

Two types of sociology:

· Pure Sociology

. Using scientific methods to describe society and societal behavior

· Applied Sociology

. Using scientific methods to find and test solutions to problems that afflict society

Where did this discipline start and how is it related to policing as we know it today?

Sociology began in the mid 1800’s and early 1900’s as a result of the following:

· The French Revolution and increased democratization

· The Industrial Revolution and the rise of capitalist economies

· The emergence of socialist thought in reaction to capitalism

· Urbanization and rural-urban migration

· Scientific insight into human behavior replacing abstract explanations

Sociologists want to find solutions to social problems. How can this help law enforcement?

It helps law enforcement to put in place better policies and procedures to serve the public. Sociologists gain this understanding by observation, surveys, experiments, and analysis.How is individual behavior to the social structure and the culture that produced it defined? What do we call this? We call it the sociological imagination. How do we determine if there is a relationship? We use what is called a hypothesis. A hypothesis suggest how two classes of a occurrences may be connected.

What are the three major sociological perspectives?

· Functionalism

· Conflict

· Interactionism

What is functionalism?

Functionalism primarily examines how societies develop and maintain social order

· Studying and understanding how societies develop and maintain social order

· Examining how behaviors contribute to the effective functioning of society

· Assumes all parts of an orderly society are integrated and interdependent

· Change in one aspect of society brings about change to others.

· Police play a role in all of the above

Two parts to the functionalist perspective: 1) manifest and 2) latent. Manifest are obvious and intentional, whereas latent are less obvious and often unanticipated. How does this fit in with the functions of policing?

What is the conflict perspective?

· Conflict exists between groups in any given society.

· Which groups control scarce resources and which groups do not

· Who benefits the most from the status quo

· Social change is needed and beneficial.

· Change can be a positive force.

· Law enforcement practices disproportionately aimed at poor and powerless

· Different penalties for “crime on the streets vs. crime in the suites”

Have’s versus the have not’s

Functionalists present some sort of cohesiveness, whereas the conflict is just that, conflict or competition among groups. This is a ‘powerful versus a weak’ perspective. Social change is needed and beneficial.

What is Interactionism?

As humans we have the capacity to think, but we are molded by interactions with others. We are socialized how to think and behave.

· Symbolic interactionism

. Humans are molded by interactions with others.

. Interactions help individuals learn what is meant or symbolized.

. Learning the meanings helps us interact with each other.

· People do not directly respond to everything they encounter every day; they interpret them.

· “Reality” is socially constructed.

How do we, sociologically, think about the selection of police officers based on the three perspectives?

· Functionalists

. Find the best candidates through tests, exams, and background investigations

. Best individuals meet community expectations of performance and professionalism

· Conflict Theorists

. Who benefits under the current qualifications and selection criteria?

. Who are likely to become police officers?

· Interactionists

. Subjective dynamics of making a good impression on the hiring board

. Strategies individuals use to convince the board of their superiority

Police and Social Control

Part two of this module discusses the role of police and social control. In previous courses you have learned the functions of law enforcement officers. According to your assigned reading, the authors’ state officers are expected to do the following:

· Prevent and control behavior that threatens life and property

· Help individuals in danger of physical harm

· Maintain the orderly movement of people and vehicles

· Help those who have difficulty taking care of themselves

· Reduce or resolve conflicts

· Identify issues that may eventually turn into serious problems

· Contribute to feelings of safety and security in their jurisdictions

The authors assert “Society expects behaviors values, norms, and beliefs to be upheld” (Palmiotto and Unnithan, 2011, pg. 21) including behaviors of the police. How are values, beliefs, and norms defined?

Values are defined by the culture of the society and where the individual lives. Beliefs are based on values. They are “concreate statements members of society accept as true” (pg. 23).

· Values

. Abstract standards used to communicate to members of a group what is expected

· Beliefs

. Explicit statements that members of a society accept as true

· Norms

. Rules by which society instructs the behavior of individual members

· Deviance

. Behavior that violates norms

Two types of norms have also been mentioned in your readings; (1) Folkways and (2) Mores. Crime is a form of deviance and a violation of both folkways and Mores. As we study this chapter, we learn that police are only one possible form of reaction to deviance. There are priests, ministers, physicians, and mental health professionals. The difference is the use of force permitted, where in this group, the police are the only ones authorized to use force.Is there uniformity among police reactions to acts of criminal deviance? No. Reactions to crime vary based on influences and types or classes of crimes.

As mentioned in the opening of this lecture, we are to explore the role of police and social control. Let’s start by defining social control. There are two types of social control. There is informal and formal. What is the difference and why is it important?

· Informal social control is when we do not engage in deviant behavior or bad behavior out of fear of judgment by those close to us.

· Formal social control is a reaction to negative/bad behavior by those designated to maintain control and order, such as police officers.

Reflecting back to chapter 1, there were three perspectives used by sociologists. They were functionalism, conflict, and interactionism.

Police and Social Control Internationally: Japan

· Reputation as a country with low rates of crime

· Cultural values act together and help police prevent criminal behaviors

· Japanese culture reflects:Characterized by high level of ethnic homogeneity

. Geography (island nation)

. Form of society (recent democracy and capitalism)

. History (martial and monarchial traditions, defeat and occupation in WW2)

· Characterized by high level of ethnic homogeneity

· Harmony in society has priority over individualism.

· Has a traditional form of hierarchy, submission to those of higher ranking

Paper 2

· Shame on You (or Shame on the Judge)

Recently, some courts and some judges have ordered punishments that “shame” defendants as a result of the crimes these defendants have committed.

· For example, people have been ordered to hold “idiot” signs and in Utah the mother of a 13-year-old girl was ordered to cut the ponytail of her daughter in order to reduce a community service requirement.

In a 2-3-page paper, using APA format, address the issue “Is Shaming Right?”

You should identify the purposes of criminal punishment, trends in punishment, and then examine whether or not shaming can punish, educate and/or rehabilitate.

Finally, you should address whether or not shaming punishments should be used in the criminal punishment process and provide support for your reasoning.

You should use detailed examples in you paper and explain your analysis thoroughly. You are required to use 2-3 outside sources and incorporate those into your paper.

Please be sure to include a reference page at the end of your paper.

Here are some notes down below to help!!!

Chapter 1

The Criminal Law

The criminal law can be boiled down to answering two questions:

(1) What behavior deserves criminal punishment, and

(2) What is the appropriate punishment for criminal behavior.

Model Penal Code

· The American Law Institute’s (ALI) Model Penal Code (MPC) provides a definition of behavior that deserves punishment also known as criminal liability.

· Criminal liability falls on “conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests” (1985, § 1.02(1)(a)).

Criminal and Non-Criminal Wrongs

Non-criminal wrongs are called “torts.” They are private wrongs for which one party (plaintiff) can sue the party who wronged them (defendant) and recover money (damages). Crimes and torts represent two different ways our legal system responds to social and individual harm. Crimes and torts are both different and similar.

The most important difference is criminal conviction. The case of State v. Chaney (1970) demonstrates the problem involved with not carrying out the threat of punishment when a crime is committed.

Classification of Crimes

Crimes can be classified or graded according to many schemes. The most widely used scheme for classifying crimes is according to the kind and quantity of punishment.

· Felonies are crimes punishable by death or confinement in the state’s prison for one year to life without parole.

· Misdemeanors are punishable by fine and/or confinement in the local jail for up to one year. It is important to recognize the different procedures for felonies and misdemeanors.

General and Specific (or Special) Criminal Law

Criminal law consists of two parts: a general part and a special part.

· The general part of criminal law consists of principles that apply to more than one crime. Most state criminal codes today include a general part. The special part of criminal law defines specific crimes and arranges them into groups according to subject matter.

Sources of Criminal Law

Most criminal law is found in state criminal codes created by elected representatives in state legislatures and municipal codes created by city and town councils elected by the people.

There’s also a substantial body of criminal law in the U.S. Criminal Code created by Congress as well as laws created administrative agencies. Judges’ court opinions were the original source of criminal law. Judge-made law was called common law.

Criminal codes evolved from common law crimes. Common law felonies and misdemeanors still have familiar names and meanings. The English colonists brought the common law with them and incorporated it into their legal systems.

· Although most states have abolished common law crimes they still impact the current law. Although there is no federal common law there are federal common law crimes.

Reformers have sometimes called for the abolition of common law crimes. Most states have codified their criminal law. After the final draft of the Model Penal Code (MPC) in 1962, most states changed their penal code to be more like the MPC.

Although municipalities have broad power to create criminal law, there are limits to what they can do by the constitution and states codes and they cannot create felonies.

Federal and state legislatures also allow administrative agencies to make rules known as administrative crimes. These are a controversial but rapidly growing source of criminal law.

Federal Criminal Law

Although we generally refer to criminal law as a single entity, there are actually 52 separate systems of law in the U.S. Most of the criminal law is left up to the states.

The U.S. government’s power is limited to crimes specifically related to national interests, such as crimes committed on military bases and other national property; crimes against federal officers; and crimes that are difficult for one state to prosecute.

Incarceration Rates

Although the United States has only 5% of the world’s population, it has almost 25% of the world’s prisoners. The U.S. locks people up for more crimes and for longer sentences than many other countries. Gender, age, race, and ethnicity are not equally represented in the prisoner population.

· Incarceration rates do not tell us everything we need to know such as what punishment means, the purpose of punishment, the limits of punishment, and the cultural reality of punishment.

Punishment

Punishment means intentionally inflicting pain or other unpleasant consequences on another person. In order for punishment to be criminal punishment it must meet four criteria:

1. it must inflict pain or other unpleasant consequences

2. be prescribed in the same law that defines the crime

3. be administered intentionally

4. be administered by the state.

The purpose of criminal punishment is explained by several rationales.

Retribution inflicts on offenders physical and psychological pain so that offenders can pay for their crimes.

· Prevention, in the form of general and special deterrence, argues that punishment is only a means to a greater good, usually the prevention or at least the reduction of future crime.

· Retribution requires culpability. Only someone who intends to harm her victim deserves punishment; accidents don’t qualify.

· Incapacitation prevents convicted criminals from committing future crimes by locking them up, by altering them surgically, or executing them. Rehabilitation aims to prevent future crimes by changing individual offenders so they’ll want to play by the rules and won’t commit any more crimes in the future.

Historically, societies have justified punishment on the grounds of retribution, deterrence, incapacitation, and rehabilitation. The importance of these grounds for punishment has shifted over time.

Retribution and rehabilitation have been an important part of criminal law since at least the year 1200. Based on the different purposes of punishment different sentencing schemes were used: indeterminate for rehabilitation and determinate for retribution.

Presumption of Innocence

Under our legal system, criminal defendants enjoy the presumption of innocence, which practically speaking means that the prosecution has the burden of proof when it comes to proving the criminal act and intent.

The government has the burden of proving beyond a reasonable doubt that a person is guilty of a crime. There are two types of affirmative defenses: justification and excuse. These defenses are called affirmative because the defense has the burden of production and the burden of persuasion.

Discretion

Criminal law in the U.S. cannot be fully understood without understanding informal discretionary decision making. This is the invisible decision making based on daily judgments of professionals at each step in the criminal justice process. Informal discretionary decision making is needed to soften the rigidity of written rules.

Text-Case Method

Your textbook uses the text-case method. It includes explanatory text and excerpts from court cases/opinions. The text part of the book explains the general principles of criminal law and the definitions of specific crimes. The case excerpts involve real-life crimes that apply the general information in the text to real-life situations. A few technical terms are important to understanding cases.

· A not guilty verdict doesn’t mean innocent; it means the government didn’t prove its case beyond a reasonable doubt. Think of “not guilty” as “not legally guilty.”

· A guilty verdict doesn’t mean not innocent; it means the government proved its case beyond a reasonable doubt. Cases are tried in trial courts and appeals are heard in appellate courts. The cases we read come from appellate courts.

There are seven main parts of each case:

(1) title

(2) citation

(3) procedural history

(4) judge

(5) facts

(6) judgment (decision)

(7) opinion

There are several different types of case opinions, these include majority opinions, dissenting opinions, concurring opinions, and plurality opinions. To get the most from reading cases you should brief a case.

· Briefing a case includes writing down the answers to the following questions: what are the facts?; what is the legal issue in the case?; what are the arguments in the court’s opinion?; and state the court’s decision.

It is important to be able to find court cases and opinions. The case citation consists of the numbers, letters, and punctuation that follow the title of a case in the excerpts or in the bibliography at the end of the book.

· An example of a citation would be State v. Metzger, 319 N.W. 2d 459 (Neb. 1982). The names of the parties are given first. The first number (319) is the volume number. The abbreviation (N.W. 2d) is the set of books or reporters. The second number (459) is the page in that volume where that opinion begins. Finally, the last number (1982) is the date the opinion was handed down.

Chapter 2

Constitutional Limits on Criminal Law

The Principal of Legality

The principle of legality states that no one can be convicted of, or punished for, a crime unless the law defined the crime and prescribed the punishment before she engaged in the behavior that was defined as a crime.

It’s called “the first principle of criminal law” (Packer 1968, 79); all other principles in this book are subordinate to it. It applies even when following it allows morally blameworthy, dangerous people to go free without punishment (Dressler 2001, 39).

The case of Treva Hughes (Hughes v. State 1994) is an excellent example. Hughes, while driving drunk, ran into Reesa Poole’s car and killed Poole’s fetus, which Poole was due to deliver in four days. The Appeals Court reversed her conviction because the law didn’t give Hughes fair warning that it included the unborn in its homicide statute (731).

Why is a retroactive criminal law so abhorrent? Because retroactive criminal laws undermine the “central values” of free societies (Allen 1993, 15).

· First, knowing what the law commands provides individuals with the opportunity to obey the law and avoid punishment.

· Second, providing individuals with this opportunity promotes the value of human autonomy and dignity.

· Third, the ban on retroactive criminal law making also prevents officials from punishing conduct they think is wrong but which no existing criminal law prohibits.

The Ban on Ex Post Facto Laws

Constitutional Status. Article I, Section 9 bans the U.S. Congress from enacting such laws; Article 1, Section 10 bans state legislatures from passing them. And, most state constitutions include their own ban on retroactive statutes (LaFave 2003b, 1:153).

Ex post facto law does one of three things:

1. It criminalizes an act that was not a crime when it was committed;

2. it increases a punishment for a crime after the crime was committed;

3. or it takes away a defense that was available to a defendant when the crime was committed.

Statutes that criminalize an act after it was committed are the clearest example of ex post facto law, but are also the rarest today because legislatures never try to make them crimes. The ex post facto ban has two major purposes.

1. One is to protect private individuals by ensuring that legislatures give them fair warning about what’s criminal and that they can rely on that requirement.

2. The second purpose is directed at preventing legislators from passing arbitrary and vindictive laws.

The Void-for-Vagueness Doctrine

A law is void-for-vagueness if it forbids conduct and prescribes punishments in terms so uncertain that ordinary people can’t intelligently choose in advance the course it’s lawful for them to pursue (State v. Metzger 1982, 461).

The U.S. Supreme Court has ruled that vague laws violate the guarantees of two provisions in the U.S. Constitution. The Fifth Amendment to the U.S. Constitution guarantees that the federal government shall not deny any individual life, liberty, or property without due process of law.

The Fourteenth Amendment provides that no state government shall deny any person life, liberty, or property without due process of law. The reasoning behind the void-for-vagueness doctrine goes like this:

1. The Fifth and Fourteenth Amendments to the U.S. Constitution ban both federal and state governments from taking any person’s “life, liberty, or property without due process of law.”

2. Criminal punishment deprives individuals of life (capital punishment), liberty (imprisonment), or property (fines).

3. Failure to warn private persons of what the law forbids and/or allowing officials the chance to define arbitrarily what the law forbids denies individuals their life, liberty, and/or property without due process of law.

The Aims of the Void-for-Vagueness Doctrine

The void-for-vagueness doctrine takes aim at two evils similar to those of the ban on ex post facto. First, void laws fail to give fair warning to private individuals as to what the law prohibits. Second, they allow arbitrary and discriminatory law enforcement. See Lanzetta v. New Jersey (1939).

Fair notice in ex post facto laws is not than an actual defendant knows there’s a law against the act, but that an ordinary, reasonable person would know that the act is a crime.

· Whether the emphasis is on notice to individuals or control of officials, the void-for-vagueness doctrine can never cure the uncertainty in all laws.

It’s not just the natural uncertainty of words that creates problems. It’s also because the variety of human behavior and the limits of human imagination make it impossible to predict all the variations that might arise under the statutes.

So courts allow considerable leeway in the degree of certainty required to pass the two prongs of fair warning and avoidance of arbitrary law enforcement. Furthermore, challengers face a strong presumption that statutes constitutional.

In State v. Metzger (1982), the Nebraska Supreme Court held that a Lincoln, Nebraska, city ordinance that made it a crime to “commit any indecent, immodest, or filthy act” was void-for-vagueness.

Equal Protection of the Laws

In addition to the due process guarantee, the Fourteenth Amendment to the U.S. Constitution commands that “no state shall deny to any person within its jurisdiction the equal protection of the laws.”

· Equal protection is far more frequently an issue in criminal procedure than it is in criminal law.

There is a constitutional command that criminal laws can treat groups of people and types of conduct differently only if the different treatment is reasonable. Equal protection of the law doesn’t require the government to treat everybody exactly alike.

Rather, equal protection of the law is a constitutional command that criminal laws can treat groups of people and types of conduct differently only if the different treatment is reasonable.

The Bill of Rigths and the Criminal Law

“Congress shall make no law abridging the freedom of speech,” the First Amendment commands.

The U.S. Supreme Court has expanded the ban beyond this already sweeping scope.

· First, the Court has expanded the meaning of “speech” by holding that the protection of the amendment “does not end with the spoken or written word” (Texas v.Johnson 1989, 404).

· It also includes expressive conduct, meaning actions that communicate ideas and feelings. The Court has applied the prohibition to the states since 1925 (Gitlow v. New York) The Court has ruled that free speech is a fundamental right, one that enjoys preferred status.

According to the U.S. Supreme Court, there are five categories of expression not protected by the First Amendment:

1. Obscenity

2. Profanity

3. Libel and slander

4. Fighting words

5. Clear and present danger

The First Amendment doesn’t protect these forms of expression because they’re not an “essential element of any exposition of ideas, and are of such slight value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (Gitlow v. New York 1925, 572).

These exceptions create the opportunity for the government to make these kinds of expression a crime, depending on the manner, time, and place of expression.

The void-for-overbreadth doctrine protects speech guaranteed by the first amendment by invalidating laws so broadly written that the fear of prosecution creates a “chilling effect” that discourages people from exercising that freedom. See R.A.V. v. City of St. Paul (1992) and People v. Rokicki (Ill.App. 1999).

In District of Columbia v. Heller (2008) the Court stated that the core of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” (2821).

The decision applied only to D.C. and the Court identified other situations which the decision would not apply to such as:

· carrying concealed weapons

· felons possessing firearms

· mentally ill possessing firearms

· carrying weapons in sensitive places such as schools and government buildings

· imposing conditions on the commercial sale of arms

Heller is an important decision for at least three reasons.

· First, it renders the clause “a well-regulated militia” irrelevant.

· Second, it doesn’t rule out expanding the right beyond the narrow boundaries of Heller and McDonald.

· Third, it’s a litigation magnet because the Court didn’t provide an exhaustive analysis of the scope of the Second Amendment.

So far, decisions regarding the right to bear arms have been left up to the lower federal courts and the state courts. See example case GeorgiaCarry.Org, Inc. v. Georgia.

While the right to privacy is not specifically included in the U.S. Constitution, the U.S. Supreme Court has decided there is a constitutional right to privacy, a right that bans “all governmental invasions of the sanctity of a man’s home and the privacies of life” (Griswold v. Connecticut 1965, 484).

· Not only is privacy a constitutional right, it’s a fundamental right that requires the government to prove that a compelling interest justifies invading it.

According to the Court (Griswold v. Connecticut 1965), the fundamental right to privacy originates in six amendments to the U.S. Constitution: the First Amendment; the Third Amendment; the Fourth Amendment; the Ninth Amendment and the Fifth and Fourteenth Amendments.

This cluster of amendments sends the implied but strong message that we have the right to be left alone by the government. See case examples in Table “The U.S. Supreme Court and the Right to Privacy from Griswold to Lawrence.”

The Constitution and Criminal Sentencing

The Eighth Amendment to the U.S. Constitution commands that “cruel and unusual punishments” shall not be “inflicted.” According to the Supreme Court there are two kinds of cruel and unusual punishments. “Barbaric Punishments” are punishments that are considered no longer acceptable to civilized society.

· Disproportionate punishments are punishments that are disproportionate to the crime committed. The principle of proportionality states that the punishment should fit the crime.

A majority of the U.S. Supreme Court has consistently agreed that the proportionality principle applies to death penalty cases; as the Court puts it, “death is different.”

There are numerous capital crimes where no one is killed: treason, espionage, kidnapping, aircraft hijacking, large-scale drug trafficking, train wrecking, and perjury that leads to someone’s execution (Liptak 2003).

In practice, no one’s actually sentenced to death for them, so it’s difficult to tell whether the Court would rule that death is disproportionate to a crime where no one gets killed. The one exception to the practice was rape.

In 1977, the Court heard Coker v. Georgia; it decided that death was disproportionate punishment for raping an adult woman. In 2008 the Court ruled that death was disproportionate punishment for raping a child (Kennedy v. Louisiana 2008).

In Atkins v. Virginia (2002), the U.S. Supreme Court ruled that executing anyone who proved the three elements in the AAMR definition applied to them violated the ban on cruel and unusual punishment. In 2005, the Court decided whether standards of decency had evolved enough since 1989 to be offended by executing Christopher Simmons for a carjacking murder he committed when he was 17 (Roper v. Simmons 2005).

By a vote of 5–4, the U.S. Supreme Court held that the Eighth and Fourteenth Amendments forbid the execution of offenders who were under the age of 18 when they committed their crimes. Does the proportionality principle extend to sentencing juveniles to life without parole for juveniles who don’t kill? Over a strong dissent, the U.S. Supreme Court said yes in Graham v. Texas (2010) (6-3).

The consensus that the ban on cruel and unusual punishment includes a proportionality requirement in capital punishment does not extend to prison sentences. The important case of Solem v. Helm (1983) revealed that the U.S. Supreme Court was deeply divided over whether the principle of proportionality applied to sentences of imprisonment. A bare majority of five in the U.S. Supreme Court held that “a criminal sentence must be proportionate to the crime for which the defendant has been convicted” (290).

Three-strikes-laws are intended to make sure that offenders who are convicted of a third felony get locked up for a very long time. Despite controversy, three-strikes laws are popular and widespread.

Twenty-four states have passed three-strikes laws (Shepherd 2002). Three-strikes-laws are popular for three reasons.

1. First, they address the public’s dissatisfaction with the criminal justice system.

2. Second, they promised a simple solution to a complex problem—the “panacea phenomenon.”

3. Third, the use of the catchy phrase “three strikes and you’re out” was appealing (Benekos and Merlo 1995, 3; Turner et al. 1995). We are not sure of their effectiveness but the U.S. Supreme Court has ruled they’re constitutional, even if the justices can’t agree on the reasons.

Mandatory minimum sentencing laws require judges to impose a nondiscretionary minimum amount of prison time that all offenders have to serve. By 1991, 46 states and the federal government had enacted mandatory minimum sentences.

The main targets are drug offenses, violent crimes, and crimes committed with weapons (Wallace 1993). Mandatory minimum sentences are the more rigid form of the broad scheme of fixed (determinate) sentences (Chapter 1). The less extreme form of fixed sentencing is sentencing guidelines. In sentencing guidelines, a commission establishes a narrow range of penalties, and judges are supposed to choose a specific sentence within that range.

The Right to Trial By Jury and Sentencing Laws

Until 2000, the guidelines and mandatory forms of fixed sentencing created only possible cruel and unusual punishment problems. Beyond that, the U.S. Supreme Court took a hands-off approach to sentencing procedures, leaving it up to state legislatures and judges to share sentencing authority and administration without interference from the Court.

Then came Apprendi v. New Jersey (2000), called by two authorities (Dressler and Michaels 2006) “the first in a series of constitutional explosions that have rocked the world of criminal sentencing and caused fundamental alterations” in federal and state sentencing systems (366). (See Table 2.1 for some of the leading cases).

Because the Guidelines are now advisory, appellate review of sentencing decisions is limited to determining whether they are “reasonable” (United States v. Booker, 543 U.S. 220 (2005)), and an abuse-of-discretion standard applies to appellate review of sentencing decisions.

Abuse-of-discretion standard, “failure to exercise sound, reasonable, and legal decision-making; an appellate court’s standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence”