Unit 7Sentencing, Trial, Pre-Trial

Professor Jennifer WillsAdapted from Criminal Justice Today

By Frank Schmalleger

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Sentencing

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Sentencing—the imposition of a criminal sanction by a judicial authority.

Most sentencing decisions aremade by a judge, though in somecases, especially death-eligiblecases, juries are involved.

Traditional Sentencing Options

Imprisonment Fines Probation Death

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Sentencing Philosophies

• Sentencing philosophies Form the basis for various sentencing – strategies. Are intertwined with issues of religion, – morals, values, and emotions.

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Goals of Sentencing

What are the goals of sentencing?

Goals of Sentencing

1) Retribution

2) Incapacitation

3) Deterrence

4) Rehabilitation

5) Restoration

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Five goals influence modern sentencing practices:

Retribution

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… the act of taking revenge on a perpetrator.

Early punishments were swift and immediate. Death and exile were common punishments. Retribution follows the Old Testament: “Eye for an eye.” Retribution holds offenders personally responsible; they get their “just deserts.”

Incapacitation

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…the use of imprisonment, or other means, to reduce the likelihood that an offender will be capable of committing future offenses.

In ancient times, mutilation and amputation were used to incapacitate. Incapacitation requires restraint, not punishment. It is popular in the U.S., as evidenced by the increase in prison populations. (Some call this the “lock ‘em up” approach).

Deterrence

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… a goal of criminal sentencing that seeks to inhibit criminal behavior through fear of punishment.

It demonstrates that crime is not worthwhile. Overall goal is crime prevention. There are two types of deterrence:

• Specific• General

What is the goal of specific deterrence

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What are the goals of general deterrence

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Deterrence

•Specific Deterrence•Seeks to prevent recidivism—repeat offending by convicted offenders.

•General Deterrence •Tries to influence the behavior of those who have not yet committed a crime yet may be tempted to.

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Rehabilitation

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… the attempt to reduce the number of crimes by changing the behavior of offenders.

Education, training, and counseling are some of the vehicles used. The ultimate goal is to reduce the number of offenses.

Restoration

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… a goal of criminal sentencing that attempts to make the victim “whole again.”

Crime is a violation of a person as well as the state. Restorative justice addresses the needs of the victim. Sentencing options focus primarily on restitution payments.

Sentencing

Different sentencing practices have beenlinked to each of the goals of sentencing.

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Two models:

Indeterminate Determinate

What is indeterminate sentencing?

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Indeterminate Sentencing

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… A model of criminal punishment that encourages rehabilitation via the use of general and relatively unspecific sentences.

Indeterminate Sentencing

Indeterminate sentencing allows judges to have a wide range of discretion.

Sentences are often given in a range, i.e., “ten to twenty years.”

Probation and parole are options. Degrees of guilt can be taken into

account.18

Indeterminate Sentencing

The behavior of the offender during incarceration is the main determining factor in release decisions.

A few states employ a partially indeterminate sentencing model.

Judge sets maximum time. Minimum set by law.

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What is structured sentencing?

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Structured Sentencing

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Structured sentencing developed, in part, as a response to the disparity in sentencing of the indeterminate model.

Structured sentencing includes: Determinate sentencing Voluntary/advisory sentencing guidelines Commission-created presumptive sentencing

Determinate Sentencing

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… A model of criminal punishment in which an offender is given a fixed term that may be reduced by good time or earned time. Under the model, for example, all offenders convicted of the same degree of burglary would be sentenced to the same length of time behind bars.

Determinate Sentencing

• Offender is given a fixed sentence length.The sentence can be reduced by “good time.”The use of parole is eliminated.

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Voluntary/Advisory Sentencing Guidelines

Recommended sentencing policies that are not required by law but serve as guides for judges.

“Sentences” are based on past practices.

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Commission Based Presumptive Sentencing

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… model of punishment that meets the following conditions:

1. Proper sentence is presumed to fall within the range authorized by sentencing guidelines.

2. If judges deviate from guidelines, they must provide written justifications.

3. Sentencing guidelines provide for some review, usually by an appellate court.

Presumptive Sentencing Guidelines

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The federal government and 16 states now employ sentencing guidelines.

Guideline jurisdictions generally allow judges to take into account aggravating and mitigating circumstances.

What are some examples of Aggravating and Mitigating

Factors.

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© 2009 Pearson Education, Inc by Dr. Frank Schmalleger

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Aggravating and Mitigating Factors

•AggravatingCircumstances relating to the commission of a crime that make it more grave than the average instance of that crime.

Call for a tougher sentence.

•Mitigating Circumstances relating to the commission of a crime that may be considered to reduce the blameworthiness of the defendant.

Call for a lesser sentence.

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Federal Sentencing Guidelines

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The Comprehensive Crime Control Act of 1984 established presumptive sentencing for federal offenders and addressed truth in sentencing.

Truth in Sentencing

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… a close correspondence between the sentence imposed upon an offender and the actual time served prior to release from prison.

…an important policy focus.

Federal Sentencing Guidelines

The U.S. Sentencing Commission

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Established under Sentencing Reform Act of 1984 and took effect in November 1987. 9 member commission set minimum sentences for certain federal offenses commission meets yearly to review guidelines.

Federal Sentencing Guidelines

Purpose of the Guidelines is to:

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Limit federal judges’ discretion Reduce disparity Promote consistency and uniformity Increase fairness and equity

Federal Guideline Provisions

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Guidelines specify a sentencing range from which judges must choose. Judges may depart from the guidelines in “atypical” cases. Aggravating and mitigating circumstances are taken into consideration. Guidelines are presented in a matrix-like sentencing table.

Overlapping levels Criminal history and offense level determine sentence

Career Offender

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The career offender receives harsher sentences.

… requires a defendant to: Be at least 18 at time of offense Commit a crime of violence or to traffic in a controlled substance Have at least two prior felony convictions for crimes of violence or trafficking

Deal v. U.S. (1993)

An offender may be adjudged, and sentenced as, a career criminal in a single hearing.

“We see no reason why the defendant should not receive such a sentence, simply because he managed to evade detection, prosecution, and conviction for the first five offenses and was ultimately tried on all six in a single proceeding.”

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Plea Bargaining Under the Guidelines

Of all federal cases, 90% are the result ofguilty pleas, of which the vast majorityare the result of plea negotiations.

Melendez v. U. S. (1996)—judges cannot accept plea bargains that would have resulted in sentences lower than the minimum required by law for a particular type of offense.

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The Legal Environment of Structured Sentencing

U.S. v. Booker (2005) and U.S. v. Fanfan (2005)examined the constitutionality of federalsentencing practices. Two issues were addressed:

1. Whether fact-finding done by judges under federal sentencing guidelines violates the Sixth Amendment’s right to a jury trial, and

2. If so, whether the guidelines are themselves unconstitutional.

The Court found that:1. In Booker, the sentence had been improperly enhanced

on the basis of facts found solely by a judge. 2. The guidelines themselves are not unconstitutional,

provided that they are no longer mandatory.

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Mandatory Sentencing

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Mandatory sentences are a form of structured sentencing that allows NO leeway in the sentence required for a crime.

Takes away judicial discretion Results in less plea-bargaining and more trials. Have led officials to make earlier and more selective arrest, charging, and diversion decisions.

Three Strikes Laws

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Some states have “Three Strikes Laws,” which require mandatory sentences (sometimes life without parole) when convicted of third serious felony.

The intent is to deter known and potentially violent offenders and to incapacitate repeat criminals for long periods of time.

States that have 3 strikes laws

• Arkansas 1995 California 1994 Colorado 1994 Connecticut 1994 Florida 1995 Georgia 1994 Indiana 1994 Kansas 1994 Louisiana 1994 Maryland 1994 Montana 1995 Nevada 1995 New Jersey 1995 New Mexico 1994 North Carolina 1994 North Dakota 1995 Pennsylvania 1995 South Carolina 1995 Tennesee 1994 Utah 1995 Vermont 1995 Virginia 1994 Washington 1993 Wisconsin 1994

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© 2009 Pearson Education, Inc by Dr. Frank Schmalleger

Pearson Prentice Hall

Upper Saddle River, NJ 07458

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Innovations in Sentencing

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Some judges are paying closer attention to alternative sentencing strategies.

Judges in certain jurisdictions have begun to use the wide discretion in sentencing available to them and impose truly unique sentences, many of which involve shaming.

Presentence Investigation (PSI) Report

• PSI Reports provide judges with • the backgrounds on convicted• defendants awaiting sentencing.

Typically, prepared by probation or– parole officers. Include a sentencing recommendation.

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Remembering the Victim

A grassroots movement began in the 1970s. Today, victims’ assistance programs help victims

understand the system and their rights, get counseling, file civil suits, and recoup financiallosses.

Victim rights advocates want to add an amendment to the U.S. Constitution. 30 states have amended their constitutions.

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Victim Compensation

Restorative justice programs provide the basis for victim compensation funds.

States have legislation providing monetary payments to help certain victims.

The USA PATRIOT Act provides compensation for victims of terrorism and their families.

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Crime Victims’ Rights ActThe Crime Victims’ Rights Act is part of the Justice For All Act of 2004. It grants victims of federal crimes the right to:

1. Be reasonably protected from the accused.2. Reasonable, accurate, and timely notice of any public proceeding

involving the crime, or any release or escape of the accused.3. Be included in any such public proceeding. 4. Be reasonably heard at any public proceeding involving release,

plea, or sentencing. 5. Confer with the federal prosecutor handling the case.6. Full and timely restitution as provided by law.7. Proceeding free from unreasonable delay.8. Be treated with fairness and with respect for the victim’s dignity

and privacy.

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Victim Impact Statements

The victims’ rights movement also calledfor the use of victim impact statementsbefore sentencing. These statements:

Are generally in written form. Provide descriptions of losses, suffering, and trauma experienced by victims or their survivors. Are designed to help judges make sentencing decisions.

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Sentencing

Sentencing is essentially a risk managementstrategy designed to protect the publicwhile serving the ends of retribution,incapacitation, deterrence, rehabilitation,and restoration.

Just as the goals of sentencing vary, so dothe types of sentences. Different goalsmandate different sentences.

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Traditional Sanctions

There are four traditional sanctions:1. Fines2. Probation3. Imprisonment4. Death

A judge’s discretion to choose the sanctiontype varies depending on the structure ofsentencing used within that particularjurisdiction.

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Sentencing Options: Imprisonment

Bureau of Justice Statistics (2004) reports:

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In 2002, there were 1,051,000 people convicted of felonies in state courts and 63,217 in federal courts.

41% received active prison terms, with an average length of 4.5 yrs. 28% received jail sentences with an average length of 7 months. 31% were given straight probation, with an average sentence of 38 months. 25% were ordered to pay a fine.

Court-ordered Prison Commitments, 1960-2002

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Bureau of Justice Statistics, 2004

Fines

Fines are one of the oldest forms ofsentencing.

Fines may be used alone or in combinationwith another penalty.

More than $1 billion in fines are collectednationwide each year.

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Fines

•Arguments For Fill state coffers Lower tax burden Deny criminals the• proceeds of their • criminal activity. Inexpensive to • implement. Can be made • proportionate to the • severity of the offense.

•Arguments Against Too mild of a • punishment. Offenders often serve no • time. Discriminate against the • poor. Can be difficult to • collect.

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The Death Penalty

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Capital punishment means the death penalty. It is the most extreme of all possible sanctions and is reserved only for especially repugnant crimes (known as capital offenses).

The Extent of Death Penalty Statutes

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Capital punishment is a sentencing option is 38 states and the federal government.

States vary considerably with regard to the number of death sentences given and the number of executions.

Court-Ordered Executions Carried Out in the United States, 1930-2005

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Source: Bureau of Justice Statistics, 2006

States that have the Death Penalty• Alabama

ArizonaArkansasCaliforniaColoradoConnecticutDelawareFloridaGeorgiaIdahoIndianaIllinoisKansasKentuckyLouisianaMarylandMississippiMissouriMontana

• NebraskaNevadaNew HampshireNorth CarolinaOhioOklahomaOregon PennsylvaniaSouth CarolinaSouth DakotaTennesseeTexasUtahVirginiaWashingtonWyoming

• US Federal Government and Military

Deathpenaltyinfo.org

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Offenders on Death Row

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On July 1, 2009, there were 3,279 people on death row in the U.S.

98% male 44.4% white 11.6% Hispanic 41.6% African American 2.4% were of other races (mostly Native American and Pacific Islander)

Methods of Execution

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Methods of imposing death vary by state.

Most use legal injection

Habeas Corpus Review

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Today, the average time before execution is 10 years and 8 months. Most of the delay is due to appeals.

All death penalty cases get one automatic appeal. Beyond that, inmates can receive more appeal by filing writs of habeas corpus,

an order directing anyone holding a prisoner to bring him before a judicial officer to determine the lawfulness of the imprisonment.

Abolitionist and Retentionist Positions on Capital Punishment

•Arguments for Retention Revenge—Only after • execution can survivors • begin to heal• psychologically Just desserts—Some • people deserve to die for • what they did Protection—Once • executed, the person • cannot commit another • crime

•Arguments for Abolition Has been used on • innocent people and may • be again Not an effective deterrent Imposition is arbitrary and discriminatory Far too expensive Reduces society to the level of the criminal

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The Death Penalty and Innocence

Claims of innocence are being partially addressed by recently passed state laws that mandate DNA testing of all death row inmates in situations where DNA might help establish guilt or innocence.

The Innocence Protection Act (2004) provides federal funds to help analyze DNA at crime labs throughout the country.

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The Death Penalty and DNA

The Death Penalty Information Center claims that 124 people in 25 states were freed from death row between 1973 and 2007 after it was determined that they were innocent.

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The Death Penalty and Mental Capacity

Although people with very low IQ’s may not be executed, serious mental illness is not a bar to execution unless it affects the condemned inmate’s mind such that he doesn’t know why he’s on death row or doesn’t understand the punishment.

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The Future of the Death Penalty

There is little common ground between death penalty advocates & opponents.

The future of the death penalty likely rests with state legislatures.

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Unit 8Probation and Community

Corrections We will cover in Unit 8:The differences between probation and parole.The legal environment of the probation and

parole systems. The role of probation and parole officers. The current use and likely future of probation

and parole

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