Chp 11 - Court Methods and Challenges: Sentencing and Punishment

George Bernard Shaw Quote

If you are going to punish a man retributively, you must harm him. If you are going to reform him, you must improve him. Men are not improved by injury

Four Goals of Correction/ Punishment

Retribution

Deterrence

Incapacitation

Rehabilitation

Retribution

payback

revenge

harsh punishments

punishment fits the crime

Deterrence

preventing crime

Two types:

General

Specific

General Deterrence

others are prevented from committing the crime

Specific Deterrence

applies to that individual

that individual is prevented from committing the same crime

relies on classical school of criminology’s thought that crime is rational and defendants choose to commit crime after weighing the pros and cons

Incapacitation

defendant is physically unable to commit crime

Ex: Incarceration, electronic monitoring, house arrest

Rehabilitation

meant to improve the defendant

EX: substance abuse treatment

education

vocational skills

successfully integrate into society

Factors that Affect Punishment

1) Financial and/ or Social Benefit or Cost

2) Victim’s Wishes

3) Victim Impact Statements

4) Eighth Amendment

5) Influence of Prosecutor and Defense Attorney

6) Seriousness of Offense Itself

7) Defendant’s Prior Record

Financial and/ or Social Benefit or Cost

national average to incarcerate 1 person for 1 year is $35,000

Victim’s Wishes

DOESNT mean they always get what they want, but prosecutor will take it into consideration

Victim Impact Statement

aggravating (makes it more serious) and mitigating (makes it less serious) circumstances

Eighth Amendment

Cruel and Unusual Punishment Protection Amendment

Seriousness of Offense Itself

Most Important Factor

Defendant’s Prior Record

Habitual Offender laws

If you commit a 3rd offense then by law, your sentence will be longer

Models or Eras of Punishment

1) Colonial Model (1600s-1790s)

2) Penitentiary Model (1790s - 1870s)

3) Reformatory Model (1870s - 1890s)

4) Progressive Model (1890s - 1930s)

5) Medical Model (1930s - 1960s)

6) Community Model (1960s - 1970s)

7) Crime Control Model (1970s - Present)

Colonial Model (1600s - 1790s)

characterized by harsh punishments

Puritans who zealously prosecuted what they believed were violations of religious doctrine/ law

(Ex: Salem Witch Trials - Executions, Banishment from Community)

Penitentiary Model (1790s - 1870s)

Quakers believed social isolation of offenders would lead to remorse or penitence

First American Penitentiary Opens

First American Penitentiary

Walnut Street Jail in Philadelphia in 1790

Reformatory Model (1870s - 1890s)

moved away from social isolation of Penitentiary Model

Believed that isolation was detrimental to offenders

Focused on rehabilitation of Defendant

Rise of Indeterminate Sentences

Progressive Model (1890s - 1930s)

crime was a result of social conditions

not an individual problem

to reduce crime, social change was needed

underlying conditions that cause crime must be addressed

probation was launched as an alternative to incarceration

Medical Model (1930s - 1960s)

believed that criminals are inherently different than non-criminals

criminals have some kind of biological, sociological, or psychological deficiency

to reduce crime, must treat deficiency

Community Model (1960s - 1970s)

community reintegration was the focus

prisons were seen as artificial institutions that did not help defendant BUT perpetuating crime

would only send most serious offense to prison

try to keep lesser offenses in the community

even serious offender CAN be rehabilitated and be returned to the community

Crime Control Model (1970s - Present)

Focus on harsher punishment

Rise in habitual offender laws

Determinate sentencing

Types of Sentences

Determinate

Indeterminate

Concurrent

Consecutive

Determinate

fixed amount of time with no possibility of parole (ex: 5 yrs)

Indeterminate

range with a minimum and maximum (Ex: 5-10 yrs)

Must serve minimum, then you may become eligible for parole

Concurrent

sentences will run at the same time

whatever longest sentence is is how much time needs to be served

(ex: 3 counts of possession; one count is 2 yrs, 2nd is 5 yrs, third is 10yrs; you only serve 10 years instead of 17)

Consecutive

each sentence runs after previous sentence

serve all of count 1, then all of count 2, and so on…

add ALL sentences together to get time served

Federal Sentencing Guidelines

only uses determinate sentencing structure

Sentencing Reform Act

Sentencing Reform Act

goal: to ensure that defendants who commit similar crimes receive a similar sentence

Reforms

Rehabilitation was dropped as a goal of punishment

Created US Sentencing Commission

ALL sentences are determinate and NO POSSIBILITY of Parole

Authorized Appellate review of sentences - no review of conviction

US Sentencing Commission

tasked with created federal sentencing guidelines

Victim Impact Statements in Detail

given by victim at sentencing NOT at trial but after guilty verdict

______ can discuss how crime has affected them

Restrictions

Restrictions to Victim Impact Statements

CANNOT offer opinions about Defendant

CANNOT include sentencing recommendations

CANNOT offer opinions about crime

Usually victims HAVE to be the one who gives the statement, but there are EXCEPTIONS

Physical or Mental Disability

Victim is deceased

Victim is a Minor - Parent can Speak on Their Behalf

Depending on Jurisdiction, Statements may be given orally, written (read by victim or judge, or allow for a prerecorded audio and/or visual statement

Opposition to Victim Statements

Challenged on grounds that they give too much power to the state to enact harsh punishment

Supreme Court has upheld victim impact statements

Arguments FOR Capital Punishment

Defendant Deserved It - Crime was Cruel

Defendant is TOO DANGEROUS or VIOLENT for any other punishment

Is a good, SPECIFIC deterrent for that Defendant

Arguments AGAINST Capital Punishment

Too Cruel

Possibility of Killing the Wrong/Innocent Person

Human Life

More expensive to Offer __________

Not good, General Deterrent 

Discriminatory - African Americans

As of 2021, how many states have abolished the death penalty 

23

Supreme Court Decisions on Capital Punishment/ Death Penalty

Furman v Georgia (1972)

Gregg v Georgia (1976)

Roper v Simmons (2005)

Furman v Georgia (1972)

First time that Supreme Court ruled that the death penalty is unconstitutional - Vote 5 to 4

Gregg v Georgia (1976)

death penalty DIDNT violate 8th amendment, and is allowable

aggravating and mitigating circumstances must be taken into account

Two Requirements for Death Penalty under this Case

Vote 7 to 2

Two Requirements for Death Penalty under Gregg v Georgia 

MUST have at least ONE aggravating factor/circumstance and it must be beyond a reasonable doubt 

Aggravating Circumstances MUST OUTWEIGH Mitigating Circumstances beyond a reasonable doubt

Roper v Simmons (2005)

Supreme Court ruled that anyone under 18 AT THE TIME OF THE CRIME CANNOT receive the death penalty

Things to Know About Death Penalty

Mentally Incompetent CANNOT receive death penalty

Victim MUST DIE for Defendant to receive death penalty (Except for Crimes against the Govt i.e. Treason and Espionage)

Opposition to Death penalty CANNOT Automatically disqualify you from Jury