Chapter 11 Notes

MeToo Movement and Its Impact

In 2017, The New York Times released Pulitzer Prize-winning stories about sexual abuse by powerful men, particularly in the entertainment industry.
Bill O'Reilly, despite his popular "no-spin" program, was among the first targets, leading to his termination after settlements for sexual harassment claims surfaced.
Harvey Weinstein was accused of rape and sexual assault by over 80 women, leading to his dismissal from his company and expulsion from the Academy of Motion Picture Arts and Sciences.
Weinstein was eventually charged in New York and found guilty of first-degree criminal sexual assault and third-degree rape in February 2020, receiving a 23-year prison sentence.
The #MeToo movement gained momentum after this, with women sharing stories and advocating for solutions to sexual violence and abuse.
Gloria Allred emphasized the shift in power dynamics, stating that women can no longer be intimidated.
Numerous celebrities, including Bill Cosby, Kevin Spacey, Charlie Rose, and Matt Lauer, faced allegations, leading to terminations and civil litigation.
More than 250 powerful men across various sectors were brought down for sexual impropriety, with nearly half being replaced by women.

History of Punishment

Punishment has evolved significantly, influenced by custom, economic conditions, and religious and political ideals.

Early Greece and Rome

Banishment or exile was the most common punishment.
Slaves were subjected to physical punishment.
Economic punishments, such as fines, were used for crimes like assault, arson, or housebreaking.

Middle Ages (5th to 15th Centuries)

Limited law and governmental control led to blood feuds.
The Roman custom of settling disputes by fines was adopted to minimize bloodshed.

Feudal Period (After the 11th Century)

Forfeiture of land and property became common for violating law or failing feudal obligations.
"Felony" originated from "felonia," referring to a breach of faith with one's feudal lord.
The emphasis was on maintaining public order.
Compensation, known as "wergild," was used to pacify injured parties and prevent blood feuds.
Corporal punishment, such as whipping or branding, substituted fines for those unable to pay.

Development of Common Law (11th Century)

Standardization of penal practices occurred.
Corrections remained a mix of fines and physical punishments.
Wealthy individuals could buy their way out of punishment.
Capital and corporal punishments were used to control the criminal poor.
Execution, banishment, mutilation, branding, and flogging were used on various offenders.
Tortures were gruesome and public, meant to deter, but retribution and spectacle were more significant.

Public Work and Transportation to the Colonies (16th Century)

The rise of cities and overseas colonization created demand for labor, influencing punishment.
Offenders were made to do hard labor instead of being tortured or executed.
"Poor laws" required the poor, vagrants, and vagabonds to work in public or private enterprises.
Houses of correction were developed to assign petty law violators to work details.
Workhouses, like the one in Brideswell, London (1557), became popular.
Convicted offenders were pressed into sea duty as galley slaves.
Authorities transported convicts overseas to address labor shortages in colonies.
England granted reprieves to those convicted of robbery and felonies if they were employed overseas (Order in Council of 1617).
Transportation became popular because it supplied labor, cost little, and was profitable for the government.
The Old Bailey Court in London supplied at least 10,000 convicts between 1717 and 1775.
The American Revolution ended transportation to North America, but it continued in Australia and New Zealand.
Over 135,000 felons were transported to Australia between 1787 and 1875.
Transported prisoners endured hardships, including physical abuse.

Rise of the Prison

Between the American Revolution and the 19th century, populations increased, and transportation to North America ended.
Machinery reduced the need for unskilled laborers.
The gap between the poor and wealthy widened, increasing crime rates and the use of physical punishment and the death penalty.
By the late 18th century, 350 types of crime in England were punishable by death.
Jails and workhouses held petty offenders, vagabonds, the homeless, and debtors.
Abandoned ships were used as prisons.
John Howard's "The State of the Prisons in England and Wales" (1777) led to legislation mandating secure and sanitary structures for prisoners.
By 1820, reformatories or penitentiaries gradually replaced physical punishment.
Incarceration became the primary mode of punishment for serious offenses.
Prison is now supplemented by community supervision for less serious offenders, with the death penalty reserved for the most serious crimes.

Goals of Punishment

Criminal sentences serve various objectives today and can be grouped into six distinct areas: general deterrence, incapacitation, specific deterrence, retribution/just desert, rehabilitation, and equity/restitution.

General Deterrence

Punishing offenders to set an example for others.
Severe punishment deters others from breaking the law and relies on the fear of criminal penalties.
Convincing potential criminals that punishment is certain, swift, and severe.
The punishment must not be disproportionate or unfair; otherwise, it might escalate crimes.
If rape were punished by death, rapists might kill their victims to avoid identification.
Some experts believe that an increase in penalties has led to a decline in crime.
The concept of "expected punishment" is defined as the number of days in prison a typical criminal can expect to serve per crime.
Expected punishment rates are low due to low crime clearance rates, dropped cases, and probationary sentences.
Example:
- For burglary, only one burglar is incarcerated for every 50 reported burglaries.
- Average prison sentence for violent felony offenders is 6.4 years, but the actual time served is about half that.

Incapacitation

Keeping dangerous criminals confined to prevent them from repeating offenses.
A period in a high-security state prison is necessary for close monitoring.
The evidence on whether incapacitation reduces the crime rate is mixed.
Between 1990 and 2014, the prison population doubled, and the crime rate dropped, indicating an incarceration effect.
In periods like 1980-1990, both prison population and crime rate increased.
Population makeup, police effectiveness, drug use, and the economy are also factors.
Incarceration may have a short-term effect, but the prison experience can increase reoffending as inmates may not engage in correctional rehabilitation and are exposed to dangerous offenders, leading to a criminogenic effect.
Incarceration benefits diminish as more people are imprisoned since the crime reduction benefit of locking up each new inmate is less impactful than the prior.

Specific Deterrence

Convincing offenders that the pains of punishment outweigh the benefits of crime.
The experience of suffering punishment should inhibit future law violations.
Some research supports a specific deterrence effect on future criminality, but findings are inconsistent.
Studies on spouse abusers show mixed results.
Data indicates that most released inmates (over 80 percent) have prior convictions, and the majority (68 percent) reoffend soon after release.
Severe punishments may increase, not reduce, reoffending rates.
- Harsh treatment might bring defiance.
- Stigma labels and locks offenders into a criminal career.
- Criminals may believe they are unlikely to be caught twice for the same crime.
High-security “supermax" prisons can also increase reoffending rates.
- Recent study in Washington showed that supermax prisoners had significantly higher felony recidivism rates than those in traditional prisons.
Some judges and policymakers believe that a "taste of the bars" reduces repeat offending.

Retribution/Just Desert

Punishing offenders fairly and justly in proportion to the gravity of their crimes.
Offenders are punished because they deserve it; "the punishment should fit the crime."
Punishment should not be used to set an example or deter; it should only be based on the person’s blameworthiness.
Punishments must be equally and fairly distributed to all who commit similar illegal acts.
There can be little consensus about treatment of criminals, seriousness of crimes, and responses to criminal acts.
Therefore, there’s an ongoing effort to calculate fair and just sentences and apply them equitably.

Rehabilitation

Treating and/or rehabilitating criminal offenders.
Offenders are victims of circumstances like disorganized neighborhoods, biased policing, and disadvantages in education and employment.
The justice system is obligated to help these people instead of simply punishing them.
With proper treatment, an offender will present no further threat to society.
The general public supports treatment over punishment and incarceration.

Diversion

Sparing nondangerous offenders from the stigma and labeling of a criminal conviction.
Judges may divert offenders into community correctional programs for treatment.
Offenders may be asked to make restitution payments or participate in counseling programs.

Equity/Restitution

Requiring criminals to reimburse society for losses caused by their crimes.
Creating equitable solutions to crime; the convicted offender must make restitution to both the victim and the state.
The equity goal of punishment means that convicted criminals must pay back their victims for their loss and reimburse the justice system and society for any disruption caused, as well as cover fines, forfeiture of property, community service, make financial restitution, and reimburse the state for the costs of the criminal process. Since criminals actions expanded their rights, they must lose rights to restore the social balance.
Social costs might include drug enforcement, drug treatment centers, and care for infants born to drug-addicted mothers. In predatory crimes, costs could include emergency department services, lost workdays and productivity, and treatment for psychological problems.

Restoration

Asking defendants to confront their behavior and the damage they caused.
A restoration sentence might require that the convicted recognize injury to personal and social relations, accept responsibility accompanied by a statement of remorse.
Aims to turn the justice system into a "healing" process.
Techniques used are programs that encourage reconciling conflicts between offenders and victims, victim advocacy, and sentencing circles, in which crime victims and their families are brought together with offenders and their families.
The goal is to enable offenders to appreciate and make amends for the damage caused, and be reintegrated into society.

Imposing the Sentence

Sentencing is based on information available to the judge, except where the law provides mandatory prison terms.
Some jurisdictions allow victim s to make impact statements.
Most judges consider a presentence investigation report by the probation department.

Concurrent vs. Consecutive Sentences

Concurrent: Sentences begin the same day and finish when the longest term is served.
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Consecutive: Sentences are served one after the other.
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Concurrent sentences are the norm; consecutive sentences are for the most serious criminals.

Effect of "Good Time"

Time spent in prison is reduced by "time off for good behavior."
Used in New York (1817) and adopted by most jurisdictions.
State inmates can accrue 10-15 days per month.
Federal inmates can get almost 50 days taken off per year.
Correctional authorities grant earned sentence reductions for treatment programs or experimental medical testing.
More than half a determinate sentence can be erased by good time.

Sentencing Models

Determined by jurisdiction statutes.
- Includes indeterminate sentences, determinate sentences, and mandatory sentences.

Indeterminate Sentences

Called for by prison reformers in the 1870’s
Offenders should stay confined until rehabilitated, not until "the punishment should fit the crime"
The most widely used type.
Convicted offenders get a "light" minimum sentence that must be served and a lengthy maximum sentence; the actual length is controlled by both the judge and the correctional agency.
Actual length of time served is controlled by both the judge and correctional agency.
Example:
- Legislature sets sentencing of 2-20 years for burglary so the offender must be sentences to between those times. The judge can set it to 5-15.
Minimum sentence is typically 1 year (some require a minimum of 2 years to felons).

Determinate Sentences

Offered a fixed term of years to be served by the offender sentenced to prison for a particular crime.
- A judge might sentence a repeat offender to 15-year term, and a less-experienced felon might receive 5 years if a robbery law gave a sentence of up to 20 years, for example.
  Sentencing guidelines have been implemented by these states and the federal government to structure and control the sentencing process by making it more rational.
Guideline creation occurs with Prior record and current offense as coordinates and includes the set out and specific punishments.

Legal Challenges and Their Impact

Several Supreme Court cases have changed how guidelines can be used.
- Apprendi v. New Jersey:
  - Any factor other than a prior conviction that increases the penalty for the crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
- Blakely v. Washington:
  - State of Washington’s sentencing guidelines were violation of defendant’s Sixth Amendment rights because they allowed a judge to consider aggravating factors that would extend the sentence.
- United States v. Booker:
  - The federal guidelines were unconstitutional; Judges should consider the guideline ranges but must also be permitted to alter sentences in consideration of other factors.

Mandatory Sentences

Limit judicial discretion and are tough on crime.
Prohibit people convicted of certain offenses from being placed on probation.
Impose minimum and maximum terms and require a fixed prison sentence.

Three-Strikes Laws

Provide lengthy terms for any person convicted of three felony offenses, even if the third crime is relatively trivial.

Truth in Sentencing

Requires offenders to serve a substantial portion of their prison sentence behind bars.
Mandates the abolishment of parole eligibility and restricts good-time credits.

How People Are Sentenced

Surveys on sentencing practice conducted by the federal government.
Average felony sentence for serious offenses is 6.4 years and broken down by offenders.

Social Class

Lower class members may expect to get longer prison sentences than more affluent defendants because they cannot afford quality legal representation or make fair bail. This can be more robust for certain crime patterns than others.

Gender

Some theorists believe that women benefit from sentence disparity, because the criminal justice system is dominated by men who have a paternalistic, or protective, attitude toward women.
- Women are granted lenient pretrial release conditions, they are more likely to spend less time incarcerated, and courts and police officers are likely to be more lenient.