crj ch 11

Here is a summary of the key terms and concepts in this chapter about sentencing. 

Sentencing  The imposition of a criminal sanction by a judicial authority. 

     II.  The Philosophy and Goals of Criminal Sentencing 

             A.  Retribution 

Retribution  The act of taking revenge upon a criminal perpetrator. 

                       •  Corresponds to the just deserts model of sentencing

Just Deserts  A model of criminal sentencing that holds that criminal offenders deserve the punishment they receive at the hands of the law and that punishments should be appropriate to the type and severity of the crime committed. 

                       •  The primary sentencing tools of the just deserts model are prison and death.

             B.  Incapacitation 

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

                       •  The “lock ’em up” approach

             C.  Deterrence 

Deterrence  A goal of criminal sentencing that seeks to inhibit criminal behavior through the fear of punishment.

Specific Deterrence  A goal of criminal sentencing that seeks to prevent a particular offender from engaging in repeat criminality. 

General Deterrence  A goal of criminal sentencing that seeks to prevent others from committing crimes similar to the one for which a particular offender is being sentenced by making an example of the person sentenced. 

                       •  Contrast deterrence and retribution: Retribution focuses on the past; deterrence focuses on the future.

             D.  Rehabilitation 

Rehabilitation  The attempt to reform a criminal offender. Also, the state in which a reformed offender is said to be. 

                       •  This approach first became popular in the 1930s, but the emphasis on this philosophy declined dramatically after Martinson published his research stating that “nothing works” to reduce recidivism.

             E.  Restoration 

Restoration  A goal of criminal sentencing that attempts to make the victim “whole again.” 

Restorative Justice  A sentencing model that builds upon restitution and community participation in an attempt to make the victim “whole again.” 

                       •  Stress that the dominant philosophies guiding sentencing decisions today are incapacitation and deterrence. An effective way to demonstrate the predominance of these philosophies is to show a graph illustrating the number of incarcerated prisoners over time. Even with declining crime rates, the number of defendants sentenced to incarceration continues to grow.

   III.  Indeterminate Sentencing 

Indeterminate Sentencing  A model of criminal punishment that encourages rehabilitation via the use of general and relatively unspecified sentences (such as a term of imprisonment of from one to ten years). 

               •  It relies heavily on judges’ discretion.

               •  Parole is an important aspect of the indeterminate model.

               •  The primary determinant of the amount of time actually served is the inmate’s behavior while incarcerated.

A. Critiques of Indeterminate Sentencing 

                       •  It contributes to inequality in sentencing, and decisions are influenced by judicial personality and social characteristics of the defendant.

                       •  Defense attorneys manipulate the system to appear before the “right” judge.

                       •  It produces dishonesty in sentencing.

                       •  Time served is generally far less than what is indicated on the books.

Gain Time  The amount of time deducted from time to be served in prison on a given sentence for participation in special projects or programs. 

Good Time  The amount of time deducted from time to be served in prison on a given sentence as a consequence of good behavior. 

    IV.  Structured Sentencing 

               •  The problems with indeterminate sentencing led many states to revise their sentencing codes. States were concerned that three fundamental sentencing principles were being ignored.

Proportionality  A sentencing principle that holds that the severity of sanctions should bear a direct relationship to the seriousness of the crime committed. 

Equity  A sentencing principle, based upon concerns with social equality, that holds that similar crimes should be punished with the same degree of severity, regardless of the social or personal characteristics of the offenders. 

Social Debt  A sentencing principle that holds that an offender’s criminal history should objectively be taken into account in sentencing decisions. 

These concerns were addressed by adopting variously structured sentencing models.

Structured Sentencing  A model of criminal punishment that includes determinate and commission-created presumptive sentencing schemes, as well as voluntary/advisory sentencing guidelines. 

Determinate Sentencing  A model of criminal punishment in which an offender is given a fixed term that may be reduced by good time or gain 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. 

Voluntary/Advisory Sentencing Guidelines  Recommended sentencing policies that are not required by law. 

Presumptive Sentencing  A model of criminal punishment that meets the following conditions: (1) The appropriate sentence for an offender convicted of a specific charge is presumed to fall within a range of sentences authorized by sentencing guidelines that are adopted by a legislatively created sentencing body, usually a sentencing commission, (2) sentencing judges are expected to sentence within the range or to provide written justification for departure, (3) the guidelines provide for some review, usually appellate, of the departure from the guidelines. 

               •  Allows for the consideration of aggravating and mitigating circumstances.

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

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

A. Federal Sentencing Guidelines 

Truth in Sentencing  A close correspondence between the sentence imposed upon those sent to prison and the time actually served prior to release from prison. Source: Lawrence A. Greenfeld, “Prison Sentences and Time Served for Violence,” Bureau of Justice Statistics Selected Findings, No. 4, April 1995. 

                       •  The Sentencing Reform Act

                       •  Limited the discretion of federal judges by mandating the creation of federal sentencing guidelines.

                       •  Specified the purposes of sentencing to include deterring criminals, incapacitating or rehabilitating offenders, and providing just deserts in punishing criminals.

                       •  Key court decision on the federal sentencing guidelines:

                       •  Mistretta v. U.S.

: The Court held that Congress acted appropriately in the creation of the federal sentencing guidelines, and the guidelines could be applied in federal cases nationwide.

                     1.  Federal Guideline Provisions

                               •  A sentencing range is specified, and judges are allowed to depart from the guidelines if a case has atypical features (aggravating or mitigating circumstances).

                               •  Deal v. U.S.

: It is possible to try and to convict a defendant for six separate offenses in a single proceeding and use the federal sentencing guidelines to convict and sentence the defendant as a career offender as a consequence.

                     2.  Plea Bargaining under the Guidelines

                               •  Plea bargaining continues under the guidelines, but the plea has to be fully disclosed in the record of the court and detail the actual conduct of the offense.

             B.  The Legal Environment of Structured Sentencing 

                       •  Apprendi v. New Jersey

: Requiring sentencing judges to consider facts not proven to a jury violates the federal Constitution.

                       •  Harris v. U.S.

: The sentence imposed did not extend beyond the statutory minimum.

                       •  U.S.

v. Cotton: The finding was based on overwhelming and uncontroverted evidence and was not improper.

                       •  Blakely v. Washington: Invalidated any sentencing schema that allow judges rather than juries to determine any factor that increases a criminal sentence, except for prior convictions.

                       •  U.S. v. Booker and U.S.

v. Fanfan: Focused on the constitutionality of federal sentencing practices that relied on determination of facts by a judge rather than a jury in the application of sentencing guidelines.

             C.  Mandatory Sentencing

Mandatory Sentencing  A structured sentencing scheme that allows no leeway in the nature of the sentence required and under which clearly enumerated punishments are mandated for specific offenses or for habitual offenders convicted of a series of crimes. 

                       •  Introduce the concept of three-strikes laws.

                       •  Discuss their impact on crime and the criminal justice system.

Diversion  The official suspension of criminal or juvenile proceedings against an alleged offender at any point after a recorded justice system intake, but before the entering of a judgment, and referral of that person to a treatment or care program administered by a nonjustice or private agency. Also, release without referral. 

     V.  Innovations in Sentencing

             A.  Questions about Alternative Sanctions 

    VI.  The Presentence Investigation 

Presentence Investigation  The examination of a convicted offender’s background prior to sentencing. Presentence examinations are generally conducted by probation or parole officers and are submitted to sentencing authorities. 

               •  The purpose is to give the judge information about a defendant’s background.

               •  Can be a detailed written report, an abbreviated written report, or a verbal report.

               •  Information includes personal information, prior record, current offense information, health history, work history, social history, and education.

VII. The Victim—Forgotten No Longer 

               •  The Crime Victims’ Rights Act, part of the Justice for All Act of 2004, establishes statutory rights for victims of federal crimes and gives them the necessary legal authority to assert those rights in federal court.

             A.  Victim-Impact Statements 

Victim-Impact Statement  The in-court use of victim- or survivor-supplied information by sentencing authorities wishing to make an informed sentencing decision. 

        •  These statements usually describe the loss, suffering, and trauma experienced by the crime victim or the victim’s survivors.

        •  This information should be considered by the judge; however, research indicates that these statements rarely affect sentencing decisions.

VIII.  Modern Sentencing Options

B. Fines 

                       •  One of the oldest forms of punishment

                       •  Use of day fines (fines should be proportionate to the severity of the offense and the financial resources of the offender)

    IX.  Death: The Ultimate Sanction 

Capital Punishment  The death penalty. Capital punishment is the most extreme of all sentencing options.

Capital Offense  A criminal offense punishable by death. 

               •  Discuss the history of capital punishment.

                       •  Since 1608, 18,800 legal executions have occurred.

                       •  The numbers have declined this century.

                       •  The federal government and 38 states have capital punishment laws.

                       •  About 60 offenses are eligible for the death penalty.

                       •  As of April 1, 2005, 3,452 persons were under the sentence of death.

A. Habeas Corpus Review 

Writ of Habeas Corpus  A writ that directs the person detaining a prisoner to bring him or her before a judicial officer to determine the lawfulness of the imprisonment. 

                       •  McCleskyv. Zant: Limits the number of appeals available to a condemned person. After the first appeal, the defendant must show (1) why the subsequent appeal wasn’t included in the first appeal and (2) how the defendant was harmed by the absence of the claim.

                       •  Coleman v. Thompson: State prisoners condemned to die cannot cite “procedural default” (such as a defense attorney’s failure to meet a filing deadline for appeals in state court) as the sole reason for an appeal to federal court.

                       •  Schlup v. Delo: An appeal based upon new evidence can be heard if it is “more likely than not that no reasonable juror” would have found the defendant guilty.

                       •  Appeals are also limited by the Antiterrorism and Effective Death Penalty Act.

             B.  Opposition to Capital Punishment 

                       •  There is a risk that innocent people will be executed.

• It is not an effective deterrent.

                       •  It is arbitrary and discriminatory.

                       •  It is far too expensive.

                       •  Killing at the hands of the state is not a righteous act.

             C.  Justifications for Capital Punishment 

                       •  Retentionist position

                               •  Revenge

                               •  Just deserts

                               •  Protection

             D.  The Courts and the Death Penalty 

                       •  Key Supreme Court decisions:

                               •  Wilkerson v. Utah

: Upheld the use of the firing squad as a method of execution.

                               •  In re Kemmler: “Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution.” Also, this case upheld the use of electrocution as a method of execution.

                               •  Furman v. Georgia

: “Evolving standards of decency” might necessitate a reconsideration of the constitutionality of capital punishment. Allowing the jury to decide guilt and the punishment of death at the same time allowed for an arbitrary and capricious application of the death penalty.

                               •  Gregg v. Georgia

: The two-step process of a judge or jury deciding guilt and then undertaking a separate sentencing phase was specifically upheld by the Supreme Court.

                               •  Coker v. Georgia

: The death penalty is not an acceptable punishment for the crime of rape, concluding that execution would be “grossly disproportionate” to the crime.

                               •  Ring v. Arizona: Attorneys for an Arizona

death row inmate successfully challenged that state’s practice of allowing judges, sitting without a jury, to make factual determinations on imposition of the death penalty.

                               •  Summerlin v. Stewart: Vacated the death sentences in 100 cases in three states. Schiro v. Summerlin reinstated the same sentences.

                               •  Woodson v. North Carolina

: Laws requiring the mandatory application of the death penalty for specific crimes are prohibited.

                               •  Penry v. Johnson: The U.S. Supreme Court found that a state trial court in Texas

failed to consider the defendant’s mental retardation.

                               •  Atkins v. Virginia

: The U.S. Supreme Court ruled that executing mentally retarded people violated the Constitution’s ban on cruel and unusual punishment.

                               •  Thompson v. Oklahoma

: Death penalty cannot be used as a punishment for a defendant who was younger than 16 at the time of the offense.

                               •  Roper v. Simmons: Held that anyone who committed the crime when younger than 18 could not be sentenced to death.