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Chapter 11
Sentencing
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Sentencing
• Sentencing—the imposition of a
criminal sanction by a judicial
authority.
• Most sentencing decisions are
made by a judge, though in some
cases, especially death-eligible
cases, juries are involved.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Traditional Sentencing Options
•
•
•
•
Imprisonment
Fines
Probation
Death
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Goals of Sentencing
•
Five goals influence modern
sentencing practices:
•
•
•
•
•
Retribution
Incapacitation
Deterrence
Rehabilitation
Restoration
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Retribution
• … 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.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Incapacitation
• …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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Deterrence
• … 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
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Deterrence
• Specific
Deterrence
– Seeks to prevent
recidivism—repeat
offending by
convicted
offenders.
• General
Deterrence
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
– Tries to influence
the behavior of
those who have not
yet committed a
crime yet may be
tempted to.
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
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Rehabilitation
• … 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Restoration
• … 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Indeterminate Sentencing
• … A model of criminal punishment that
encourages rehabilitation via the use of
general and relatively unspecific
sentences.
– 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Criticisms of Indeterminate
Sentencing
• Indeterminate sentencing gives
inadequate attention to:
– Proportionality
– Equity
– Social debt
• Gain time, good time, and other
allowances may result in release
even before the lower limit has
been served.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Structured Sentencing
• Structured sentencing developed,
in part, as a response to the
disparity in sentencing of the
indeterminate model.
– Determinate sentencing
– Voluntary/advisory sentencing
guidelines
– Commission-created presumptive
sentencing
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Determinate Sentencing
• Offender is given a fixed sentence
length.
• The sentence can be reduced by
“good time.”
• The use of parole is eliminated.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Commission Based Presumptive
Sentencing
•
… model of punishment that meets the
following conditions:
–
–
–
Proper sentence is presumed to fall within
the range authorized by sentencing
guidelines.
If judges deviate from guidelines, they
must provide written justifications.
Sentencing guidelines provide for some
review, usually by an appellate court.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Presumptive Sentencing Guidelines
• The federal government and 16
states now employ sentencing
guidelines.
• Guideline jurisdictions generally
allow judges to take into account
aggravating and mitigating
circumstances.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Aggravating and Mitigating Factors
• Aggravating
• Circumstances
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
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
• 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
• The Comprehensive Crime Control
Act of 1984 established
presumptive sentencing for federal
offenders and addressed truth in
sentencing.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Truth in Sentencing
• … a close correspondence
between the sentence imposed
upon an offender and the actual
time served prior to release from
prison.
• …an important policy focus.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Federal Sentencing Guidelines
• The U.S. Sentencing Commission
– 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Federal Sentencing Guidelines
• Purpose of the Guidelines is to:
– Limit federal judges’ discretion
– Reduce disparity
– Promote consistency and uniformity
– Increase fairness and equity
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Plea Bargaining Under
the Guidelines
• Of all federal cases, 90% are the result
of guilty pleas, of which the vast
majority are 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
The Legal Environment of
Structured Sentencing
• Apprendi v. New Jersey (2000)—held
that requiring sentencing judges to
consider facts not proven to a jury is
unconstitutional. This raised the
question of whether judges could
legitimately deviate from sentencing
guidelines….
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
The Legal Environment of
Structured Sentencing
• Blakely v. Washington (2004)-invalidated any state sentencing
schema that allowed judges, rather
than juries, to determine any factor
that increases a criminal sentence,
except for prior convictions.
• This holding was reinforced in
Cunningham v.
• California (2007).
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
The Legal Environment of
Structured Sentencing
• U.S. v. Booker (2005) and U.S. v. Fanfan
(2005) examined the constitutionality of
federal sentencing 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Mandatory Sentencing
• 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Three Strikes Laws
• 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Innovations in Sentencing
• 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
The Victim – Forgotten No
Longer
• 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 financial losses.
• Victim rights advocates want to add an
amendment to the U.S. Constitution.
• 30 states have amended their constitutions.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Crime Victims’ Rights Act
• The 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Victim Impact Statements
• The victims’ rights movement also called
for the use of victim impact statements
before 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Traditional Sanctions
• There are four traditional sanctions:
1.Fines
2.Probation
3.Imprisonment
4.Death
• A judge’s discretion to choose the
sanction type varies depending on
the structure of sentencing used
within that particular jurisdiction.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Fines
• Fines are one of the oldest forms of
sentencing.
• Fines may be used alone or in
combination with another penalty.
• More than $1 billion in fines are
collected nationwide each year.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Fines
• Arguments For
• Arguments Against
• 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
• Too mild of a
punishment.
• Offenders often
serve no time.
• Discriminate against
the poor.
• Can be difficult to
collect.
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Day Fines
• Some critics of fines propose using
the Scandinavian system of day
fines.
• Day fines are proportional to the
severity of the crime and the
financial resources of the offender.
• Day fines have been successfully
used in some jurisdictions in the US.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
The Death Penalty
• 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).
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
The Extent of Death Penalty Statutes
• Capital punishment is a sentencing
option is 35 states and the federal
government.
– States vary considerably with regard to
the number of death sentences given
and the number of executions.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Court-Ordered Executions Carried Out in the
United States, 1930- 2008
FIGURE 11–3 Court-ordered executions carried out in the United States, 1930–2008.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Methods of Execution
• Methods of imposing death vary by
state.
– Most use legal injection.
– Electrocution, hanging, gas chamber,
and firing squad are still on the books as
a option in at least one state.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Habeas Corpus Review
• Today, the average time before
execution is 12 years and 9 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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Limiting Appeals
• In a move to reduce delays in
executions, the U.S. Supreme Court:
– Limited the number of appeals (McCleskey
v. Zandt, 1991 & Coleman v. Thompson,
1991).
– Defined standards for further appeals from
death row inmates (Schlup v. Delo, 1995)
• Further limitations were instituted by
the Antiterrorism and Effective Death
Penalty Act of 1996.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Abolitionist and Retentionist
Positions on Capital Punishment
• Arguments for
Retention
• Arguments for
• Revenge—Only after
execution can survivors
begin to heal
psychologically
• Just deserts—Some
people deserve to die for
what they did
• Protection—Once
executed, the person
cannot commit another
crime
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
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The Courts and the Death Penalty
• In re Kemmler (1890)
• Furman v. Georgia (1972)
• Gregg v. Georgia (1976)
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
The Death Penalty and DNA
• The Death Penalty Information Center
claims that 133 people in 25 states were
freed from death row between 1973
and 2009 after it was determined that
they were innocent.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Number of DNA-Based Exonerations by
State since 1989
FIGURE 11–4 Number of DNA-based exonerations by state since 1989.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Lethal Injection
• Baze v. Rees (2008)
• Capital punishment protocol does not violate 8th
Amendment as it does not create a substantial risk of
pain, torture, or lingering death.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
The Death Penalty and Mental
Capacity
•
•
•
•
Penry v. Johnson (2001)
Atkins v. Virginia (2002)
Kelsey Patterson (2004)
Scott Panetti (2007)
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
The Death Penalty and Age
• Roper v. Simmons (2005)
• Age is a bar to execution when the
offender committed the crime when he
was younger than 18.
• There is no upper age limit on executions.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
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.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]