Sentencing objectives—what is the purpose of punishment?
retribution
make the punishment fit the crime—Cesare Beccaria
desire for proportionality
vengeance
punishment to give society a measure of satisfaction
Payne v. Tennessee; U.S. Supreme Court ruling
permitting victim impact statements
incapacitation
restraint or isolation
object is community protection
by execution, imprisonment, or exile
deterrence
using punishment to make an example of persons convicted
of crimes in order to prevent future crimes
can be either general or specific
most widely held justification for punishment
rehabilitation
changing an offender's behavior to prevent future crime—seen
as humanitarian
crime has a "cause" which can be identified and corrected
modify behavior and reintegrate the lawbreaker into society
Statutory sentencing structures
sentencing philosophy translated into actual punishment
sentencing as a product of the legislature, judge, (sometimes)
jury
legislature makes the law
Fines
imposed either in lieu of (in place of) or in addition to incarceration
or probation
most common for traffic infractions and misdemeanors
can be used for felonies and can amount to thousands of dollars
experiments with use of day fines
Imprisonment
various names given to types of prison sentences; three major
types: indeterminate, determinate, and definite
the indeterminate sentence
fixed minimum and fixed maximum—no definite time period
set
with a range of years, offender must serve at least the minimum
after minimum, offender can be paroled
based on correctional model, rehabilitation philosophy
paroling authority determines when offender is suitable for
release—this varies with the individual offender
criticisms of indeterminate sentencing
the determinate sentence
a fixed number of years that the offender is sentenced to
serve; may be reduced by parole
may also be known as flat, fixed or straight
court may still give probation or fine instead of imprisonment
the definite sentence; a fixed period of time with no reduction
by parole
Other sentencing variations
intermittent sentence—a term of imprisonment to be served
on certain days as specified by the court, not a continuous time period
mandatory sentence—legal requirement that the judge sentence
an offender to a prison term; disallows judicial discretion
mandatory minimums
other alternatives—tailoring sentences for specific crimes
and specific offenders
Disparities in sentencing
giving significantly different sentences to similar offenders
convicted of similar crimes
product of indeterminate sentencing, judicial discretion, and
plea bargaining
exists within individual courts and across jurisdictions
examples of research on sentence disparity in various states
consequences of sentence disparity
mocks principle of fairness
judge-shopping
may breed hostility in sentenced offenders
denigrates the image of the courts
Sentencing reform
responding to criticisms of sentencing
presumptive sentencing
limited range of years—fixed determinate sentence is
set by judge within that range
reduces disparity by limiting discretion and provides community
protection
seen as a combination of determinate and indeterminate sentencing
sentencing institutes—to foster interest in sentencing,
educate judges, and formulate policy
sentencing councils—panel of judges who review cases awaiting
sentencing and make a recommendation to the sentencing judge
federal sentencing guidelines
the U.S. Sentencing Commission created by Congress in 1985
an attempt to produce uniformity in federal sentencing
criticisms related to the separation-of-powers doctrine
U.S. Supreme Court has upheld the Sentencing Commission as
constitutional
Truth in sentencing
The sentencing process
sentencing as a collective decision-making process involving
prosecutor, defense attorney, judge, and probation officer
presentence investigation
conducted by probation officer
produces a presentence report
helps judge decide on appropriate sentence
helps in probation and parole supervision
helps in correctional treatment
provides information for parole boards
provides information for research
allocation—right of a convicted offender to verbally address
the court prior to sentencing
judge imposes sentence
multiple sentences may be ordered served concurrently or
consecutively
jail time; defendant usually has time in jail prior to trial
deducted from sentence; "credit for time served"
The Death Penalty in the United States
Eighth Amendment ban against cruel and unusual punishment
Brief history of capital punishment in early America—example
of New Haven colony
The death sentence, 1864-1967
increase in use of death penalty; peaks in 1930s; fewer than
200 executions per year by 1960s
wide number of offenses punishable by death through the 1960's
Capital punishment and discrimination
President's Commission observation that blacks were subject to
the death penalty more frequently than whites (1967)
systematic discrimination based on race
Wolfgang and Amsterdam study
Cruel and unusual punishment
uncertainty of the meaning of this phrase
Weems v. United States (1910)—is the punishment
disproportionate to the crime?
"The evolving standards of decency that mark the progress of
a maturing society" (Trop v. Dulles, 1958)
The death penalty and the Supreme Court
few Supreme Court cases on the death penalty until the 1950's
1950s and 1960s—NAACP and ACLU legal attack on capital
punishment
the 1967 moratorium (period of delay)
significant Supreme Court cases
Witherspoon v. Illinois (1968)—jury composition
in capital cases
McGautha v. California (1971)—jury discretion
in deciding sentence
Furman v. Georgia (1972)—Supreme Court rules
that the Georgia death penalty law was unconstitutional because it
was arbitrary, capricious, and discriminatory
Gregg v. Georgia (1976)
challenge to Georgia's post-Furman death penalty law
bifurcated trial (two-part proceeding: guilt phase and sentencing
phase)
structured jury decision-making; mitigating and aggravating
circumstances
death penalty is not, in itself, cruel and unusual punishment
in related cases, mandatory death penalty laws struck down
as unconstitutional
developments after Gregg
Colker v. Georgia (1977)—death penalty
for rape is unconstitutional
Godfrey v. Georgia (1980)—"depravity
of mind "
The return of capital punishment; the Gary Gilmore case
Methods of execution
majority of the states have capital punishment
hanging, shooting, electrocution, lethal gas
lethal injection ("the ultimate high") as the leading method
of execution in the 1990s
The death penalty debate
economic argument—is it more expensive to execute someone
than to keep them in prison for life?
retribution argument—do some murderers deserve to die?
public opinion—do the American people want the death penalty?
community protection argument—is the death penalty necessary
to protect society?
deterrence argument—does the death penalty serve as a deterrent?
irreversibility argument—should we use a punishment that
cannot be corrected in the event of a wrongful conviction?
discrimination argument—is the administration of capital
punishment fair and just?
protection of the criminal justice system argument—does
the death penalty have an undesirable impact on the administration
of justice?
brutalization argument—does capital punishment encourage
some people to commit murder?
cruel and unusual punishment argument—does death penalty
violate the Eighth Amendment?
Capital punishment in 1980s and 1990s
the number of persons on death row continues to grow in the 1990s
the number of executions also continues to grow
Supreme Court rulings favorable to death penalty supporters
continuing uncertainty in the minds of the Supreme Court justices
Appellate Review
Appeal—a complaint to a superior court to review a decision
by a lower court
Defendant's right to appeal
burden of proof shifts to the defendant
specific rules governing appeals
Plain Error Rule
Automatic Reversal Rule
Harmless Error Rule
Invited Error Rule
Prosecutor's right to appeal
may not appeal a not guilty verdict
may appeal the decision of an appellate court
may be able to appeal to correct legal errors occurring during
trial
Appellate review of sentences
sentences are generally unappealable
exceptions noted
U.S. Supreme Court reluctance to question sentences given by
trial courts
The appeal process—subject to specific rules of timeliness
and procedure
