Punishment and Sentencing

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Punishment and Sentencing
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Punishment Options Through Time

• Options now and in the past people have been
  quite inventive
• Death done in all kinds of manners
• Physical pain amputation, flogging, branding
• Loss of resources fine, restitution, community
  service, privileges (gun ownership, legal rights
  civil death)
• Loss/restriction of liberty jail, prison,
  probation, parole
• Shame and ostracism dunking, stocks, scarlet
  letter, sex offender registration, chain gangs
• Intermediary punishments electronic, halfway
  houses, boot camps, drug courts

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Punishment Trends

• From punishing the body to punishing the mind
• From physical pain to financial pain
• The standard of proportionality make punishment
  fit the crime
• The rise of the prison
• The decline of public punishment

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The Current Punishment Ladder

• Ranging from restorative justice to the death
  penalty
• Restorative justice
• Fines and day fines
• Probation (about 4 million in 2006)
• Treatment and control
• Conditions and Revocation
• Intensive Probation - ISP
• Intermediary sentences (between release in
  liberty and imprisonment)
• Drug courts community service house arrest,
  electronic monitoring restitution and
  forfeiture halfway houses boot camps
• Imprisonment jail and prison (over 2 million in
  2006)
• Death

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Goals of Sentencing

• Deterrence general and specific
• Incapacitation general and selective (career
  criminal)
• Punishment retributive justice, just deserts
• Rehabilitation
• Restitution
• Reintegration

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Goals of Sentencing
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The Goals of Modern Sentencing

• General Deterrence
• Punishing the offender serves to convince
  society, or potential criminals, not to commit
  crimes
• Difficulty in determining the right amount of
  punishment
• Some believe recent declines in crime rates are
  result of tough sentences
• Assumes people consider consequences before
  acting
• Specific Deterrence
• Will deter that particular offender from
  committing future crimes

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The Goals of Modern Sentencing (cont.)

• Incapacitation
• Confinement so that offender cannot commit more
  crimes keeps society safer prevents future
  crimes
• General all who sit in prison cannot commit
  crimes, except against other people in the prison
  (guards, staff, fellow prisoners)
• Specific target repeat offenders or career
  criminals who commits many offenses locking them
  up is a cost effective way of preventing many
  crimes
• The estimates of how many crimes are prevented by
  each incapacitation vary wildly

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Goals of Sentencing (cont.)

• Punishment/Retribution/Just Desert
• Those who commit crimes deserve to be punished
• A just measure of pain proportional to the harm
  done by the crime is the proper sentence
• The sentence should be clear and certain (not
  open-ended)

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The Goals of Modern Sentencing (cont.)

• Rehabilitation
• Based on treatment philosophy that offenders can
  be reformed
• Sometime called the medical model crime is an
  illness which can be cured with proper treatment
• Requires that treatment services are available
  for convicted offenders while in prison or under
  state control

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Goals of Modern Punishment (cont.)

• Equity/restitution
• It is fair and just for criminals to repay
  society and their victims
• The concern is for the victim the harm done
  them should be made good
• Works better for property crimes, since the harm
  done can be calculated, but less so for person
  crime (e.g., what is the proper restitution for
  sexual assault?)

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Goals of Modern Punishment (cont.)

• Reintegration
• Almost all convicted offenders sentenced to
  prison will return to society at some time
• A non-reintegrated offender is likely to commit
  another crime, hence is a threat to others
• E.g., long prison sentences practically guarantee
  that the ex-convict will re-offend, will not
  become a law abiding citizen
• Sentences should not make it impossible for
  ex-convicts to be reintegrated into society
• Consider alternative sentences which are less
  likely to complicate or undermine reintegration

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Imposing the Sentence

• Except for mandatory sentences, judges rely on a
  variety of information
• Sentencing guidelines
• Victim impact statements
• Pre-sentence investigation reports
• Concurrent sentences person serves sentences for
  two or more crimes at the same time
• Consecutive sentences sentences for two or more
  criminal acts that are served one after the other
• Effects of good time can shorten sentences

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Sentencing Models

• Indeterminate sentences
• Based on a treatment philosophy which must fit
  the needs of the offender
• Sentence has a minimum and maximum
• Inmate can earn time off for good behavior
• Early release but continued supervision
• Your prison sentence is completed when a parole
  board decides you are safe to return to society

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Sentencing Models (cont.)

• Determinate sentences
• Sometimes referred to as structured sentences
• Prompted by dissatisfaction with disparity and
  uncertainty of indeterminate sentencing.
• Defendants serve specified number of years
• Truth in sentencing laws sentences, or
  percentage of, imposed by judge must be served
• Use of sentencing guidelines

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Why Sentencing Guidelines

• Limit judicial discretion, ensure greater
  consistency, less disparity in sentencing
• Constructing Guidelines Who makes these
• Consultants, appointed commissions, legislatures
• Constructing the sentencing table
• Two Underlying principles Proportionality and
  Criminal History
• proportionality the severity of punishment
  should be proportional to the seriousness of the
  crime
• criminal history the severity of punishment
  should increase for repeat offenses

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Sentencing Guidelines

• Constructing the Sentencing Table (cont.)
• Two decisions Horizontal equity and vertical
  equity
• Vertical equity Which crimes are more or less
  serious than other crimes?
• How much greater should the punishment be as go
  up vertical equity?
• Horizontal equity which crimes are similar in
  seriousness to other crimes
• Presumptive sentence midpoint and ranges
• Going outside the range allowed or not
  mitigating and aggravating circumstances

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Sentencing Models (cont.)

• Effectiveness of guidelines
• They are too rigid, harsh and overly complex
• Take into account juvenile convictions
• Result in longer prison terms
• U.S. v. Booker held federal guidelines were
  unconstitutional
• they are advisory, not mandatory
• The impact of sentencing guidelines on plea
  bargaining

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The Justice of Sentencing Guidelines

• Are guidelines fair?
• Limit the capacity of judges to tailor punishment
  to the nature of the offense and the offender
• Biased against African-Americans and other
  minorities criminal histories which affect
  sentences may reflect prior discrimination

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Sentencing Models (cont.)

• Mandatory Sentences
• Bars judicial discretion
• May exclude probation
• May exclude parole
• May use minimum or maximum terms but most
  commonly requires a fixed prison sentence
• Have been one factor contributing to the
  increased the size of the correctional population
  to record levels

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Sentencing Models (cont.)

• Three-strikes laws
• Provides lengthy prison terms for anyone
  convicted of three felonies many of the
  statutes impose a life sentence
• May involve relatively trivial felony offenses
• Experts argue whether it has any deterrent effect
• Can a prior guilty plea (after plea bargaining or
  an Alford plea) be reversed if it leads to third
  strike?

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Sentencing Models (cont.)

• Truth in sentencing
• Require offenders to serve a substantial portion
  of their prison sentence behind bars
• Parole eligibility and good-time credits are
  restricted or eliminated

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How People are Sentenced

• In 2002 more than 1 million adults were convicted
  of a felonies in a single year.
• About 2/3 of felons convicted in state court were
  sentenced to a period of confinement.
• The average sentence in state courts was 4½
  years.
• Offenders generally served only 51 percent of
  their sentence.

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Sentencing Patterns

• Sentences tend to be quite severe
• For example, the average prison sentence for
  violent offenders is 92 monthsseven years and
  eight months, or about the time for two college
  BAs

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How People are Sentenced (cont.)

• Factors that effect sentencing
• Seriousness of the crime
• Offenders prior record
• Whether offender used violence
• Whether offender used a weapon
• Whether the crime was committed for money

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How People are Sentenced (cont.)

• Factors That Effect Sentencing (cont.)
• Social class lower class members may expect to
  get longer sentence
• Gender chivalry hypothesis women receive more
  favorable outcomes
• Age more lenient with elderly offenders
• Victims with negative personal characteristics
  defendants may receive shorter sentences
• Racial status minorities receive longer
  sentences in some jurisdictions

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Death Penalty

• The most serious and irreversible punishment
• Arguments for and against can think about the
  D-P at five levels
• Personal could I personally kill someone?
• Philosophical is it just to kill someone
  (adults, non-adults, mentally disabled)?
• Effectiveness does the death penalty deter
  others and save lives?
• Can it be implemented as a policy in the correct
  way?
• Is it discriminatory when applied?
• Is it accurate do innocent people get sentenced
  and executed?
• Is the process done fairly proper defense?
• Can we afford it financially trials and appeals?

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Death Penalty (cont.)

• The death penalty is the outcome of a process it
  is not a philosophical issue in practice.
• Prosecutors have to charge death eligible
  using aggravating circumstances
• There are two trials
• Guilty or not guilty trial
• Sentencing trial a jury, not a judges, has to
  decide whether to impose the death penalty after
  a guilty verdict jury must be death qualified
• Automatic appeals on every death penalty
  conviction
• Offenders sentenced to death row tend to spend
  many years there, before execution, dying of
  natural causes, violence by other inmates, or
  being set free

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Capital Punishment

• More than 14,500 executions since 1608
• Supreme Court has limited crimes for which death
  penalty may be imposed
• Practically all executions are for aggravated
  murder
• Death penalty for murder is used in 38 states and
  by the federal government

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Capital Punishment (cont.)

• Approximately 3,400 people are currently under
  sentence of death
• Between 75 and 100 people are executed each year
• In 2004, 59 people were executed
• Lethal injection primary mode of execution
• earlier methods, hanging, electric chair, gas
  chamber, shooting are rarely used or allowed
• Lethal injection, done out of sight, is
  considered the most civilized form of killing a
  convict
• Lethal injection currently challenged as cruel
  and unusual punishment
• Unease over potential for error has caused
  decline in number of inmates on death row and
  executions

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Capital Punishment (cont.)

• Arguments for the death penalty
• Incapacitation when you are dead you cannot kill
  again
• Deterrence other murders will be prevented
• Morally correct retributive justice
• Proportional to the crime you kill, we kill you
• Reflects public opinion public supports the
  death penalty support declines to about 50
  percent if people are told that life in prison
  without parole is an alternative
• Unlikely chance of error the system works

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Capital Punishment (cont.)

• Arguments against the death penalty
• Possibility of error
• Unfair use of discretion
• Misplaced vengeance
• Weak public support
• Little deterrent effect causes more crime than
  it deters
• Always a hope of rehabilitation
• Racial, gender, and other bias
• Brutalization effect
• Expensive and morally wrong

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Capital Punishment (cont.)

• Legal Issues
• Furman v. Georgia Discretionary imposition is
  unconstitutional
• Gregg v. Georgia Must consider aggravating and
  mitigating circumstances
• Ring v. Arizona Jury must impose sentence not
  judges
• Atkins v. Virginia May not execute mentally ill
• Roper v. Simmons Must be 18 years old to be
  sentenced to death

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Deterrence and Capital Punishment

• Deterrent effect of capital punishment
• Three methods of research used to try to
  determine if death penalty deters crime
• Immediate-impact studies
• Time-series analysis
• Contiguous-state analysis
• Most researchers have failed to show any
  deterrent effect of capital punishment
• General consensus by researchers is that capital
  punishment has little or no deterrent effect

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How Does Deterrence Work?

• Affects motivation
• Seeks changes in future behavior
• By changing the calculus of consequences
• More effective if certain, swift, and severe
• Certainty and celerity seem to matter more than
  severity
• Depends on how much likely offenders know about
  certainty, celerity, and severity

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How Does Deterrence Work? (cont.)

• Deterrence works for some behaviors and
  individuals but not others
• Traffic works by personal experience
• Why work in traffic immediacy (celerity) and low
  costs for behavior change (slow down when see
  police car)
• Murder and the death penalty
• Many homicides are committed for emotion and
  passion little calculation
• Some are committed for pay, not affected by
  possible consequences
• Difficult to calculate consequences costs and
  benefits
• Miscalculations of certainty (wont get caught)
• Long delays between sentence and execution

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Deterrence

• Deterrence as policy
• Who can or needs to be deterred?
• targeting deterrence
• no need wont commit murder
• could be deterred by consequences
• cannot be deterred by consequences
• But percentages for each group are unknown
• Most deterrence policies will change severity
  easier than changing celerity or certainty
• The likelihood to over-deter
• Severity will target the least able to be
  deterred
• Inefficient use of resources less severity
  could deter a lot of people

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The Deterrence Curve

• Every person has a deterrence curve the level of
  punishment which would deter her/him from
  committing a crime
• For most people, it will take more punishment to
  deter them from more serious crime and less
  punishment to deter from non-serious crime
• For some people, even little potential punishment
  will deter them from all crimes
• For other people, even severe potential
  punishment will not deter them from most crime
• The relationship between severity of punishment
  and deterrence can be plotted on a deterrence
  curve

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False Convictions

• Over 120 death row inmates released since 1976,
  for having been falsely convicted they were
  innocent of the crime for which they were
  sentenced to death
• It is pretty certain that innocent people have
  been executed
• Race/ethnic composition of prisoners released
  through DNA evidence (not all from death row)
• 183 total 106 Black, 47 White, 18 Latino, 1
  Asian American, rest unknown (2003)

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Death Penalty (cont.)

• Reasons for false convictions
• Mistaken eyewitness identification
• Inaccurate forensics
• False confessions
• Jail house informants
• Bad defense lawyers
• Misconduct by prosecutors and police

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Discrimination

• Does race, gender, minority status affect who is
  sentenced to death and who is executed?
• About 53 percent of executed in the US since 1976
  have been African-Americans
• There is limited support that race of the
  offender by itself (most studies look as
  black-white differences in sentencing) is a
  factor
• There may be a cumulative discriminatory effect,
  in that at each stage of the process small
  discriminatory decisions add up
• The proportion of Black death row inmates (about
  47 percent) is much larger than the proportion of
  black males in the general population
  (Practically all death row inmates are male).

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Discrimination

• There is pretty clear evidence that the race of
  offender and victim taken together matter.
• White offenders who kill black victims are much
  less likely to be charged, convicted, and
  sentenced to death than are black offenders who
  kill white victims

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Fair Process

• Most accused of a capital offense are poor and
  cannot afford a lawyers
• Many states provide little money for lawyers who
  defend those on trial for a capital offense
• There are many examples of lawyers doing very
  little to protect the rights of their clients in
  capital cases (sleeping while the trial goes on,
  failing to cross examine witnesses, not objecting
  to rulings when they should have)
• The quality of defending varies from abysmal to
  excellent

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END