Punishment and Sentencing

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

Punishment Trends

From punishing the body to punishing the mind

From physical pain to financial painThe standard of proportionality – make

punishment fit the crimeThe rise of the prisonThe decline of public punishment

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

Goals of Sentencing

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

Goals of Sentencing

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

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

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)

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

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?)

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

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

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

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

Why Sentencing Guidelines

Limit judicial discretion, ensure greater consistency, less disparity in sentencing

Constructing Guidelines: Who makes theseConsultants, appointed commissions,

legislaturesConstructing the sentencing table

Two Underlying principles: Proportionality and Criminal Historyproportionality: the severity of punishment should

be proportional to the seriousness of the crimecriminal history: the severity of punishment should

increase for repeat offenses

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 crimesPresumptive sentence: midpoint and rangesGoing outside the range: allowed or not;

mitigating and aggravating circumstances

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

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

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

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?

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

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.

Sentencing Patterns

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

How People are Sentenced (cont.)

Factors that effect sentencing: Seriousness of the crime Offender’s prior record Whether offender used violence Whether offender used a weapon Whether the crime was committed for money

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

Death Penalty

The most serious and irreversible punishmentArguments 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?

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 convictionOffenders sentenced to death row tend to spend many

years there, before execution, dying of natural causes, violence by other inmates, or being set free

Capital Punishment

More than 14,500 executions since 1608Supreme Court has limited crimes for which

death penalty may be imposedPractically all executions are for aggravated

murderDeath penalty for murder is used in 38 states

and by the federal government

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 executedLethal 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

punishmentUnease over potential for error has caused decline in

number of inmates on death row and executions

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

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

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

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

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

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 (won’t get caught) Long delays between sentence and execution

Deterrence

Deterrence as policy: Who can or needs to be deterred? targeting deterrence

% no need – won’t 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

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

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)

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

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).

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

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

END