CHAPTER 3
Sentencing: To Punish or to Reform?
Chapter Objectives
1. Describe sentencing philosophy and identify the central purpose of criminal punishment.
2. Name the seven goals of criminal sentencing.
3. List and explain the sentencing options in general use today.
4. Explain what a model of criminal sentencing is and identify models in use today.
5. Describe three-strikes laws and their impact on the correctional system.
6. Identify and explain some major issues related to fair sentencing.
Chapter Outline
I. Sentencing: Philosophy and Goal
A. Philosophy of Criminal Sentencing
· Western society has a long tradition of punishing criminal offenders.
o Historically, offenders were banished, exiled, killed, or tortured.
· Contemporary sentencing of offenders is still intimately associated with historical notions of punishment.
o Crimes are frequently seen as deserving of punishment.
· Philosophers have long debated why a wrongful act should be punished.
o Many social scientists suggest that criminal punishment maintains and defends the social order.
· One might ask, instead of punishing offenders, why not offer them psychological treatment or educate them so that they are less prone to future law violation?
· Some writers have suggested that society will always need to punish criminals because punishment is a natural response to those who break social taboos.
o Others disagree, arguing that an enlightened society will choose instead to reform lawbreakers through humanitarian means.
B. The Goals of Sentencing
· The goals of sentencing are revenge, retribution, just deserts, deterrence, incapacitation, rehabilitation or reformation, and restoration.
Revenge
· One of the earliest goals of criminal sentencing was revenge.
· Revenge can be described as both an emotion and as an act in response to victimization.
Retribution
· Retribution involves the payment of a debt to both the victim and society and, thus, atonement for a person’s offense.
· Historically, retribution was couched in terms of “getting even,” and it has sometimes been explained as “an eye for an eye, and a tooth for a tooth."
Just Deserts
· Retribution is supported by many sentencing schemes today—although the concept is now often couched in terms of just deserts even though there is a difference between retribution and just deserts.
· The concept of just deserts de-emphasizes the emotional component of revenge by claiming that criminal acts are deserving of punishment, that offenders are morally blameworthy, and that they must be punished.
Deterrence
· Two forms of deterrence can be identified:
o Specific deterrence—deterrence of the individual being punished from committing additional crimes.
o General deterrence—occurs when the punishment of an individual serves as an example to others who might be thinking of committing a crime, thereby dissuading them from their planned course of action.
Incapacitation
· Correctional econometrics is the study of the cost-effectiveness of various correctional programs and related reductions in the incidence of crime.
o Recent studies have identified a decreasing return associated with the expanded use of incarceration
Rehabilitation or Reformation (Video Click Here)
· The goal of rehabilitation or reformation is to change criminal lifestyles into law-abiding ones.
o Rehabilitation has been accomplished when an offender’s criminal patterns of thought and behavior have been replaced by allegiance to society’s values.
· A subgoal of rehabilitation is reintegration of the offender with the community.
o Reintegrating the offender with the community means making the offender a productive member of society—one who contributes to the general well-being of the whole.
Restoration
· Over the past few decades, a new goal of criminal sentencing, known as restoration, has developed.
o Restorative justice is based on the belief that criminal sentencing should involve restoration and justice for all involved in or affected by crime.
· A restorative justice perspective allows judges and juries to consider victim-impact statements in their sentencing decisions.
o These are descriptions of the harm and suffering that a crime has caused victims and their survivors.
· Advocates of restorative justice believe not only that the victim should be restored by the justice process but also that the offender and society should participate in the restoration process.
o To this end, efforts at restoration emphasize the successful reintegration of offenders into the community as well as victims’ rights and needs.
II. Sentencing Options and Types of Sentences (Sentencing Video (Click Here)
A. Options
· Legislatures establish the types of sentences that can be imposed.
· Congress and the 50 state legislatures decide what is against the law and define crimes and their punishments in the jurisdictions in which they have control.
· Sentencing options in wide use today include the following:
o Fines and other monetary sanctions
o Probation
o Alternative or intermediate sanctions such as day fines, community service, electronic monitoring, and day reporting centers
o Incarceration
o Death penalty
B. Types of Sentences (Green River Murder Sentencing Video Click Here)
· A sentence is generally imposed by a judge.
· Mandatory sentences are those that are required by law under certain circumstances—such as conviction of a specified crime or of a series of offenses of a specified type.
· Sentences can be consecutive or concurrent.
o Consecutive sentences are served one after the other.
o Concurrent sentences are served together.
III. Sentencing Models
· A model of criminal sentence is a strategy or system for imposing criminal sanctions.
· Sentencing in 19th-century America involved mostly fines, probation, and “flat” prison sentences.
A. Indeterminate Sentencing
· In an indeterminate sentence, the judge specifies a maximum length and a minimum length within limits set by statute, and a parole board determines the actual time of release.
· A second form of indeterminate sentencing requires the judge to specify only the maximum sentence length with the associated minimum set by statute.
· Prison officials have discretion over the amount of good time an inmate earns, which can affect parole eligibility, the discharge date, or both.
TIP: Review the assumptions on which indeterminate sentencing is based. Do you agree or disagree with these assumptions?
B. Determinate Sentencing
· A determinate sentence (also known as a fixed sentence) specifies a fixed period of incarceration, which can be reduced for good time served.
· The theory behind determinate sentencing is that criminals will be off the streets for longer periods of time.
· Prison administrators generally favor determinate sentencing and good-time credits because they aid in controlling prison populations.
C. Guideline Sentencing (Arizona Sentencing Guideline Click here)
· As part of the movement to eliminate sentencing disparities, some states, as well as the federal government, have enacted sentencing guidelines for judges to follow.
Voluntary/Advisory Sentencing Guidelines
· Among the earliest guided sentencing innovations in the United States was the experiment with voluntary guidelines, also called advisory guidelines.
o These are recommended sentencing policies that are not required by law.
Presumptive Sentencing Guidelines
· These models differ from determinate sentences and voluntary or advisory guidelines in three respects:
o The guidelines are developed, not by the legislature, but by a sentencing commission that often represents diverse interests, including private citizens as well as all segments of the criminal justice system.
o The guidelines are explicit and highly structured, relying on a quantitative scoring instrument.
o The guidelines are not voluntary or advisory.
§ Judges must adhere to the sentencing system or provide a written rationale for departure.
Federal Sentencing Guidelines
· Federal sentencing guidelines take into account a defendant’s criminal history, the nature of the criminal conduct, and the particular circumstances surrounding the offense.
o Congress required that all federal trial judges follow the guidelines in their sentencing decisions.
The Legal Environment And Sentencing Guidelines
· A number of U.S. Supreme Court cases focused on the authority that judges retain in deciding to depart from sentencing guidelines and on the application of sentencing enhancements
D. The Federal Fair Sentencing Ac
· In 2010, President Barack Obama signed the federal Fair Sentencing Act (FSA) into law.
· The act reduced a previous disparity in the amounts of powder cocaine and crack cocaine specified by the federal sentencing guidelines and eliminated what had been a mandatory minimum sentence under federal law for simple possession of crack cocaine.
E. Mandatory Minimum Sentencing
· Mandatory minimum sentencing refers to the imposition of sentences required by statute for those convicted of a particular crime or a particular crime with special circumstances.
· Mandatory sentence enhancements aim to deter known and potentially violent offenders and to incapacitate persistent criminals through long-term incarceration.
o Such sentence enhancements have come to be known as three-strikes laws (and, in some jurisdictions, two-strikes laws).
Rationales
· Mandatory sentences have two goals—deterrence and incapacitation.
· The primary purposes of modest mandatory prison terms are specific deterrence for already-punished offenders, and general deterrence for prospective offenders.
Impact
· Mandatory sentencing has had significant consequences that deserve close attention.
· Among them are its impact on crime and the operations of the criminal justice system
Crime
· Evaluations of mandatory minimum sentencing have focused on two types of crimes—those committed with handguns and those related to drugs (the offenses most commonly subject to mandatory minimum penalties in state and federal courts).
· An evaluation of the Massachusetts law that imposed mandatory jail terms for possession of an unlicensed handgun concluded that the law was an effective deterrent of gun crime, at least in the short term.
o However, studies of similar laws in Michigan and Florida found no evidence that crimes committed with firearms had been prevented
The Criminal Justice System
· Today’s busy criminal courts rely on a high rate of guilty pleas to speed case processing and thus avoid logjams.
· At least in the short term, mandatory sentencing laws may disrupt established plea-bargaining patterns by preventing a prosecutor from offering a short prison term (less than the new minimum) in exchange for a guilty plea.
IV. Three-Strikes Models–Washington and California
· During the last decade of the 20th century, 26 states and the federal government enacted new habitual offenders’ laws that fell into the three-strike category.
· Washington State was the first of those to do so.
· California soon followed with a considerably broader version of the three-strikes law.
· Although they were enacted within months of each other amid the same “three-strikes-and-you’re-out” rallying cry and they count many of the same offenses as strikes, the Washington and California laws differ in three important ways.
o In Washington, all three strikes must be for felonies specifically listed in the legislation.
§ Under the California law, only the first two convictions must be from the state’s list of “strikeable” crimes (which include most violent offenses and many drug offenses); any subsequent felony can count as the third strike.
o The California law contains a two-strikes provision, by which a person convicted of any felony after one prior conviction for a strikeable offense is to be sentenced to twice the term he or she would otherwise receive.
§ There is no two-strikes provision in the Washington law.
o The sanctions for a third strike differ.
§ The Washington statute requires a life term in prison without the possibility of parole for a person convicted for the third time of any of the “most serious offenses” listed in the law.
§ In California a “third-striker” has at least the possibility of being released after 25 years.
A. Impact on Local Courts and Jails
· When three-strikes laws were first passed in Washington and California, some analysts projected a much greater impact on local criminal justice systems in California because the California law had a much broader scope.
o They predicted that California courts would be overwhelmed as defendants facing enhanced penalties demanded jury trials.
· Early evidence from California supported these predictions.
o A review of 12,600 two- and three-strikes cases from Los Angeles, for example, showed that two-strikes cases took 16 percent longer to process and threestrikes cases 41 percent longer than nonstrike cases.
· According to more recent data, however, at least some California counties have learned how to handle the changes brought about by the law.
o A recent survey of eight California counties with populations of more than 1 million identified several that were successfully disposing of two- and three-strikes cases early in the process.
B. Impact on State Prison Systems
· The impact of the Washington and California laws on state corrections departments has not been as severe as projected.
· Such laws may funnel increasingly older persons into correctional institutions and ensure that they will remain there for a very long time.
· The strategy, which began to be implemented in earnest in 2012, is seen as a way of reducing state expenditures on correctional clients.
The Current Applicability of Three-Strikes Laws and Habitual Offender Statute
· According to the Washington, D.C.-based Sentencing Project, only a handful of states have convicted more than a hundred individuals using two- and three-strikes statutes—even though more than half of all states have such laws on the books.
· There is evidence of a movement away from mandatory minimum sentences in a number of jurisdictions where such sentences have been blamed for prison crowding and budgetary problems.
· The economic problems that have caused some states to use habitual offender statutes less frequently or to release repeat offenders early are present in almost all regions of the country.
V. Issues in Sentencing
· Although fair sentencing today often refers to fairness for victims, many suggest that any truly fair sentencing scheme must incorporate fairness for both victims and offenders.
· The issues related to fairness in sentencing are proportionality, equity, social debt, and truth in sentencing.
A. Proportionality
· Proportionality is the sentencing principle that the severity of punishment should match the seriousness of the crime for which the sentence is imposed.
B. Equity
· Equity is the sentencing principle that similar crimes and similar criminals should be treated alike.
· The alternative to equity is disparity, in which similar crimes are associated with different punishments in different jurisdictions or in which offenders with similar criminal histories receive widely differing sentences
C. Social Debt
· Social debt is the sentencing principle that the severity of punishment should take into account the offender’s prior criminal behavior.
· A number of laws designed to recognize social debt have recently been passed.
o Among them are three-strikes and two-strikes laws.
D. Truth in Sentencing.
· Until the sentencing reforms of the 1970s, the laws of many states enabled convicted offenders to be released from prison long before they had served their full sentences.
o Inmates frequently had good time deducted from their sentences or time off for good behavior.
o Gain time could be earned for going to school, learning a trade, or doing volunteer work
· Recent truth-in-sentencing laws have changed such practices by requiring offenders to complete sentences very close to the ones they are given.
o Truth in sentencing requires an offender to serve a substantial portion of the sentence and reduces the discrepancy between the sentence imposed and actual time spent in prison.
TIP: What would happen to the prison system if there were no early release provisions or no option for good time credit to be earned? Besides overcrowding how would the inmates behave without incentives to good behavior?
E. Broader Issues
· Today’s two main sentencing initiatives—guideline-based determinate sentencing and restorative justice—represent different attempts to achieve sentencing fairness.
o The two, however, appear to be inherently at odds with one another.
· One way of addressing the differences between the two approaches would be to seek greater community involvement in the development of sentencing guidelines.
o In fact, many states have encouraged local participation in the guideline-development process.
· Some authors have suggested creation of a hybrid system of “restorative sentencing guidelines” to resolve the problem.
o Under the system, a new restorative sentencing option would be created and made applicable to less serious offenders.