Kelly L. Gould

Sentencing

Traditional Sentencing Options

imprisonment

fines

probation

death

Sentencing

retribution

incapacitation

deterrence

rehabilitation

restoration

Retribution:

Incapacitation:

Deterrence:

Deterrence

hedonistic calculus - Jeremy Bentham’s belief that people weigh the perceived rewards of criminal behavior against the perceived punishments.

Bentham believed that crime will be prevented when perceived punishment outweighs perceived reward.

Specific Deterrence:

General Deterrence:

Rehabilitation:

Restoration:

Sentencing

Two Types:

Indeterminate Sentencing

Indeterminate Sentencing:

Indeterminate Sentencing

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.

Indeterminate Sentencing

"Good Time"

The offender can receive credit for good behavior and thereby reduce the amount of time he spends incarcerated.

The behavior of the offender during incarceration is the main determining factor in release decisions.

Bureau of Justice Statistics

1999 Study

Structured Sentencing:

Structured Sentencing

Developed, in part, as a response to the disparity in sentencing of the
indeterminate model.

Structured Sentencing

proportionality

equity

Proportionality:

Equity:

Social Debt:

Determinate Sentencing:

Structured Sentencing

Offender is given a fixed sentence length.

The sentence can be reduced by "good time."

Presumptive Sentencing:

Sentencing Guidelines

First states to approve use of sentencing

guidelines:

Sentencing Guidelines

Most state sentencing guidelines allow for mitigating factors and/or aggravating factors.

Mitigating Factors:

Mitigating Factors:

Aggravating Factors:

Aggravating Factors:

Mandatory Sentencing:

Truth in Sentencing:

Structured Sentencing

Violent Crime Control and Law

Enforcement Act of 1994

Federal Sentencing Guidelines

U.S. Sentencing Commission

Mistretta v. U.S. (1989)

U.S. Supreme Court held that Congress had acted appropriately in establishing the Sentencing Commission and that the guidelines could be applied in federal cases nationwide.

Career Offender:

Deal v. U.S. (1993)

Deal was convicted in a single judicial proceeding of 6 counts of carrying and using a firearm in a series of bank robberies

He had no previous convictions

He was sentenced to 105 years in prison as a career offender.

Deal v. U.S. (1993)

Court rejected his appeal stating, "We see no reason why the defendant should not receive such a sentence, simply because he managed to evade detection, prosecution, and conviction for the first five offenses and was ultimately tried on all six in a single proceeding."

Plea Bargaining

Federal Level

Of all federal cases, 90% are the result of guilty pleas, of which the vast majority are the result of plea negotiations.

Mitigating/

Aggravating Factors

Presentence Investigation Report

Three Types

Long form

detailed written report on the defendant’s personal and criminal history

Short form

summarizes the type of information most likely to be useful in the sentencing decision

Verbal report

made by the investigating officer based on field notes

Presentence Investigation Report

Ten Major Informational Sections

Presentence Investigation Report

Ten Major Informational Sections

Presentence Investigation Report

Federal law mandates a presentence report in federal court.

Felony Sentencing in
Federal and State Courts

Court-ordered Prison Commitments, 1968-1998

The Victim

consideration of victim and their survivors

victims’ rights movement

The Victim

Restorative Justice –

The Victim

Victim impact statements – description of losses, suffering, and trauma experienced by victims or their survivors.

Sentencing Options: Imprisonment

Bureau of Justice Statistics reports:

Sentencing Options: Imprisonment

Bureau of Justice Statistics reports:

Sentencing Options: Fines

Fines are one of the oldest forms of punishment

Fines fill state coffers.

Fines deny criminals the proceeds of their criminal activity.

Fines are inexpensive to implement.

Sentencing Options: Fines

Fines are one of the oldest forms of punishment

Fines are a mild form of punishment.

Offenders often serve no time.

Fines can discriminate against the poor.

Sentencing Options: Death

Sentencing Options: Death

U.S. Executions by State
1976-2001

Writ of Habeas Corpus:

Opposition to the
Death Penalty

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

Support for the
Death Penalty

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.

In re Kemmler (1890)

Death Penalty Court Cases

U.S. Supreme Court defined cruel and unusual methods of execution:

"Punishments are cruel when they involve torture or lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution."

Furman v. Georgia (1972)

Death Penalty Court Cases

Gregg v. Georgia (1976)

Death Penalty Court Cases

The Court upheld the two-step procedure requirements of Georgia’s new capital punishment law as necessary for ensuring the separation of the highly personal information needed in a sentencing decision from the kinds of information reasonably permissible in a jury trial.

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