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Chapter Sixteen Sentencing Chapter Sixteen Sentencing You have so many options when you sentence. You can put a defendant on probation, order him to be.

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Presentation on theme: "Chapter Sixteen Sentencing Chapter Sixteen Sentencing You have so many options when you sentence. You can put a defendant on probation, order him to be."— Presentation transcript:

1 Chapter Sixteen Sentencing Chapter Sixteen Sentencing You have so many options when you sentence. You can put a defendant on probation, order him to be put on work-release and go to a half-way house, or send him to an institution. But what it comes right down to is that there is no alternative that’s any good. I guess you could call it a judge’s dilemma. — Charles Halleck, Judge, Superior Court of the District of Columbia, 1976

2 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Cruel and Unusual Punishment Definite Sentence Deterrence Indefinite Sentence Indeterminate Sentence Probation Rehabilitated Suspended Sentence Key terms to understand for this chapter… KEY WORDS

3 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ OBJECTIVES After completing this chapter, you should be able to… Explain the prohibitions against cruel and unusual punishment. Define the various types of punishment. Discuss the death penalty issues. Explain differences between types of sentences. Discuss the nature of probation. Define the concept of rehabilitation. Explain the use of suspended sentences.

4 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ To understand more fully the history of punishment and its severity, we begin by discussing early societies. The social world of early mankind comprised separate isolated groups, or clans, an aggregate of families. –the eldest male was the ruler in these ancient societies If harm was done to a member of the clan by another member, it was the ruler’s task to right the wrong. –other clan members were pressed into service for assistance If committed by a neighboring clan it was a religious duty of each wronged clan member to avenge the wrong. History of Punishment

5 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Belief was that an injury to any clan member was an injury to the entire clan, usually ending with a war. If the offender could not be located, revenge could be inflicted on any other member of the neighboring clan. As time passed, avenging the wrong became more of a family responsibility, and the offended family member had first, foremost responsibility to avenge the wrong. Again, if the offender could not be located, then the revenge would be inflicted on other family members. –known as the blood feud, often brutal and usually ending in the death of the offender History of Punishment Blood Feud

6 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ When time passed without a crime’s being avenged, family members often became disenchanted with the blood feud, particularly when not personally offended. Consequently, members of the offended family became willing to accept money or property in return for not inflicting physical retaliation. Known as atonement, by the twelfth century, it had grown in popularity & the blood feud all but abolished. Atonement became a source of revenue for kings or the church, depending on the crime. History of Punishment Atonement

7 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Not all crimes could be atoned for, so the offender was required to stand trial, and if found guilty, the offender was subjected to punishment prescribed for that crime. –in many instances, the punishment was death If death was not imposed, the offender was often subjected to other forms of severe physical punishment. To escape punishment, an offender often entered a church for sanctuary from pursuers attempting to inflict punishment. –the offender was safe as long as he/she remained inside the church History of Punishment Trial

8 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Sometimes the pursuers surrounded the church and remained there for days to prevent escape, and often the pursuers tried to have the priests or clergy starve the offender into submission. Usually, priests would have nothing to do with matters that interfered with the holiness of the sanctuary. –the beginning of what became known as the benefit of clergy Punishment imposed for conviction of a crime was a mandatory sentence carried out regardless of severity. –imprisonment was not used at that time History of Punishment Protection Within a Church

9 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The imprisonment of convicted offenders was, and still is, a troublesome and expensive form of punishment. Imprisonment as a form of punishment was used at common law in England for a few minor offenses Ecclesiastical courts also imposed imprisonment on convicted clergymen in some instances. Death, mutilation, and banishment were still the most frequently imposed forms of punishment. History of Punishment Imprisonment

10 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ When a convicted person was banished from England, the offender, family & friends, were required to leave. –his property was also confiscated by the king or the churc, and banishment became another source of revenue for both As late as the early 1800s, England had more than 200 violations carrying a possible death penalty. Shortly thereafter, imprisonment and banishment to Australia were substituted for the death penalty as a form of punishment. History of Punishment Banishment

11 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ As the colonies were settled, the colonists brought much of the criminal procedure they knew in England. –retribution or vengeance was still the punishment philosophy The death penalty was frequently inflicted, in a manner far more inhumane than it had been in England. Mutilation and corporal punishment—particularly whipping—pillory, stocks & public cage were used. It is little wonder the framers of the US Constitution included the Eighth Amendment guarantee against “cruel and unusual punishment.” History of Punishment Early America

12 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ After time, the colonists began substituting prison for for the death penalty, allegedly as a more humane punishment. As retribution was still the primary force behind punishment, little consideration was given to the imprisoned offender. –prisoners often died of neglect History of Punishment Early America Punishment by a shower bath at the Auburn, New York, prison. (Source: CORBIS-NY.)

13 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ William Penn is given credit for the first improvement in prison conditions & reforms in punishment imposed. In 1681, Penn received the charter to a large tract of land, known as Pennsylvania, moved to a new city he named Philadelphia and established a government along the lines of republicanism and religious freedom. –the death penalty was abolished for all offenses but murder –about 1683, a jail was erected to confine offenders Penn had further reforms in mind, but died in 1718 before they could be completed. History of Punishment Early America - Pennsylvania

14 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Penalty reforms for convicted offenders began after the colonies achieved independence from England. –improvements were made in confinement conditions –A 1786 act provided for imprisonment at hard labor for many crimes that previously carried the death penalty Although an improvement, more reform was needed. –places of confinement soon became overcrowded, with little supervision. –there was no segregation according to sex, age, or offense –liquor was freely sold to inmates, and prostitution practiced History of Punishment Early America - Penalty Reform

15 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Each rule of conduct written over history has required a punishment established for convicted violators. –usually, the more serious the crime, the more severe the punishment –which punishments should be inflicted for each particular crime has plagued society for centuries As time passed, imprisonment became the accepted way of punishing an offender, and society turned from retaliation to the isolation philosophy of punishment. –instead of trying to get even with the offender, society attempted to protect itself by imprisonment History of Punishment Present Sentencing Procedure

16 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ When penitentiaries were first built in the US, they were built with the idea of confining the offenders in maximum security to isolate them from society Offenders, called inmates, spent much time locked in their cells, and required to wear a distinctive uniform. –for a long time, the uniform was made of black & white striped material Many of the penitentiaries built in the late 1800s and early 1900s are still in use. In most instances, there were no guidelines to assist in determining how long an offender should be confined. History of Punishment Present Sentencing Procedure

17 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Early in our history, sentencing of an offender to was solely the responsibility of the trial judge, and much depended on the judge’s attitude & philosophy. When legislators began to establish penalties for each crime, they concentrated on the felony. There is considerable difference among states on the sentences that may be imposed. –in some states, minimum and maximum number of years an offender must serve are defined for conviction of a crime –in other states, the law sets forth the maximum length of imprisonment that may be imposed History of Punishment Isolation

18 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ While imprisonment became one form of punishment, it is not the only penalty that may be imposed on a convicted offender. The types of sentences possible for criminal offenders are set forth in the codes of the various states. History of Punishment Other Penalties Sherelle Purnell, eighteen, of Salisbury, Maryland, wearing a sign reading “I Was Caught Stealing Gas” in front of the Tiger Mart gas station she stole from in Salisbury, Maryland. Though Wicomico County District Court Judge D. William Simpson authorized the punishment, the unconventional sentence was the brainchild of Tiger Mart store manager Jan Phipps.

19 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Penalty is still referred to as punishment in most codes, and may be one or a combination of the following: imprisonment; fine; probation; suspended sentence; and in some states, the death penalty. –removal from, and disqualification to hold public office are also forms of punishment in some states In a few jurisdictions, the terms punishment and sentence imply imprisonment. –thus, probation is not considered to be a sentence but rather a disposition of the case History of Punishment Other Penalties

20 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ In most jurisdictions, the term sentence is the judgment of the court after conviction. Sentence is the final disposition of the trial, whether by imprisonment, suspended sentence, probation, or fine. –punishment is sometimes more closely associated with imprisonment than are other forms of sentence –technically, punishment means any unpleasantness the convicted offender may suffer Restrictions on the offender: imprisonment, suspended sentence, or probation, are forms of unpleasantness. –as is financial hardship imposed by fines History of Punishment Other Penalties

21 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ As reformists continued to study punishment, its purpose shifted from isolation theory to deterrence. –the movement to rehabilitate the offender followed The isolation approach has not been abandoned, as there are inmates from whom society is safe only during their confinement. –neither deterrence nor rehabilitation is applicable to some hardened criminals Whatever sentence is imposed, its primary purpose is for the protection of society. History of Punishment Deterrence

22 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ On a misdemeanor conviction, statutes of most states provide the penalty imposed shall not exceed one year of imprisonment and/or a $1,000 fine. –most jurisdictions permit the judge to suspend the sentence and place the offender on probation, grant probation with provision that a certain amount of time must be spent in imprisonment; or merely to impose a fine The judge may impose a sentence for one year on multiple charge and have them run consecutively. –a consecutive sentence must be served before the next begins –concurrent sentences run at the same time Types of Sentencing and Sentences Misdemeanor

23 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ In a majority of the states, it is still the prerogative of the trial judge to impose the sentence. In some states, the jury will impose the sentence In a few states, a jury must be impaneled to impose the sentence even though a jury trial has been waived. Generally, depending on jurisdiction, types of sentence or imprisonment that may be imposed are –definite sentence –indefinite sentence –indeterminate sentence Types of Sentencing and Sentences Felony

24 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ As imprisonment began to be substituted for other punishment, there were few guidelines to assist judges. As retribution, or social retaliation, was the primary purpose, lengthy sentences were often imposed. –some judges became arbitrary & discriminatory in sentencing To overcome this, legislation was passed in most states setting forth a prescribed, or a definite mandatory sentence, required on conviction of a particular offense. Judges no longer had any control over the length of time to be served. Types of Sentencing and Sentences Definite Sentence

25 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ On conviction, the mandatory sentence was imposed, and the offender required to serve that period of time. –after the prescribed period, the offender was released back into society, but never prior to that time The first major change came with the introduction of the conditional release, where a few states passed legislation permitting time off from the definite sentence for good behavior. Good behavior principally consisted of complying with prison rules. Types of Sentencing and Sentences Definite Sentence

26 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The definite sentence was severely criticized by reformists as being inflexible, and did not permit any aggravating or mitigating factors. Since the procedure was inflexible, judges often dismissed a charge rather than impose a severe definite sentence when there were mitigating circumstances. –an offender was then permitted to go unpunished Because of the inflexibility of the definite sentence, it has all but disappeared from the justice system. Types of Sentencing and Sentences Definite Sentence

27 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ As the definite sentence lost favor, it was replaced by the indefinite sentence, in some states referred to as the indeterminate sentence or as the determinate sentence. With appearance of the indefinite sentence, legislative bodies passed statutes prescribing maximum penalties that could be imposed on the convicted offender. Under the indefinite sentencing procedure, imposition of the sentence was returned to the judge in most states. –a few states provided for the jury to impose the sentence The theory was that it enabled the sentence to fit the offender and not the crime. Types of Sentencing and Sentences Indefinite Sentence

28 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ To assist in arriving at an equitable sentence many judges require a presentence investigation, usually conducted by a member of the probation department. –generally includes such matters as the offender’s family status, educational background, work experience, and prior criminal record and circumstances surrounding the crime Even with the assistance of presentence report, the sentence still involves a difficult decision for the judge. Types of Sentencing and Sentences Presentence Investigations

29 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Jury sentencing is a carryover from colonial days, when colonists had frequent unpleasant experiences with royal, as well as postindependence judges. –who were arbitrary & discriminatory in their sentences Juries generally do not have access to any presentence investigative material, and when imposing sentence, it is often just a calculated guess on what is appropriate. Often juries will be extremely harsh or very lenient in sentencing, because of deep emotional involvement with a crime committed in their community. Types of Sentencing and Sentences Juries Imposing Sentence

30 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Getting a jury to arrive at an equitable sentence can be more difficult than reaching a unanimous verdict. Whether a sentence is imposed by a judge or a jury, it will stipulate the exact number of years to be served. With the indefinite sentence, the law prescribes either a maximum amount of time that may be imposed or a minimum and a maximum From this indefinite period of time, the judge or jury will decide upon a definite amount of time for the sentence. Types of Sentencing and Sentences Juries Imposing Sentence

31 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Passing of time & growing interest in rehabilitation, has made the indefinite sentence has even more so, becoming known as the indeterminate sentence. –because, after serving a portion of the sentence, the inmate may become eligible for parole, shortening time to be served The true indeterminate sentence removes sentencing of a prescribed number of years from a judge or a jury. –length of the sentence is determined by a board or committee The primary purpose of the indeterminate sentence is to permit the sentence to more nearly fit the offender and to assist in the rehabilitation process. Types of Sentencing and Sentences Indeterminate Sentencing

32 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Determining when an offender is rehabilitated and no longer a threat to society is almost impossible. –some never reach that point and serve the maximum time However, each inmate is entitled eventually to have the length of his or her sentence determined by the board. –generally, the hearing will not be held until the inmate has served six months to one year of the maximum time The board will consider the general attitude of the inmate toward society, law, and authority as expressed by the inmate in the appearance before the board. Types of Sentencing and Sentences When is an Offender Rehabilitated

33 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ After a review of the matter, the board will endeavor to arrive at an equitable length of time to be served. If the inmate demonstrates an inability to conform to prison regulations or makes no attempt at reform, the board has authority to reset the length of the sentence. –even requiring the inmate to serve the maximum time It has been interpreted that an offender sentenced under the indeterminate sentence procedure is sentenced to the maximum prescribed. –and any time less than maximum is based on rehabilitation Types of Sentencing and Sentences When is an Offender Rehabilitated

34 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The indeterminate sentence has been attacked by inmates on the allegation that it violates due process. –because of its uncertainty, and, as such, is cruel and unusual punishment Courts have held that as long as a minimum and a maximum sentence prescribed by the legislature are not disproportionate to the offense committed, the sentence is not cruel and unusual. –and inmate reformation permits the maximum to be reduced Types of Sentencing and Sentences Advantages/Disadvantages

35 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Proponents of true indeterminate sentencing procedure allege a board is in a better position than a judge to determine the sentence that should be imposed. –the board comes in contact with all convicted offenders who are imprisoned –whereas judges are in contact with only those convicted in their particular court The board is able to view the inmates’ progress in an overview as one large unit and follow this progress during confinement as well as parole. –the board can weigh what sentence is likely equitable Types of Sentencing and Sentences Advantages/Disadvantages

36 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Benefit of clergy was carried a step further in England during the thirteenth and fourteenth centuries, and may be called the forerunner of the suspended sentence. Under certain circumstances, an accused was permitted to have a trial transferred from the king’s court to the ecclesiastical court. –the offender was able to avoid the death penalty, but still might be imprisoned for life Philosophy of the right of benefit of clergy was brought to America by the colonists. Types of Sentencing and Sentences Suspended Sentence and Probation

37 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The suspended sentence is recognized in our system of justice today, in most instances coupled with probation. –in many jurisdictions, there cannot be a suspended sentence without probation being imposed for a prescribed period –in jurisdictions where suspended sentence is permitted without probation, the judge suspends imposing a sentence The offender is returned to society, with no restrictions other than good behavior. –if the offender breaks the law again, the judge may impose a sentence on the original charge as well as the new charge if the offender is convicted Types of Sentencing and Sentences Suspended Sentence and Probation

38 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Probation permits the convicted offender to remain free from custody, but the offender is under supervision of a person who assists him/her in leading a law-abiding life. –usually a public officer known as a probation officer The primary purpose of the suspended sentence and probation is to rehabilitate the offender. When the convicted offender is granted a suspended sentence or probation, it is assumed that there is no threat to society by the offender’s remaining free from custody. Types of Sentencing and Sentences Suspended Sentence and Probation

39 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ “The toughest part of this job is sentencing. I’ve lost all kinds of sleep over sentences. I find it dreadful.” —Malcolm Muir, Judge, US District Court, 1982 The Death Penalty This photo shows the “death chamber” at the Texas Department of Criminal Justice Huntsville Unit in Huntsville, Texas. The executioners room is behind the glass window, and the injection is administered via tubes that pass through the opening in the wall.

40 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Heated arguments have taken place over the years concerning the merits of the death penalty. The Death Penalty Source: Death Penalty Information Center reprinted in the Washington Post, March 8, 1995, p. A15. –those who oppose it do so on grounds it has no place in a civilized society –equal numbers contend the death penalty is a deterrent and as such should be retained

41 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The question of whether or not the death penalty is cruel and unusual punishment in violation of the Eighth Amendment was placed before the US Supreme Court in the case of Furman v. Georgia. The Court held the death penalty as such was not cruel and unusual punishment but that the indiscriminate manner in which it was applied made the death penalty cruel and unusual punishment in violation of the Eighth Amendment. The Death Penalty Cruel & Unusual Punishment - Furman

42 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The Court in Furman indicated that perhaps, if the death sentence was to be made mandatory for all of equal guilt, the sentence would not be discriminatory. –and thus not violate the Eighth Amendment As a result, many legislatures passed statutes making death mandatory on conviction for certain crimes. This mandatory sentence took from the jury or judge the right to determine the sentence to be imposed on conviction for crimes previously carrying the alternate sentence of life imprisonment or death. The Death Penalty Cruel & Unusual Punishment - Furman

43 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ However, the Court, in Woodson v. North Carolina,3 overruled as cruel and unusual punishment a North Carolina statute making the death penalty mandatory. –the Court held the statute did not allow any consideration to be given to the character and record of the offender The Court stated, –“Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development.” Consequently, state statutes making the death penalty mandatory had to be revised to conform with Woodson. The Death Penalty Cruel & Unusual Punishment - Woodson

44 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Statutes were then passed allowing consideration aggravating or mitigating circumstances. A Georgia statute was upheld by the Supreme Court in Gregg v. Georgia, where the Court stated: –“…imposition of the death penalty for the Crime of murder has a long history of acceptance.” –“ …common-law rule imposed a mandatory death sentence on all convicted murderers.” –“…For nearly two centuries, this Court, repeatedly and often expressly, has recognized that capital punishment is not invalid per se.” The Death Penalty Cruel & Unusual Punishment - Gregg

45 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Dissenting justices in the Furman case stated: –“Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution.” –“It implies there something inhuman and barbarous, something more than the mere extinguishment of life.” –“The cruelty against which the Constitution protects a convicted man is cruelty in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.” The Death Penalty Cruel & Unusual Punishment - Furman

46 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ In Gregg decision, the Court made some interesting comments on the death penalty as a deterrent: –“When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they deserve, then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law.” –“Retribution is no longer the dominant objective of the criminal law, but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men.” The Death Penalty Cruel & Unusual Punishment - Gregg

47 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ In Gregg decision, the Court made some interesting comments on the death penalty as a deterrent: The Death Penalty Cruel & Unusual Punishment - Gregg –Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. –Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view.

48 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ –We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others the death penalty undoubtedly is a significant deterrent. In Gregg decision, the Court made some interesting comments on the death penalty as a deterrent: The Death Penalty Cruel & Unusual Punishment - Gregg

49 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The mandatory death penalty on conviction of certain crimes made jurors aware that voting for a guilty verdict, was voting for execution of a human being. Many jurors had reservations about the death penalty, and when it came time to vote, could not bring themselves to vote guilty, irrespective of the evidence. –this inability caused many trials to end with hung juries To overcome this problem, many state legislatures enacted statutes setting forth alternate sentences of life imprisonment or death on conviction of certain crimes. The Death Penalty Alternate Sentencing

50 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The statutes further provided the jury was to make the decision about which penalty was to be imposed. –a juror could still vote for a guilty verdict, but vote for life imprisonment after the conviction In 2002, the Supreme Court held that determination about the existence of “aggravating factors” that make a convicted murder eligible for the death penalty must be made by the jury and not the judge. During the trial or sentence determination hearing, the jury must consider both aggravating and mitigating circumstances, and weigh them against each other. The Death Penalty Alternate Sentencing - Circumstances

51 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ When the alternate sentence was made possible, one of two procedures was generally followed. –in some states, a trial was first held to determine guilt or innocence of the accused –if an accused was found guilty, a second trial was held to determine the sentence –in other states, only one trial was held, and the jury would deliberate first on guilt or innocence, and, if the jury voted a guilty verdict, they would then deliberate on the penalty Both have received the sanction of the Supreme Court. The death penalty may be imposed in approximately two-thirds of the states and within the federal system. The Death Penalty Alternate Sentencing - Procedures

52 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ In most jurisdictions, a death penalty is automatically appealed to that jurisdiction’s highest appellate court. –the court will determine if the conviction should be affirmed and if the death penalty is justified The appellate court may affirm the conviction but not the death penalty, and the case will be returned to trial court for revision of the sentence. –or the life sentence may be imposed automatically In dissenting opinions in Gregg, Justices Marshall and Brennan were adamant in their contention that the death penalty is a violation of the Eighth Amendment. The Death Penalty Alternate Sentencing - Appeals

53 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The Death Penalty This photo is showing a view of Florida’s electric chair. The chair, built from oak by prison inmates in 1923, was nicknamed “Old Sparky.” Before then, most executions were by hanging under the direction of county sheriffs. Since then, 233 men have been executed by using Old Sparky. I think a judge’s education is very imperfect when it comes to the sentencing process. —Edward Davis, former Chief of Police, Los Angeles, 1973

54 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Appellate courts have at times held a that particular sentence is excessive and disproportionate to the crime. –in such an instance, the sentence will be set aside and the case referred to the trial court for resentencing Excessive punishment is not easily determined and often rests largely upon the personal viewpoints. In Coker v. Georgia, the US Supreme Court held that the death penalty for the rape of an adult woman was excessive and disproportionate to the crime. The Death Penalty Excessive Punishment for Rape

55 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The Coker Court stated the following: –“We do not discount the seriousness of rape …It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy” –“Short of homicide, it is the “ultimate violation of self.” –“Because it undermines the community’s sense of security, there is public injury as well.” –“Rape is without doubt deserving of serious punishment, but …it does not compare with murder, which does involve the unjustified taking of human life.” The Death Penalty Excessive Punishment for Rape - Coker

56 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The Coker Court stated the following: –“Life is over for the victim of the murderers; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.” –“We have the abiding conviction that the death penalty, which “is unique in its severity and irrevocability,” is an excessive penalty for the rapist, who, as such, does not take human life.” The Death Penalty Excessive Punishment for Rape - Coker

57 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Justice Powell, in the majority, dissented in one respect: –“There is extreme variation in …culpability of rapists.” –“The deliberate viciousness of the rapist may be greater than that of the murderer.” –“Some victims are so grievously injured physically or psychologically that life is beyond repair.” –“Thus it may be that the death penalty is not disproportionate punishment for the crime of aggravated rape.” –“…it has not been shown that society finds the penalty disproportionate for all rapists. –“…I would not prejudge the issue.” The Death Penalty Excessive Punishment for Rape - Coker

58 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Powell’s statement indicates that if legislation were passed making it possible to impose the death penalty in aggravated rape cases, such a penalty might not be declared excessive. The Coker decision, in which four justices declared the death penalty excessive in all instances except murder, may make the passage of such legislation difficult. –even if such legislation were passed, there is no assurance the Supreme Court would not hold the death penalty excessive The Death Penalty Excessive Punishment for Rape - Coker

59 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Chief Justice Burger and Justice Rehnquist expressed concern in Coker case over the majority’s decision: –“On December 5, 1971, Coker raped and then stabbed to death a young woman. …later Coker kidnapped and raped a second young woman. …beat her with a club, and dragged her into a wooded area where he left her for dead.” –“…one and one-half years later, …escaped from the state prison …raped another 16-year-old woman in the presence of her husband, …abducted her from her home, and threatened her with death and serious bodily harm.” –“The Court today holds that the State of Georgia may not impose the death penalty on Coker.” The Death Penalty Excessive Punishment for Rape - Coker

60 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Chief Justice Burger and Justice Rehnquist expressed concern in Coker case over the majority’s decision: The Death Penalty Excessive Punishment for Rape - Coker –“In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape.” –“…moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist.” –“…the Court’s holding assures that petitioner (Coker) and others in his position will henceforth feel no compunction whatsoever about committing further rapes” –“In that respect, today’s holding does even more harm than is initially apparent.”

61 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Chief Justice Burger stated that some justices of the Court are inclined to interject their own feelings. –by restricting implementation of the death penalty through strict imitations of its use This has also been manifested by some state supreme court justices in strict interpretation of Witherspoon. In 2007 and 2008, several citizen groups pushed for the Supreme Court to reconsider the possibility of the death penalty for rape. –the issue is currently being considered by the Court The Death Penalty Excessive Punishment for Rape

62 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Since Coker was handed down, the Supreme Court has invalidated the death penalty in two other landmark cases, establishing new approaches to limitations. –in Godfrey v. Georgia, the Court held the sentence of death amounted to cruel and unusual punishment, even though two murders had been committed –in Enmund v. Florida, Enmund alleged he did not participate in the actual killing, had no intent to kill (during a robbery), and the death penalty was disproportionate to the crime –the Supreme Court agreed with Enmund that the death penalty in his instance was cruel and unusual punishment The Death Penalty Subsequent Legislation

63 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ In Tison v. Arizona, the Court modified the intent set forth in Enmund, stating that while the defendants had no specific intent to kill the victims, their mental state was one “reckless disregard for human life”. –and the death penalty was not cruel and unusual punishment under the circumstances Even though an appellate court reverses the death penalty, the offender is not necessarily set free. –in most instances, the sentence will be reduced to life imprisonment, or life without the possibility of parole The Death Penalty Subsequent Legislation - Tison v. Arizona

64 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ A life sentence without the possibility of parole may also be changed to life imprisonment by a governor at any time. Under a life sentence, most offenders are eligible for parole after serving about twelve years. That possibility does not mean that the offender will be paroled after that period –an offender sentenced to life usually does not serve until death The Death Penalty Subsequent Legislation

65 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ In 2002, the Supreme Court held, six-to-three, that the Constitution’s ban on cruel and unusual punishment bars the execution of mentally retarded people. –a turnaround for the Court that thirteen years earlier found no reason to bar the execution of the mentally retarded Atkins v. Virginia case involved Daryl Atkins, who had an I.Q. of 59, sentenced to death for a murder and a robbery committed when he was eighteen years old. –the majority noted most states prohibit capital punishment altogether or ban its use against the mentally retarded The Death Penalty Retarded Defendants - Atkins v. Virginia

66 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The Supreme Court also noted that public opinion has demonstrated a steadily dwindling public enthusiasm for capital punishment in general. The decision failed to provide guidance to the states on what constitutes mental retardation for the purposes of the capital punishment prohibition. The Death Penalty Retarded Defendants - Atkins v. Virginia

67 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ While the origin of fines as a form of punishment is lost in history, their early use served a dual purpose. –money or property was taken from the wrongdoer and paid to the victim of the crime or to his or her relatives –the fine was also a source of revenue for the king or church As other means of reimbursing the victim became available, the fine was no longer used for that purpose. –but levied as a source of revenue for the government Use of fines in serious cases has dwindled considerably since the Supreme Court Williams v. Illinois decision. –but still employed as a form of punishment for minor crimes Fines

68 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Most state statutes provide for imprisonment plus a specific money amount that can be imposed as a fine. –judges were able to impose a maximum prison time plus a fine If unable to pay the fine, the offender was imprisoned and “worked out” the fine by being given credit in a prescribed daily amount. In Williams v. Illinois, the Supreme Court held that imprisoning someone indigent & unable to pay a fine, beyond the maximum imprisonment prescribed by law, was in violation of the Fourteenth Amendment. Fines Williams v. Illinois

69 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Facts show that Williams was convicted of petty theft and received the maximum sentence provided by law. –one year imprisonment and a $500 fine –Williams was also taxed $5 court costs The judgment as permitted by Illinois statute, directed that… –“if Williams was in default of payment of the fine and court costs at the expiration of the one-year sentence, he should remain in jail pursuant to the Illinois Criminal Code to work off the monetary obligations at the rate of $5 per day.” Fines Williams v. Illinois

70 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The Supreme Court, in Williams, stated the following: –“We conclude that when the aggregate imprisonment exceeds the maximum period …and results directly from an involuntary nonpayment of a fine …we are confronted with an impermissible discrimination which rests on ability to pay, and accordingly, we reverse.” –“It bears emphasis that our holding does not deal with a judgment of confinement for nonpayment of a fine in the familiar pattern of alternative sentence of “$30 or 30 days.” –“We hold only that a state may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine.” Fines Williams v. Illinois

71 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Some appellate courts contend alternative penalties results in different treatment for rich & poor offenders. The penalty inflicted by “$30 or 30 days” depends on the offender’s financial ability and personal choice. –if an offender chooses & is able to pay the fine, imprisonment may be avoided –if he/she chooses imprisonment, the fine may be avoided –if unable to pay the fine, imprisonment cannot be avoided An indigent offender has no choice, and alternative penalties work as a violation of the Equal Protection Clause. Fines

72 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ To date, the alternative penalty procedure has not disappeared from the justice system, and fines will continue to be imposed as a form of penalty for some time to come. Fines

73 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ Blood feuds resulted when it became a family responsibility to avenge a wrong. Imprisonment as punishment was not used in early English history. Banishment was one of the first forms of punishments. The colonies permitted the use of whipping as a punishment. Today, imprisonment is one of the most common forms of punishment. Important topics for this chapter… SUMMARY

74 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ In most states, the judge determines the sentence. In a few states, like Texas, the defendant may choose to be sentenced by a jury. Most states require a presentence investigation prior to the imposition of a sentence for a felony conviction. Probation is one of the most popular forms of punishment today. The US Constitution prohibits cruel and unusual punishments. Important topics for this chapter… SUMMARY (cont.)

75 Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ The death penalty is considered excessive punishment for the crime of rape. The use of fines as punishment has dwindled since the Williams v. Illinois case. Important topics for this chapter… SUMMARY (cont.)

76 Chapter End


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