Cje Karolina Kremens, LL.M., Ph.D. Wojciech Jasiński, Ph.D. Department of Criminal Procedure Faculty of Law, Administration and Economics University of Wrocław Lecture 11 Sentencing Criminal Law I

Lecture CRIMINAL SANCTIONS Sentencing 1)Part of criminal law/criminal procedure? 2)Separate part of the trial? 3)Who decides about the penalty? - presiding judge - judge and lay-judges - judge and jury 4)How vast is judges’ discretion? Should and how it can be limitated?

Lecture CRIMINAL SANCTIONS Sentencing Codification of general and specific rules concerning sentencing 1)General rules: POLAND – art. 53 par. 1 CC The court passes a sentence at its own discretion, within the limits prescribed by law, ensuring that the severity does not exceed the degree of guilt, being aware of the degree of social consequences of the act, and taking into account the preventive and educational objectives that the penalty is to achieve with regard to the offender, as well as the need to develop legal awareness in society.

Lecture CRIMINAL SANCTIONS Sentencing POLAND – art. 53 par. 2 CC § 2. When passing sentence, the court will primarily take into account the motivation of the offender and the way he or she acted, whether the offence was committed together with a minor, the type and degree of the breach of duties the offender is charged with, the type and degree of any negative consequences of the offence, the features and personal conditions of the offender, his or her lifestyle before committing the offence, and his or her conduct afterwards, and in particular any efforts to redress the damage or to satisfy the public sense of justice in any way. The court will also take the behaviour of the aggrieved party into account.

Lecture CRIMINAL SANCTIONS Sentencing POLAND – art. 53 par. 3 CC When passing sentence, the court will also take into account the positive results of mediation between the aggrieved party and the offender, or any settlement they may have reached in the proceedings before the prosecutor or the court.

Lecture CRIMINAL SANCTIONS Sentencing GERMANY – art. 46 CC (1) The guilt of the offender is the basis for sentencing. The effects which the sentence can be expected to have on the offender’s future life in society shall be taken into account. (2) When sentencing the court shall weigh the circumstances in favour of and against the offender. Consideration shall in particular be given to: the motives and aims of the offender; the attitude reflected in the offence and the degree of force of will involved in its commission; the degree of the violation of the offender’s duties;

Lecture CRIMINAL SANCTIONS Sentencing GERMANY – art. 46 CC the modus operandi and the consequences caused by the offence to the extent that the offender is to blame for them; the offender’s prior history, his personal and financial circumstances; his conduct after the offence, particularly his efforts to make restitution for the harm caused as well as the offender’s efforts at reconciliation with the victim. (3) Circumstances which are already statutory elements of the offence must not be considered.

Lecture CRIMINAL SANCTIONS Sentencing 2) Specific rules of sentencing refer to: - categories of offenders (juveniles, recidivists) - categories of offences Example – art. 54 CC § 1. When passing sentence on a minor or a juvenile, the court will primarily aim at rehabilitating the offender. § 2. An offender who was under the age of 18 at the time of committing of the offence will not be sentenced to life imprisonment. 3) Catalogue of aggravating and mitigating factors

Lecture CRIMINAL SANCTIONS Sentencing guidelines England and Wales Coroners and Justice Act 2009 (legal basis for sentencing guidelines) Sentencing Council for England and Wales (legal body responsible for issuing and monitoring of sentencing guidelines)

Lecture CRIMINAL SANCTIONS Sentencing guidelines England and Wales Every court — (a)must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and (b)must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.

Lecture CRIMINAL SANCTIONS Sentencing guidelines USA United States Sentencing Commission The Commission was created by the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of Principal purposes are: (1)to establish sentencing policies and practices for the federal courts, including guidelines to be consulted regarding the appropriate form and severity of punishment for offenders convicted of federal crimes; (2) to advise and assist Congress and the executive branch in the development of effective and efficient crime policy;

Lecture CRIMINAL SANCTIONS Sentencing guidelines USA United States Sentencing Commission Principal purposes are: (3) to collect, analyze, research, and distribute a broad array of information on federal crime and sentencing issues, serving as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public.

Lecture CRIMINAL SANCTIONS Sentencing guidelines 18 U.S. Code § 3553 (b) Application of Guidelines in Imposing a Sentence.— (1) In general.— Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.

Lecture CRIMINAL SANCTIONS Sentencing guidelines In January 2005, the U.S. Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). District courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing,” subject to review by the courts of appeal for “unreasonableness”.

Lecture CRIMINAL SANCTIONS Sentencing Excluding discretion - determinate sentences A determinate sentencing system is one in which discretion in fixing the term of incarceration is withdrawn from the judge or other sentencing authority and replaced by a legislatively determined term, either fixed or narrowly variable, for each defined crime (eg. mandatory minimum sentences, and enhanced sentences).