Dr. Terry M. Mors, Ed.D. © 2010

Mors Copyright 2010 Sentencing Sentencing—the imposition of a penalty on a convicted criminal following an impartial judicial proceeding. Most sentencing decisions are made by a judge, though in some cases, such as death penalty cases, juries are involved.

Mors Copyright 2010 Traditional Sentencing Options  Imprisonment  Fines  Probation  Death Sentencing philosophies  Form the basis for various sentencing strategies  Are intertwined with issues of religion, morals, values, and emotions

Mors Copyright 2010 Goals of Sentencing Five goals influence modern sentencing practices: 1.Retribution 2.Incapacitation 3.Deterrence 4.Rehabilitation 5.Restoration

Mors Copyright 2010 Retribution … the act of taking revenge on a perpetrator.  Early punishments were swift and immediate.  Death and exile were common punishments.  Retribution follows the Old Testament: “Eye for an eye.”  Retribution holds offenders personally responsible; they get their “just deserts.”

Mors Copyright 2010 Incapacitation …the use of imprisonment, or other means, to reduce the likelihood that an offender will be capable of committing future offenses.  In ancient times, mutilation and amputation were used to incapacitate.  Incapacitation requires restraint, not punishment.  It is popular in the United States, as evidenced by the increase in prison populations. (Some call this the “lock ‘em up” approach.)

Mors Copyright 2010 Deterrence … a goal of criminal sentencing that seeks to inhibit criminal behavior through fear of punishment.  It demonstrates that crime is not worthwhile.  Overall goal is crime prevention.  There are two types of deterrence: Specific General

Mors Copyright 2010 Deterrence Specific Deterrence Seeks to prevent recidivism—repeat offending by convicted offenders. General Deterrence Tries to influence the behavior of those who have not yet committed a crime yet may be tempted to.

Mors Copyright 2010 Rehabilitation … the attempt to reduce the number of crimes by changing the behavior of offenders.  Education, training, and counseling are some of the vehicles used.  The ultimate goal is to reduce the number of offenses.

Mors Copyright 2010 Restoration … a goal of criminal sentencing that attempts to make the victim “whole again.”  Crime is a violation of a person as well as the state.  Restorative justice addresses the needs of the victim.  Sentencing options focus primarily on restitution payments.  Vermont’s Sentencing Options Program uses reparative probation.

Mors Copyright 2010 Sentencing Different sentencing practices have been linked to each of the goals of sentencing. Two models:  Indeterminate  Determinate (fixed)

Mors Copyright 2010 Indeterminate Sentencing … A model of criminal punishment that encourages rehabilitation via the use of general and relatively unspecific sentences.

Mors Copyright 2010 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.

Mors Copyright 2010 Determinate Sentencing Offender is given a fixed sentence length.  The sentence can be reduced by “good time.”  The use of parole is eliminated.

Mors Copyright 2010 Aggravating and Mitigating Factors Aggravating  Circumstances relating to the commission of a crime that make it more grave than the average instance of that crime.  Call for a tougher sentence. Mitigating  Circumstances relating to the commission of a crime that may be considered to reduce the blameworthiness of the defendant.  Call for a lesser sentence.

Mors Copyright 2010 Presentence Investigation (PSI) Report Before sentencing, the judge may request a PSI report. PSI reports:  Provide information on the background of the convicted defendant  Are prepared by probation or parole officers  Come in three different forms: long form, short form, and verbal report  Include the PSI report writer’s recommendation for sentencing

Mors Copyright 2010 Remembering the Victim  Since the 1970s, a grassroots movement has called for greater consideration of victims and their survivors.  Today, victims’ assistance programs help crime victims understand the system and their legal rights, get counseling, file civil suits, and recoup financial losses.  Victim rights advocates want to add an amendment to the U.S. Constitution acknowledging the rights of victims to be present and heard throughout the process. Thirty-two states have amended their constitutions.

Mors Copyright 2010 Victim Compensation  Restorative justice programs emphasize offender accountability and victim reparation. They provide the basis for victim compensation funds.  All states now have legislation providing monetary payments to help certain victims with medical expenses and lost wagers.  The USA PATRIOT Act makes victims of terrorism and their families eligible for victim compensation payments.

Mors Copyright 2010 Crime Victims’ Rights Act The Crime Victims’ Rights Act is part of the Justice For All Act of It grants victims of federal crimes: 1.The right to be reasonably protected from the accused. 2.The right to reasonable, accurate, and timely notice of any public proceeding involving the crime, or any release or escape of the accused. 3.The right to be included in any such public proceeding. 4.The right to be reasonably heard at any public proceeding involving release, plea, or sentencing. 5.The right to confer with the federal prosecutor handling the case. 6.The right to full and timely restitution as provided by law. 7.The right to proceeding free from unreasonable delay. 8.The right to be treated with fairness and with respect for the victim’s dignity and privacy.

Mors Copyright 2010 Victim Impact Statements The victims’ rights movement also called for the use of victim impact statements before sentencing. These statements:  Are generally in written form  Provide descriptions of losses, suffering, and trauma experienced by victims or their survivors  Are designed to help judges make sentencing decisions

Mors Copyright 2010 The Death Penalty Capital punishment means the death penalty. It is the most extreme of all possible sanctions and is reserved only for especially repugnant crimes (known as capital offenses).

Mors Copyright 2010 The Extent of Death Penalty Statutes Capital punishment is a sentencing option is 38 states and the federal government.  States vary considerably with regard to the number of death sentences given and the number of executions.

Mors Copyright 2010 Court-Ordered Executions Carried Out in the United States,

Mors Copyright 2010 Offenders on Death Row On January 1, 2006, there were 3,373 people on death row in the United States.  98.4% male  45.4% white  10.5% Hispanic  41.8% African American  2.3% were of other races (mostly Native American and Pacific Islander)

Mors Copyright 2010 Methods of Execution  Methods of imposing death vary by state.  Most use legal injection.  Electrocution, hanging, gas chamber, and firing squad are still on the books as an option in at least one state.

Mors Copyright 2010 Habeas Corpus Review The average time before execution is 11 years. Most of the delay is due to appeals.  All death penalty cases get one automatic appeal.  Beyond that, inmates can receive more appeal by filing writs of habeas corpus,  an order directing anyone holding a prisoner to bring him before a judicial officer to determine the lawfulness of the imprisonment.

Mors Copyright 2010 Limiting Appeals In a move to reduce delays in executions, the U.S. Supreme Court:  Limited the number of appeals (McCleskey v. Zandt, 1991 & Coleman v. Thompson, 1991).  Defined standards for further appeals from death row inmates (Schlup v. Delo, 1995) Further limitations were instituted by the Antiterrorism and Effective Death Penalty Act of 1996.

Mors Copyright 2010 Abolitionist and Retentionist Positions on Capital Punishment Arguments for Retention  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. Arguments for Abolition  Innocent people have been sentenced to die (DNA now plays a role).  Sentences often changed by appeals courts.  Not an effective deterrent.  Imposition is arbitrary and discriminatory.  Far too expensive.  Reduces society to the level of the criminal.

Mors Copyright 2010 The Courts and the Death Penalty The U.S. Supreme Court defined cruel and unusual methods of execution in In re Kemmler (1890): “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.”

Mors Copyright 2010 Furman v. Georgia (1972) “evolving standard of decency” The Court invalidated Georgia’s death penalty statute on the basis that it allowed a jury unguided discretion in the imposition of a capital sentence.  Georgia, and states with similar statutes, worked quickly to modify their procedures.

Mors Copyright 2010 Gregg v. Georgia (1976) 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.

Mors Copyright 2010 Roper v. Simmons (2005) Age is a bar to execution when the offender committed the crime when he was younger than 18.

Mors Copyright 2010 Recent Court Challenges Most recent appeals challenge state’s capital punishment laws and tend to focus on the procedures in sentencing decisions. Still, most U.S. Supreme Court justices believe that the “death sentence” is fundamentally constitutional. It is the means of execution and the population of those to be executed (like age and mental inability) that are coming into question.

Mors Copyright 2010 The Future of the Death Penalty  There is little common ground between death penalty advocates and opponents.  Most people support capital punishment under certain circumstances. Support increased post-September 11 th.  The future of the death penalty likely rests with state legislatures.

Mors Copyright 2010 End/Questions?