Punishment and Sentencing Chapter 13 Punishment and Sentencing

Past Punishments Physical torture Branding Whipping Death

Historical Precedents Banishment and exile in Greek and Roman societies Blood feuds settled offenses in the Middle Ages Forfeiture of land and property was common during the feudal period Corporal punishment, torture and death penalty used to control the criminal poor

Basic Sentencing Strategies (Models) Indeterminate Sentencing Determinate Sentencing Structured Sentences Mandatory Minimum

Indeterminate Sentence Based on a treatment philosophy which therefore needs to be “fitted to the offender” Recognition of the offender’s eventual return to society; focus needs to be on self-improvement This is still the dominant form of sentencing used in the United States

Indeterminate Sentence (cont.) Sentence has a minimum & maximum Variations Judge sets minimum & maximum Legislature sets minimum, judge sets maximum Inmate can earn time off for good behavior Early release but continued supervision

Determinate Sentencing In its original form: Legislature would set maximum sentence for an offense, e.g., robbery might be 20 years Judge could then select any term within the maximum based upon his/her evaluation of the case When the duration of the sentence was complete, the prisoner was released Major drawback was sentencing disparity

Structured Sentencing A new form of determinate sentencing Based on the just desserts philosophy and justice model Sentence based on the seriousness of the offense Guiding philosophy is that sentences should be fair and equal

Structured Sentencing (cont.) Legislature sets a presumed sentence Judge must justify deviations from the legislature’s presumption Judge may consider: Aggravating circumstances Mitigating circumstances Discretionary parole abolished

Structured Sentencing Guidelines Crimes are placed in a severity category. Criminals are placed in a category based on their criminal history. Using (a) severity and (b) criminal history, legislature mandates sentences which judges then follow. Systems differ and some allow judicial modification based upon specified criteria.

Do Sentencing Guidelines Work? Some studies show that the effects of racial and other non-legal factors have been reduced Some studies show that racial and other non-legal factors have not been reduced effectively (e.g., minorities are more likely to have juvenile records which may be an aggravating factor)

Mandatory Minimum Sentences Bars judicial discretion May exclude probatio May exclude parole Plea bargaining, dismissals, and “under charging” used to get around it May cause more delays in system May increase prison population even more

Sentencing Factors Severity of the offense Offender’s prior criminal record Whether violence was used Whether weapons were used Whether the crime was committed for money

Facts about Capital Punishment More than 14,500 executions since 1608 Most executions for murder & rape Supreme Court limits use to 1st degree murder with aggravating circumstances Federal and state statutes list other crime

Who’s on Death Row? Approximately 3,500 people 98% male Average age is 34 Completed 11th grade Not married

Arguments for the Death Penalty Incapacitation Deterrence Moral correctness Proportionality Public opinion Unlikely chance of error

Arguments Against the Death Penalty Unfair use of judicial & prosecutorial discretion Serious criminals escape punishment Misplaced vengeance Does not deter Possibility of error

Arguments Against the Death Penalty (cont.) Always a hope of rehabilitation Racially biased Brutal Expensive and unnecessary

Legal Issues in the Death Penalty Is the death penalty itself cruel and unusual, or is its application? Can age and mental capacity be used to militate against the death penalty? Does the use of “death qualified juries” bias the process against the defendant? Who is better qualified to decide the death penalty – judge or jury?

Does the Death Penalty Deter Murder? Considerable empirical research has been carried out on the effectiveness of capital punishment as a deterrent, especially when compared to life imprisonment. These research methods have traditionally been used: Immediate-impact studies Time-series analysis Contiguous-state analysis Using these three methods over a 60-year period, most researchers have failed to show any deterrent effect of capital punishment.