1. Sentencing Today 8th Am Look at text p97
The Eighth Amendment protects defendants rights
Before TRIAL and
After CONVICTION (= when a defendant admits guilt or is found guilty at trial)

2. Sentencing At a sentencing hearing:
the prosecution presents evidence of aggravating factors
the defence presents evidence of mitigating factors
the judge considers the presentence report
the judge hands down the sentence
If the defendant is convicted of a misdemeanour, a minor crime, he might be sentenced immediately.
However, if he is convicted of a felony, a serious crime, the judge needs to consider the sentence more carefully.

3. Sentencing objectives
Rehabilitation
Deterrence
Incapacitation
Retribution
Sentencing objectives
The four main objectives of sentencing are:
“Rehabilitation – addressing the factors which led to the offending behaviour, focus on allowing the offender to re-enter society and to become a useful member of society.
“Deterrence –deter people from committing crimes by demonstrating that they will be punished
. • “Incapacitation – protecting society
• “Retribution – punishing offenders
2) In your opinion, which is the most important of the four sentencing objectives?
Which ones are most associated with the US justice system?

4. I:The Eighth Amendment
The 8th amendment forbids “cruel and unusual punishment”.
Incorporated in 1962
The 8th amendment forbids “cruel and unusual punishment”.
Initially this was introduced to prevent particularly gruesome (horrible) types of execution, such as burning at the stake or crucifixion.
Incorporated in 1962 (during the Warren Court) - means that it binds the states or is binding on the states or the states are bound by it – also means that the US Supreme Court defines how it is interpreted .

5. The “cruel and unusual punishment” clause
How should “cruel and unusual” be defined?
The interpretation must change as society changes, to reflect society’s “evolving standards of decency” (Trop v Dulles 1958)
Only punishments considered cruel and unusual at the time that the Bill of Rights was adopted should be forbidden
The fundamental issue in relation to this clause lies in its interpretation.
When deciding if a punishment is “cruel and unusual”; over the years the court has generally accepted that the interpretation must change as society changes, to reflect society’s “evolving standards of decency” (Trop v Dulles 1958)
Consequently it looks to state legislation, jury verdicts to decide whether a "national consensus" has developed against a practice. In recent cases it has also looked at treaties and international norms.
However, this approach does not satisfy everyone – originalists on the court such as Clarence Thomas and the late Justice Scalia have a much narrower interpretation. They look at the original meaning of those who draftyed the constitution. contend that Only punishments which were considered cruel and unusual at the time that the Bill of Rights was adopted should be forbidden.

6. I. The death penalty
In Furman v Georgia (1972), the SC found that the death penalty as practiced constituted CUP
As a result states introduced a 2-stage process, whereby:
guilt is decided at trial
post-conviction, the jury decide whether D should be executed, taking into account aggravating and mitigating factors
3. What change was introduced after Furman v. Georgia (1972)? Why?
In Furman v Georgia (1972), the SC found that the DP as practiced by the states at that time constituted C+U P as
its application was arbitrary abd random since there were no clear guidelines on when it should be used
there was no logical reason why sme défendants were sentenced to death and others to prison, and there was a strong feeling that the application showed racial bias
This temporarily stopped executions
As a result states introduced 2-stage process, whereby
guilt is decided at trial
post-conviction, the sentence is decided, taking into account aggravating and mitigating factors
There are strict rules on what be taken into account as an aggravating factor, and D can only be condemned to death if an agg factor is present
For example in many states it is an aggravating factor if the murder occuurred during a felony such as a rape or robbery, or if it was murder for hire
it must be the jury who makes the decision, which is a finding of fact, about whether there is an aggravating factor
The USSC accepted this system, and executions started again. 6

7. Methods of execution
Lethal injection with a cocktail of drugs is the most common/widespread method
Problem of botched executions
Alternative execution methods
Lethal injection is the most common/widespread (répondu) method but has been challenged following botched executions (prisoner is visibly in pain or the execution takes a long time)
the use of some drugs/cocktails have been challenged following botched executions, but the USSC has not stopped their use (challenges been successful in lower courts, in some states, but never on a national level)
Some states are considering alternative execution methods – because of drug shortages, drugs used not always available, and legal challenges we just discussed

8. Who can be executed? Neither mentally retarded prisoners
nor juvenile offenders
nor offenders convicted of crimes other than murder
can be executed.
5. What limits has the U.S. Supreme Court placed on who may be sentenced to death?
Several limits preventing the execution of offenders with diminished responsibility
Neither mentally retarded prisoners
nor juvenile offenders offenders who were juveniles when they committed their offences (even if now adults)
nor offenders convicted of crimes other than murder
can be executed. (2002 and 2005 and 2008)
Theres is still some controversy about how to define mental retardation,.
You should also know that this is an ond-fashioned term, it is used in this precice legal context, but in everyday life uyou shouldn’t use – intellectual disability is preferable

9. II: Life Without Parole
Life Without Parole (LWOP) for juveniles is strictly limited
Miller v Alabama (2012)
The 8th Amendment’s CUP has also led to Life Without Parole (LWOP) for juveniles being strictly limited
Sentence = stay in prison for life > common sentence given to those who have committed murder (esp in states that don’t have the dp) or other serious crimes such as rape
The USSC has held that life without parole can only be imposed on juveniles Who have committed murder
In Miller v Alabama (2012), held that could only be imposed following examination of aggravating and mitigating facorts (i.e. not as a mandatory sentence)

10. III: Mandatory minimum sentences
Sentencing guidelines aim to increase consistency in sentencing
advisory not mandatory
Mandatory minimum sentences
introduced by many states
controversial
remove judicial discretion
The federal government and states have sentencing guidelines, giving a range of punishments for each offence, considering the aggravating and mitigating factors
aim to increase consistency in sentencing
advisory not mandatory
Mandatory minimum sentences
introduced by many states
controversial
remove judicial discretion > whatever mitigating factors exist judge must give at least the minimum sentence
In drugs cases, unfair disparity between different treatment of different drugs

11. The United States is the world's leader in incarceration— a 500% increase in the number of prisoners in America over the last forty years
In the 1970s and 80s there were a number of policy changes, including
the war and drugs, the introduction of mandatory minimums sentences and
There are about 2.2 million people currently in the nation's prisons and jails
This is not due to rising crime rates: Although the prison population has been rising, since 1993 crime rates have mostly been falling.

12. IV: Protection against double jeopardy (5th amendment)
(=being tried twice for the same offense)
D cannot be retried by the same state if he
has been acquitted (=found not guilty) by a trial jury, or
has already been convicted of the offense
Multiple punishments for a single crime are forbidden/prohibited
Finally, when we’re talking about sentencing, we must consider theProtection against double jeopardy
D cannot be retriedby the same state if he
has been acquitted (=found not guilty) by a trial jury, or
has already been convicted of the offense
Multiple punishments for a single crime are forbidden/prohibited
Punishment for multiple offenses is complicated – it can be hard to decide if someone has committed several similar crimes it can be hard to decide whether it is appropriate to treat those crimes together or separately