1. Punishment and Sentencing
Chapter 13
Punishment and Sentencing

2. Past Punishments
Physical torture
Branding
Whipping
Death

3. 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

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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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.

11. 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)

12. 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

13. 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

14. 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

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

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

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

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

19. 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?

20. 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.