1. Unit 7 Sentencing, Trial, Pre-Trial
Professor Jennifer Wills
Adapted from Criminal Justice Today
By Frank Schmalleger

2. Sentencing
Sentencing—the imposition of a criminal sanction by a judicial authority.
Most sentencing decisions are
made by a judge, though in some
cases, especially death-eligible
cases, juries are involved.

3. Traditional Sentencing Options
Imprisonment
Fines
Probation
Death

4. Sentencing Philosophies
Form the basis for various sentencing
strategies.
Are intertwined with issues of religion,
morals, values, and emotions.

5. What are the goals of sentencing?

6. Goals of Sentencing Five goals influence modern sentencing practices:
Retribution
Incapacitation
Deterrence
Rehabilitation
Restoration

7. 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.”

8. 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 U.S., as evidenced by the
increase in prison populations. (Some call this the
“lock ‘em up” approach).

9. 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

10. What is the goal of specific deterrence

11. What are the goals of general deterrence

12. 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.

13. 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.

14. 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.

15. Sentencing Two models: Indeterminate Determinate
Different sentencing practices have been
linked to each of the goals of sentencing.
Two models:
Indeterminate
Determinate

16. What is indeterminate sentencing?

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

18. 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.

19. Indeterminate Sentencing
The behavior of the offender during incarceration is the main determining factor in release decisions.
A few states employ a partially indeterminate sentencing model.
Judge sets maximum time.
Minimum set by law.

20. What is structured sentencing?

21. Structured Sentencing
Structured sentencing developed, in part, as a response to the disparity in sentencing of the indeterminate model.
Structured sentencing includes:
Determinate sentencing
Voluntary/advisory sentencing
guidelines
Commission-created presumptive
sentencing

22. Determinate Sentencing
… A model of criminal punishment in which an offender is given a fixed term that may be reduced by good time or earned time. Under the model, for example, all offenders convicted of the same degree of burglary would be sentenced to the same length of time behind bars.

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

24. Voluntary/Advisory Sentencing Guidelines
Recommended sentencing policies that are not required by law but serve as guides for judges.
“Sentences” are based on past practices.

25. Commission Based Presumptive Sentencing
… model of punishment that meets the following conditions:
Proper sentence is presumed to fall within the range authorized by sentencing guidelines.
If judges deviate from guidelines, they must provide written justifications.
Sentencing guidelines provide for some review, usually by an appellate court.

26. Presumptive Sentencing Guidelines
The federal government and 16 states now employ sentencing guidelines.
Guideline jurisdictions generally allow judges to take into account aggravating and mitigating circumstances.

27. What are some examples of Aggravating and Mitigating Factors.
CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc
by Dr. Frank Schmalleger Pearson Prentice Hall
Upper Saddle River, NJ 07458

28. Aggravating and Mitigating Factors
Circumstances
relating to the
commission of a
crime that may be
considered to reduce
the blameworthiness
of the defendant.
Call for a lesser
sentence.
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.

29. Federal Sentencing Guidelines
The Comprehensive Crime Control Act of 1984 established presumptive sentencing for federal offenders and addressed truth in sentencing.

30. Truth in Sentencing
… a close correspondence between the sentence imposed upon an offender and the actual time served prior to release from prison.
…an important policy focus.

31. Federal Sentencing Guidelines
The U.S. Sentencing Commission
Established under Sentencing Reform Act of
1984 and took effect in November 1987.
9 member commission set minimum
sentences for certain federal offenses
commission meets yearly to review
guidelines.

32. Federal Sentencing Guidelines
Purpose of the Guidelines is to:
Limit federal judges’ discretion
Reduce disparity
Promote consistency and uniformity
Increase fairness and equity

33. Federal Guideline Provisions
Guidelines specify a sentencing range from
which judges must choose.
Judges may depart from the guidelines in
“atypical” cases.
Aggravating and mitigating circumstances are
taken into consideration.
Guidelines are presented in a matrix-like
sentencing table.
Overlapping levels
Criminal history and offense level determine
sentence

34. The career offender receives harsher sentences.
… requires a defendant to:
Be at least 18 at time of offense
Commit a crime of violence or to traffic
in a controlled substance
Have at least two prior felony
convictions for crimes of violence or
trafficking

35. Deal v. U.S. (1993)
An offender may be adjudged, and sentenced as, a career criminal in a single hearing.
“We see no reason why the defendant should not receive such a sentence, simply because he managed to evade detection, prosecution, and conviction for the first five offenses and was ultimately tried on all six in a single proceeding.”

36. Plea Bargaining Under the Guidelines
Of all federal cases, 90% are the result of guilty pleas, of which the vast majority are the result of plea negotiations. Melendez v. U. S. (1996)—judges cannot accept plea bargains that would have resulted in sentences lower than the minimum required by law for a particular type of offense.

37. The Legal Environment of Structured Sentencing
U.S. v. Booker (2005) and U.S. v. Fanfan (2005)
examined the constitutionality of federal
sentencing practices. Two issues were addressed:
Whether fact-finding done by judges under federal sentencing guidelines violates the Sixth Amendment’s right to a jury trial, and
If so, whether the guidelines are themselves unconstitutional.
The Court found that:
In Booker, the sentence had been improperly enhanced on the basis of facts found solely by a judge.
The guidelines themselves are not unconstitutional, provided that they are no longer mandatory.

38. Mandatory Sentencing
Mandatory sentences are a form of structured sentencing that allows NO leeway in the sentence required for a crime.
Takes away judicial discretion
Results in less plea-bargaining and
more trials.
Have led officials to make earlier and
more selective arrest, charging, and
diversion decisions.

39. Three Strikes Laws
Some states have “Three Strikes Laws,” which require mandatory sentences (sometimes life without parole) when convicted of third serious felony.
The intent is to deter known and potentially violent offenders and to incapacitate repeat criminals for long periods of time.

40. States that have 3 strikes laws
Arkansas 1995 California 1994 Colorado 1994 Connecticut 1994 Florida 1995 Georgia 1994 Indiana 1994 Kansas 1994 Louisiana 1994 Maryland 1994 Montana 1995 Nevada 1995 New Jersey 1995 New Mexico 1994 North Carolina 1994 North Dakota 1995 Pennsylvania 1995 South Carolina 1995 Tennesee 1994 Utah 1995 Vermont 1995 Virginia 1994 Washington 1993 Wisconsin 1994
CRIMINAL JUSTICE TODAY, 10E © 2009 Pearson Education, Inc
by Dr. Frank Schmalleger Pearson Prentice Hall
Upper Saddle River, NJ 07458

41. Innovations in Sentencing
Some judges are paying closer attention to alternative sentencing strategies.
Judges in certain jurisdictions have begun to use the wide discretion in sentencing available to them and impose truly unique sentences, many of which involve shaming.

42. Presentence Investigation (PSI) Report
PSI Reports provide judges with
the backgrounds on convicted
defendants awaiting sentencing.
Typically, prepared by probation or
parole officers.
Include a sentencing recommendation.

43. Remembering the Victim
A grassroots movement began in the 1970s.
Today, victims’ assistance programs help victims understand the system and their rights, get counseling, file civil suits, and recoup financial
losses.
Victim rights advocates want to add an amendment to the U.S. Constitution. 30 states have amended their constitutions.

44. Victim Compensation
Restorative justice programs provide the basis for victim compensation funds.
States have legislation providing monetary payments to help certain victims.
The USA PATRIOT Act provides compensation for victims of terrorism and their families.

45. Crime Victims’ Rights Act
The Crime Victims’ Rights Act is part of the Justice
For All Act of It grants victims of federal crimes
the right to:
Be reasonably protected from the accused.
Reasonable, accurate, and timely notice of any public proceeding involving the crime, or any release or escape of the accused.
Be included in any such public proceeding.
Be reasonably heard at any public proceeding involving release, plea, or sentencing.
Confer with the federal prosecutor handling the case.
Full and timely restitution as provided by law.
Proceeding free from unreasonable delay.
Be treated with fairness and with respect for the victim’s dignity and privacy.

46. 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.

47. Sentencing
Sentencing is essentially a risk management strategy designed to protect the public while serving the ends of retribution, incapacitation, deterrence, rehabilitation, and restoration. Just as the goals of sentencing vary, so do the types of sentences. Different goals mandate different sentences.

48. Traditional Sanctions
There are four traditional sanctions:
Fines
Probation
Imprisonment
Death
A judge’s discretion to choose the sanction
type varies depending on the structure of
sentencing used within that particular
jurisdiction.

49. Sentencing Options: Imprisonment
Bureau of Justice Statistics (2004) reports:
In 2002, there were 1,051,000 people convicted of felonies in state courts and 63,217 in federal courts.
41% received active prison terms, with an
average length of 4.5 yrs.
28% received jail sentences with an average
length of 7 months.
31% were given straight probation, with an
average sentence of 38 months.
25% were ordered to pay a fine.

50. Court-ordered Prison Commitments, 1960-2002
Bureau of Justice Statistics, 2004

51. Fines
Fines are one of the oldest forms of sentencing. Fines may be used alone or in combination with another penalty. More than $1 billion in fines are collected nationwide each year.

52. Fines Arguments For Arguments Against Too mild of a Lower tax burden
Fill state coffers
Lower tax burden
Deny criminals the
proceeds of their
criminal activity.
Inexpensive to
implement.
Can be made
proportionate to the
severity of the offense.
Arguments Against
Too mild of a
punishment.
Offenders often serve no
time.
Discriminate against the
poor.
Can be difficult to
collect.

53. 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).

54. 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.

55. Court-Ordered Executions Carried Out in the United States, 1930-2005
Source: Bureau of Justice Statistics, 2006

56. States that have the Death Penalty
Nebraska Nevada New Hampshire North Carolina Ohio Oklahoma Oregon Pennsylvania South Carolina South Dakota Tennessee Texas Utah Virginia Washington Wyoming
US Federal Government and Military
Deathpenaltyinfo.org
Alabama Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Idaho Indiana Illinois Kansas Kentucky Louisiana Maryland Mississippi Missouri Montana

57. Offenders on Death Row
On July 1, 2009, there were 3,279 people on death row in the U.S.
98% male
44.4% white
11.6% Hispanic
41.6% African American
2.4% were of other races (mostly Native
American and Pacific Islander)

58. Methods of imposing death vary
Methods of Execution
Methods of imposing death vary
by state.
Most use legal injection

59. Habeas Corpus Review
Today, the average time before execution is 10 years and 8 months. 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.

60. Abolitionist and Retentionist Positions on Capital Punishment
Arguments for Retention
Revenge—Only after
execution can survivors
begin to heal
psychologically
Just desserts—Some
people deserve to die for
what they did
Protection—Once
executed, the person
cannot commit another
crime
Arguments for Abolition
Has been used on
innocent people and may
be again
Not an effective deterrent
Imposition is arbitrary and discriminatory
Far too expensive
Reduces society to the level of the criminal

61. The Death Penalty and Innocence
Claims of innocence are being partially addressed by recently passed state laws that mandate DNA testing of all death row inmates in situations where DNA might help establish guilt or innocence. The Innocence Protection Act (2004) provides federal funds to help analyze DNA at crime labs throughout the country.

62. The Death Penalty and DNA
The Death Penalty Information Center claims that 124 people in 25 states were freed from death row between 1973 and 2007 after it was determined that they were innocent.

63. The Death Penalty and Mental Capacity
Although people with very low IQ’s may not be executed, serious mental illness is not a bar to execution unless it affects the condemned inmate’s mind such that he doesn’t know why he’s on death row or doesn’t understand the punishment.

64. The Future of the Death Penalty
There is little common ground between death penalty advocates & opponents.
The future of the death penalty likely rests with state legislatures.

65. Unit 8 Probation and Community Corrections
We will cover in Unit 8: The differences between probation and parole. The legal environment of the probation and parole systems. The role of probation and parole officers. The current use and likely future of probation and parole