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Criminal Justice:

A Brief Introduction
Ninth Edition

By Frank Schmalleger

Pearson Education, Inc.

Criminal Justice:
A Brief Introduction
Ninth Edition

By Frank Schmalleger

Chapter 9
Sentencing

Pearson Education, Inc.

The Philosophy and Goals of


Criminal Sentencing
Traditional sentencing options have included
imprisonment, fines, probation, and death
Five goals
Retribution
Incapacitation
Deterrence
General deterrence
Specific deterrence

Rehabilitation
Restoration

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Retribution
Retribution
The act of taking revenge on a criminal perpetrator
The earliest-known rationale for punishment
Corresponds to the model of sentencing called just
deserts
Just Deserts
A model of criminal sentencing that holds that criminal
offenders deserve the punishment they receive
Primary sentencing tool of the just deserts model is
imprisonment

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Incapacitation
Incapacitation
The use of imprisonment or other means to reduce
the likelihood that an offender will commit future
offenses
Seeks to protect innocent members of society
Separate offenders from the community to reduce
opportunities for further criminality
Incapacitation requires only restraint, not punishment

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Deterrence
Deterrence
A goal of criminal sentencing that seeks to inhibit
criminal behavior through the fear of punishment
Overall goal is crime prevention

Specific deterrence
A goal of criminal sentencing that seeks to prevent a
particular offender from engaging in repeat
criminality
Reduce the likelihood of recidivism

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Deterrence
General Deterrence
A goal of criminal sentencing that seeks to prevent
others from committing crimes similar to the one for
which a particular offender is being sentenced by
making an example of the person sentenced

Deterrence is compatible with the goal of


incapacitation
Retribution is oriented toward the past
Deterrence is a strategy for the future and aims to
prevent new crimes
Criminal Justice: A Brief Introduction, 9/e
Frank Schmalleger

Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Rehabilitation
Rehabilitation
The attempt to reform a criminal offender
Seeks to bring about fundamental changes in
offenders and their behavior
Fell victim in the 1970s to the nothing-works doctrine

With as many as 90% of former convicted


offenders returning to crime following release
from a prison-based treatment program,
incapacitation grew more appealing
Criminal Justice: A Brief Introduction, 9/e
Frank Schmalleger

Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Restoration
Restoration
A goal of criminal sentencing that attempts to make
the victim whole again

Restorative Justice (RJ)


A sentencing model that builds on restitution and
community participation in an attempt to make the
victim whole again
Community-focused
Primary goal of improving the quality of life for all
members of the community
Criminal Justice: A Brief Introduction, 9/e
Frank Schmalleger

Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Indeterminate Sentencing
Explanation of Indeterminate Sentencing
A model of criminal punishment that encourages
rehabilitation through the use of general and
relatively unspecific sentences
Relies heavily on judges discretion to choose among
types of sanctions and to set upper and lower limits
on the length of prison stays

Consecutive Sentence
Served one after the other

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Indeterminate Sentencing
Concurrent Sentence
Two or more sentences served at the same time

Indeterminate model created to take into


consideration differences in the degree of guilt
Inmates behavior while incarcerated is the
primary determinant of the amount of time
served

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Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Critiques of Indeterminate Sentencing


Since the 1970s, the model has been criticized
for contributing to inequality in sentencing
Also criticized for perpetuating a system under
which offenders might be sentenced more on the
basis of personal and social characteristics than
on culpability
Tends to produce dishonesty in sentencing

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Critiques of Indeterminate Sentencing


Gain Time
The amount of time deducted from time to be served
in prison on a given sentence as a consequence of
participation in special projects or programs

Good Time
The amount of time deducted from time to be served
in prison on a given sentence as a consequence of
good behavior

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Structured Sentencing
Critics of indeterminate model called for the
recognition of three fundamental sentencing
principles
Proportionality
Equity
Social debt

Proportionality
Severity of sanctions should bear a direct relationship
to the seriousness of the crime committed

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Structured Sentencing
Equity
Similar crimes should be punished with the same
degree of severity, regardless of the social or personal
characteristics of the offenders

Social Debt
An offenders criminal history should be objectively
be taken into account in sentencing decisions

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Structured Sentencing
Structured Sentencing
A model of criminal punishment that includes
determinate and commission-created presumptive
sentencing schemes

Determinate Sentencing
A model of criminal punishment in which an offender
is given a fixed term of imprisonment that may be
reduced by good time or gain time
Also specify an anticipated release date

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Structured Sentencing
Voluntary/Advisory Sentencing Guidelines
Recommended sentencing policies that are not
required by law
Usually based on past sentencing practices
Serve as guides to judges
A form of structured sentencing

Presumptive Sentencing
Developed by a sentencing commission rather than
state legislature
Explicit and highly structured
Criminal Justice: A Brief Introduction, 9/e
Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Structured Sentencing
Typically relying on a quantitative scoring instrument
Not voluntary/advisory in that judges had to adhere to
the sentencing system or provide a written rationale
for departing from it

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Structured Sentencing
Aggravating Circumstances
Circumstances relating to the commission of a crime
that make it more grave than the average instance of
that crime

Mitigating Circumstances
Circumstances relating to the commission of a crime
that may be considered to reduce the
blameworthiness of the offender

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Federal Sentencing Guidelines


Comprehensive Crime Control Act (1984)
Addressed the issue of Truth In Sentencing
A close correspondence between the sentence imposed on
an offender and the time actually served in prison

Nearly eliminated good-time credits and began the


process of both phasing out federal parole and
eliminating the U. S. Parole Commission
Funds available for states that adopt truth-insentencing laws and are able to guarantee that certain
violent offenders will serve 85% of their sentences
Mistretta v. U. S. (1989)
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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Federal Guideline Provisions


Specified a sentencing range from which judges had to
choose
Departures were generally expected only in the presence
of aggravating or mitigating circumstances
Federal sentencing guidelines are built around a table
containing 43 rows, each corresponding to one offense
level
Defendants may move into the highest criminal
history category by virtue of being designated a
career offender

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Plea Bargaining under the Guidelines


It required that the agreement
Be fully disclosed in the record of the court
Detail the actual conduct of the offense

Melendez v. U. S. (1996)

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

The Legal Environment of


Structured Sentencing

Apprendi v. New Jersey (2000)


U. S. v. OBrien (2010)
Blakely v. Washington (2004)
Cunningham v. California (2007)
U. S. v. Booker (2005)
U. S. v. Fanfan (2005)
Rita v. U. S. (2007)
Oregon v. Ice (2009)
Gall v. U. S. (2007)

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Three Strikes Laws


About half of the states have passed three-strike
legislation
Questions remain about the effectiveness of
three-strikes legislation

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Mandatory Sentencing
Mandatory Sentencing
A structured sentencing scheme that allows no
leeway in the nature of the sentence imposed

Diversion
The official suspension of criminal or juvenile
proceedings against an alleged offender at any point
after a recorded justice system intake, but before the
entering of a judgment

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

The Presentence Investigation


Presentence Investigation (PSI)
The examination of a convicted offenders
background prior to sentencing

One of three forms


A detailed written report on the defendants personal
and criminal history
An abbreviated written report summarizing the
information
Verbal report to the court

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

The Victim Forgotten No Longer


Sentencing process now frequently includes
consideration of the needs of victims and
survivors
No victims rights amendment to the federal
Constitution
More than 30 states have passed their own victims
rights amendments

Violent Crime Control and Law Enforcement Act


of 1994
Criminal Justice: A Brief Introduction, 9/e
Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

The Victim Forgotten No Longer


Much of the philosophical basis of todays
victims movement can be found in the
restorative justice model
In 2001, the USA PATRIOT Act amended the
Victims of Crime Act of 1984
Made victims of terrorism and their families eligible
for victims compensation payments

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Victim-Impact Statements
Victim-Impact Statements
An in-court statement made by the victim or
survivors, to sentencing authorities seeking to
make an informed sentencing decision
One study of the efficacy of victim-impact
statements found that sentencing decisions are
rarely affected by them
Little effect because judges and other officials have
established ways of making decisions which do not
call for explicit information about the impact
Criminal Justice: A Brief Introduction, 9/e
Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Sentencing Practices
State courts convicted 1,132,000 felons in 2006
About 41% were sentenced to active prison terms
28% received jail sentences involving less than one
years confinement
27% were sentenced to probation with no jail or
prison time to serve
The largest offense category for which state felons
were sent to prison was drug offenses

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Fines
One of the oldest forms of punishment
Often imposed for relatively minor law violations
Most likely to be imposed where the offender has
both a clean record and the ability to pay
Day-fine system

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

Habeas Corpus Review


Writ of Habeas Corpus
A writ that directs the person detaining a prisoner to
bring him or her before a judicial officer to determine
the lawfulness of the imprisonment

McCleskey v. Zant (1991)


Schlup v. Delo (1995)
Felker v. Turpin (1996)
Elledge v. Florida (1998)

Criminal Justice: A Brief Introduction, 9/e


Frank Schmalleger

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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved

The Courts and the Death Penalty

Wilkerson v. Utah (1878)


In re Kemmler (1890)
Furman v. Georgia (1972)
Gregg v. Georgia (1976)
Apprendi v. New Jersey (2000)
Ring v. Arizona (2002)
Poyner v. Murray (1993)
Campbell v. Wood (1994)
Baze v. Rees (2008)

Criminal Justice: A Brief Introduction, 9/e


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Copyright 2012, 2010, 2008, 2006, 2004, 2002, 1999, 1997, 1994 by Pearson Education, Inc.
Upper Saddle River, New Jersey 07458 All rights reserved