America’s Courts and the Criminal

Justice System, 13th Edition

Chapter 14
Sentencing

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 Learning Objectives (1 of 3)

1. Distinguish between the five major sentencing

philosophies.
2. Describe how the three branches of government
are involved in sentencing.
3. Recognize the main objective of changes in
sentencing structure beginning in the late 1960s
and the major consequences of these changes.
4. Outline how the U.S. Supreme Court has limited
both state and federal sentencing guidelines.

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 Learning Objectives (2 of 3)

5. Explain the law in action perspective on researching

the impact of mandatory minimum sentences.
6. List at least three major issues related to imprisonment
as a sentence in the United States.
7. Identify the major alternatives to imprisonment.
8. Summarize the two U.S. Supreme Court rulings
from the 1970s on capital punishment that led to
the bifurcated process for death penalty sentencing.
9. Indicate how the Court has narrowed the list of
death‑eligible cases and offenders.

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 Learning Objectives (3 of 3)

10. Define the concept of normal penalties and

indicate the two most important factors in
determining normal penalties.
11. Distinguish between the concepts of sentencing
disparities and discrimination.

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 Why Do We Punish Lawbreakers?

• Five philosophical principles

1. Retribution
2. Deterrence
3. Rehabilitation
4. Incapacitation
5. Restoration
• Competing sentencing philosophies

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 Retribution

• Hold individuals responsible for their actions

– Lex talionis
– Just deserts
– Proportionality
– Expiation

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 Deterrence

• Prevention of future crimes

– Hedonistic calculus
– General deterrence
– Specific deterrence
– Certainty, celerity of punishment
• Utilitarian – Bentham
• Rests on the assumption of rational behavior

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 Rehabilitation

• Treat rather than punish

• Probation
• Parole
• Pretrial diversion
• Evidence-based corrections
• Public safety realignment
• Sentences should fit the offender
rather than the offense

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 Incapacitation

• Assumes crime prevention

• Future oriented
• Focus on personal characteristics of offender
• Limitations
– No standards for length of sentence
– Lack of focus on reform may result in
worse future behavior
– Imprisonment is temporary solution
• Selective incapacitation

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 Restoration

• Seeks to replace retribution

• Crime is conflict between individuals.
• Crime is secondarily a violation of government laws.
• Principle aim of criminal justice system should repair
these injuries.
• Criminal justice system should facilitate involvement
of victims, offenders, and community.

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Thinking Point: Maricopa County, Arizona

• Review the Maricopa County Jail System located

in Arizona.
– Explain which concept of sentencing you believe
former Sheriff Joe Arpaio followed.
– Do you believe this concept works? Why or why not?
– Does the sheriff’s conviction impact your view of his
sentencing philosophy? Why or why not?
– What concept would you use if you were running a
jail and/or court system?

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 Restorative Justice

• Three elements
1. Crime is primarily a conflict between individuals,
which results in injuries.
2. The principal aim of the criminal justice system
should be to repair these injuries.
3. The criminal justice system should facilitate the
involvement of victims, offenders, and the community.
• Should restorative justice replace revenge-based
sentencing?

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 Sentencing Responsibility

• Legislative
• Judicial
• Executive
• Parole boards

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 Legislative Sentencing Responsibility

• Create sentencing options

– Criminal codes
– Indeterminate sentences
– Determinate sentences

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 Judicial Sentencing Responsibility

• Sentencing options
– Rehabilitative model
 Wide discretion
– Due process model
 Discretion = inequity
– Crime control model
 Discretion = leniency

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 Executive Sentencing Responsibility

• Governors, parole boards, departments of corrections

• Carry out sentencing
– Parole
– Good time
– Pardon

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 Thinking Point: Michael Vick

• Discuss the case of Michael Vick and his

incarceration for dog fighting.
– Was his sentence just? Why or why not?
– Should the sentence have been longer? Why or
why not?
– Should he have been sentenced at all? Why or why not?
– Do you believe his good-time behavior while
incarcerated should have counted towards him
getting out of federal prison? Why or why not?

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 Probation Officers
and Sentencing Decisions
• Supervision
• Presentence investigation (PSI)
– Recommendations
 Sentence
 Level of supervision
 Conditions of supervision
 Treatment plan
 Community resources

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 Prosecutors
and Sentencing Decisions
• Count or charge bargain
– Limit maximum penalty
• Aggravating factors
• Mitigating factors
• Sentencing recommendation

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 Defense Attorneys
and Sentencing Decisions
• Trial or guilty plea
• Judge shopping
• Communicate with prosecutor
• Emphasize circumstances favorable to the defendant

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 Judges
and Sentencing Decisions
• Informal limits of courtroom workgroup
• Rely on the workgroup who has the most
knowledge of the case
• Most experienced members of the courtroom team

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 Law in Controversy:
Reducing Judicial Discretion
• Due process model
– Advocates feared excessive discretion in sentencing
• Crime control
– Advocates feared discretion reduced crime control
• The result of these two combined is the
“justice model of sentencing.”

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 Law on the Books: Variations
of Determinate Sentencing Return
• Dissatisfaction with the rehabilitation model
• Specific sentence time
• Abolishment of parole
• Vary widely by state

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 Structured Sentencing Schemes
• Presumptive sentencing
• State sentencing guidelines
– Continuum of voluntary to required use
 Adopted or seriously considered in over 21 states
 Direct the judge in specific action to take
 Voluntary
 Presumptive
• Federal sentencing guidelines
– Highly controversial
 Unduly harsh
 Failed to reduce disparity
• Diverse impacts
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Minnesota Sentencing Guidelines

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 Kimbrough v. United States
• Federal sentencing guidelines
– Kimbrough arrested in a crime ridden neighborhood on four
charges, pled guilty
• U.S. Attorney sought 19 and 22 years according to
federal sentencing guidelines
– Judge said statutory minimum for crack cocaine was
15 years
• Federal sentencing guidelines were unconstitutional
if mandatory but judges could use them to advise on
sentencing
– Congress changed the sentencing laws regarding different
forms of cocaine

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 Mandatory Minimum Sentences

• Offenders convicted of certain offenses must

be sentenced for a period of time not less than
a specified period of years.
– Three strikes laws
– Truth in sentencing

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 Thinking Point: Sentencing Schemes

• Research your state’s laws and determine if they have

a three strikes law, mandatory minimums, and truth in
sentencing.
– What are they?
– Do you agree with three strikes laws? Why or why not?
– Who normally receives them?
– How advantageous is this?
– Is it discriminatory? Explain.

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 Law in Action: Nullification by Discretion

• Sidestepped by those who apply the law

– Police arrest
– Prosecutorial discretion
– Jury conviction
– Judicial sentencing

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Law in Controversy: Negative Side Effects

• Time
• Effort
• Money
• Rigid and inflexible

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 What Sentence Should Be Imposed?

• Cruel and unusual punishment

– Eighth Amendment
• Types of sentences
– Imprisonment
– Probation
– Fines
– Restitution
– Intermediate sanctions

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 Imprisonment

• Prison overcrowding
• Conditions of confinement lawsuits
• High costs
• Realities of imprisoning large numbers of criminals
force states to look at alternative sanctions.

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Adults Under Correctional Supervision
in the United States

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 Probation

• Most commonly used sanction in the United States

• Defendant likely to not commit another offense
• Public interest does not demand the penalty required.
• Rehabilitation of the defendant does not require the
penalty for the offense.

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 Fines

• One of the oldest and most widely used forms

of punishment
• Day fines

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 Restitution

• Offender provides reparation to the victim for

harm caused by the offense
• Direct restitution
• Symbolic restitution

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 Intermediate Sanctions

• Community service
– Symbolic restitution
• Intensive supervision probation
– Targets offenders who most likely will face
imprisonment for their next offense
– Home detention
– Electronic monitoring
– GPS monitoring
• Boot camp
– Shock incarceration

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Persons Executed in the United States
(1930–2016)

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 The Death Penalty (1 of 2)

• Capital punishment
• Eighth Amendment standards
– Furman v. Georgia (1972)
 All existing death penalty laws invalid
 Bifurcated trial
– Gregg v. Georgia (1976)
 Death penalty laws not always unconstitutional
 Mandatory death penalty laws struck down
 Bifurcated process required

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 The Death Penalty (2 of 2)

• Method of execution
• Death-qualified juries
• Narrowing death-eligible cases
– Crime limitations
– Developmental limitations
• Lengthy appeals and evolving standards
– May file a writ of certiorari with the U.S. Supreme Court
– Lengthy appellate process
• Cost concerns

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 Courts, Controversy,
and Judicial Administration
• Should the death penalty be abolished?
– What do you think?
– Of the three main issues in the death penalty debate—
morality, deterrence, and fairness—which provides the
best argument for abolishing the death penalty?
– Which one offers the best grounds for keeping the
death penalty?
– Do you think that the issue of innocents on death row
justifies a moratorium on the death penalty?

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 Case Close-Up: Roper v. Simmons

• Should juveniles be put to death?

– Simmons deliberately drowned a neighbor girl who
befriended him.
• At 17 years old, was he too young to understand
the crime he committed?
– The Eighth Amendment forbids the imposition of the
death penalty on offenders who were under 18 when
their crimes were committed.
– 18 is old enough to vote, marry, and serve on a jury.

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 Normal Penalties and
Sentencing Decisions
• Judges indicate sentencing is one of most
difficult aspects of the job.
– “Normal” penalties are guides and are not
applied mechanically.
• Judges consider aspects such as
– Seriousness of the offense
– Prior record
– Aggravating or mitigating circumstances

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 Seriousness of Offense

• Most important factor

• Consider harm suffered by victim in “real offense”
• Most courts use rank ordering
– Most serious: armed robbery, rape
– Mid-level: domestic violence
– Lowest level: forgery, theft, burglary

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 Prior Record

• Second-most important factor

• Overall, longer prior record = longer sentence
• Length of time between offenses

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 Aggravating or Mitigating Circumstances

• Aggravating circumstance
– Use of a weapon
– Injury to victim
• Mitigating circumstance
– Youth of the defendant
– Lack of mental capacity
– Role in offense
– Social stability

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 Law in Controversy:
Uncertainty and Public Opinion
• Sentencing more art than science
• Only mistakes resulting in harm will reach
public attention

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 Differences in Sentencing Outcomes

• Imbalance versus discrimination

– Poor, young, minority males disproportionately
represented in the criminal justice system overall
– Legally relevant variables
– Compare similar cases

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 Sentencing Disparities

• Inconsistencies in sentencing resulting from

the decision-making process.
• Most common disparities due to
– Geography
– Judicial backgrounds and attitudes

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 The Geography of Justice

• Frequency of punishment varies by county and state

– Amount of crime
– Police effectiveness
– Screening procedures
– Type of defendants
• South is harsher in sentencing

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 Thinking Point: Stacy Humphries

• Research the case of Stacy Humphries, a Georgia

inmate. The county in which he committed the crime
agreed to move jurisdictions to south Georgia because
the victim’s fiancé was a police officer in the county
where the crime was committed.
– Do you believe this is fair? Why or why not?
– Would you have moved jurisdictions? Why or why not?
– To what affect would the case have ended had
jurisdiction not be moved?
– Do you believe it is possible that because this case
was moved, a judge was more lenient or harsh?
Why or why not?
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 Judges’ Backgrounds and Attitudes

• U.S. District court judges appointed by

Democratic presidents more likely to find
for the defendant
• Perceptions of seriousness of crime

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 Discrimination in Noncapital Sentencing

• Economic status
• Sex
• Race
• Age
• The effects of intersectionality

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 Discrimination and Capital Punishment
(1 of 2)
• Law is not biased; discretion of criminal justice
officials can be.
– Conflicting results of research
– Conclusion may be that discrimination is not overt
but has subtle and indirect effects
• Offender-victim dyad
– Black offender/White victim most likely to receive
death penalty
• Studies indicate racial discrimination in use of
capital punishment in the South.

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 Discrimination and Capital Punishment
(2 of 2)
• Evidence of discrimination since Gregg
– Race found to be a significant factors
• Evidence of no discrimination since Gregg
– More sophisticated analysis revealed importance of legal
factors
– Prior relationship with victim
• McCleskey v. Kemp rejects social science evidence

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