What is the primary factor in a judge's sentencing decision

Chapter 9: Punishment and Sentencing

CHAPTER 9

PUNISHMENT AND SENTENCING

Learning Objectives

After reading this chapter, students should:

1. List and contrast the four basic philosophical reasons for sentencing criminals.

2. Contrast indeterminate with determinate sentencing.

3. State who has input into the sentencing decision, and list the factors that determine a sentence.

4. Explain some of the reasons underlying the need for sentencing reform.

5. Identify the arguments for and against the use of victim impact statement during sentencing hearings.

6. Identify the two stages that make up the bifurcated process of death penalty sentencing.

7. Explain why the U.S. Supreme Court abolished the death penalty for juvenile offenders.

8. Describe the main issues of the death penalty debate.

Lesson Plan

Correlated to PowerPoints

I. The Purpose of Sentencing

Learning Objective 1: List and contrast the four basic philosophical reasons for sentencing criminals.

a. Retribution

i. The oldest and most common justification for punishing someone is that he or she “deserved it”

ii. A wrongdoer who has freely chosen to violate society’s rules must be punished for the infraction

iii. Retribution relies on the principle of just deserts – the severity of punishment must be in proportion to the severity of the crime

iv. This is not the same as revenge, because with revenge, the wrongdoer is punished only with the aim of satisfying a victim or victims

v. Retribution is concerned with the needs of society as a whole

b. Deterrence

i. The goal of sentencing should be to prevent crimes

ii. By “setting an example,” society is sending a message to potential criminals that certain actions will not be tolerated

iii. Deterrence can take on two general forms

1. General deterrence – by punishing one person, others will be dissuaded from committing a similar crime

2. Specific deterrence – assumes that an individual, after being punished once for a certain act, will be less likely to repeat that act because he or she does not want to be punished again

c. Incapacitation

i. Incapacitation is a strategy for preventing crime by detaining wrongdoers in prison, thereby separating them from the community and reducing criminal opportunities

ii. Incarcerating criminals guarantees that they will not be a danger to society, at least for the length of their prison term

iii. The death penalty is justified in terms of incapacitation because it prevents the offender from committing any future crimes

d. Rehabilitation

i. Rehabilitation seems to be the most “humane” goal of punishment

ii. It operates under the philosophy that society is best served when wrongdoers are provided the resources needed to eliminate criminality from their behavioral pattern rather than simply being punished

iii. This line of thinking reflects the view that crime is a “social phenomenon” caused not by the inherent criminality of a person, but by factors in that person’s surroundings

e. Restorative justice

i. Approach to punishment designed to repair the damage that a crime does to the victim, the victim’s family, and society as a whole.

ii. Relies on the efforts of the offender to “undo” the harm caused by the criminal act through an apology and restitution, or monetary compensation for losses suffered by the victim or victims.

i. The amount of restitution is sometimes determined through victim-offender mediation, a process that involves a face-to-face meeting between the two parties of the crime.

II. The Structure of Sentencing

Learning Objective 2: Contrast indeterminate with determinate sentencing.

Learning Objective 3: State who has input into the sentencing decision, and list the factors that determine a sentence.

a. Legislative Sentencing Authority

i. Indeterminate Sentencing

1. An indeterminate term of incarceration in which a judge determines the minimum and maximum terms of imprisonment

2. Within the parameters, a judge can prescribe a particular term, after which an administrative body known as the parole board decides at what point the offender is to be released

3. When the minimum term is reached, the prisoner becomes eligible to be paroled

ii. Determinate Sentencing

1. A period of incarceration that is fixed by a sentencing authority and cannot be reduced by judges or other corrections officials

2. The offender serves exactly the amount of time to which she or he is sentenced, minus “good time”

iii. “Good Time” and Truth in Sentencing

1. Often the amount of time prescribed by a judge bears little relation to the amount of time the offender actually spends behind bars

2. “Good time” is a reduction in time served by prisoners based on good behavior, conformity to rules, and other positive actions, which is allowed in all but four states

3. Sentence-reduction programs promote discipline within a correctional institution and reduce overcrowding

4. Truth-in-sentencing law requires murderers and others convicted of serious crimes to complete at least 85 % of their sentences with no time off for good behavior

b. Judicial Sentencing Authority

i. Historically, the judge bore most of the responsibility for choosing the proper sentence within guidelines set by the legislature

ii. Legislators have generally accepted a judge as the most qualified person to choose the proper punishment

iii. During pretrial and trial procedures, the judge has a passive role, serving as a procedural watchdog

iv. During sentencing, the judge relies heavily on his or her discretion to determine the sentence assigned to the offender

v. In many cases, determinate sentencing has restricted the ability of judges to exercise their discretion in the sentencing process

c. Judicial Dispositions

i. Forms of Punishment

1. Capital punishment, or the death penalty, is normally reserved for those who commit first degree murder under aggravated circumstances, and is a sentencing option in 38 states and in federal courts

2. Imprisonment is a common form of punishment, which now makes judges and legislators take the factor of prison overcrowding seriously

3. Probation occurs when offenders are permitted to live in the community under supervision and are not incarcerated

4. Fines can be levied by judges in addition to incarceration and probation or independently of other forms of punishment

ii. Other forms of punishment

1. Restitution and community service are seen as reparations to the injured party or the community

2. Restorative justice occurs when the offender has committed a less serious crime; this may be used as a remedy, which has an apology central to the overall punishment

3. In some jurisdictions, judges have a great deal of discretionary power and can impose sentences that do not fall into any predetermined category. This is called “creative sentencing”

d. The Sentencing Process

i. The Presentence Investigative Report

1. The presentence investigative report provides valuable information to judges operating under indeterminate sentencing guidelines

2. This report is compiled by the prosecutor

a. It describes the crime(s) in question, notes suffering of any victims, and lists the defendant’s prior offenses

b. It also contains a range of personal data such as family background, work history, education, and community activities

3. This report is supposed to allow one to gain a “feel” for the defendant and communicate impressions of the offender to the judge

ii. The Prosecutor and the Defense Attorney

1. Both the prosecutor and the defense attorney are interviewed in the process of preparing the presentence investigative report

2. Both individuals try to present a version of the facts consistent with their own sentencing goals

iii. Sentencing and the Jury

1. Juries play an important role in the sentencing process

2. Juries determine if an offender who is eligible for capital punishment will in fact be sentenced to death

3. In six states juries, rather than judges, determine the sentence for a criminal offender even when the death penalty is not an option

4. When sentencing by juries is allowed, it is a popular option, because juries typically impose harsh penalties for drug crimes, sexual assaults, and theft

e. Factors of Sentencing

i. The Seriousness of the Crime

1. Primary factor in a judge’s sentencing decisions

2. The more serious the crime, the harsher the punishment

a. The judge may consider the “conviction offense” – based on the crime for which the defendant was convicted

b. Some focus on the “real offense” – based on the actual behavior of the defendant, regardless of the official conviction

ii. Mitigating and Aggravating Circumstances

1. Mitigating circumstances

a. Those circumstances that allow a lighter sentence to be handed down

b. Any circumstances accompanying the commission of a crime that may justify a lighter sentence

2. Aggravating circumstances

a. Those circumstances that justify a more severe penalty

b. Any circumstances accompanying the commission of a crime that may justify a harsher punishment

Media Tool

“Prosecutors Urge Death Penalty for Convicted Killer”

· https://www.youtube.com/watch?v=ZfwpvyddvoY

· A news clip about a capital trial and the issue of mitigating and aggravating factors and their importance

iii. Judicial Philosophy

1. Room for judicial discretion in applying law to particular cases

2. Judges are not uniform, or even consistent, in their opinions concerning which circumstances are mitigating or aggravating

3. Judges who support rehabilitative theories of criminal justice have been found to give more lenient sentences than those who subscribe to theories of deterrence and incapacitation

4. Judges can have different philosophies with regard to different crimes

What If Scenario

What if . . . you are a defense attorney representing a defendant who has two prior felony convictions, as he goes in to be sentenced for another felony that he has recently been convicted of. His “rap” sheet indicates that his prior felonies stemmed from the same incident, over twenty years ago. This offense, for which you currently represent him, involved a burglary of a convenience store, where your client stole approximately $200.00 worth of merchandize. What argument s are you going to make to the judge to convince her not to apply your state’s “3 strikes” law to your client’s current case? Why should the judge go along with your argument?

III. Inconsistencies in Sentencing

Learning Objective 4: Explain some of the reasons underlying the need for sentencing reform.

a. Sentencing Disparity

i. A situation in which those convicted of similar crimes do not receive similar sentences

ii. Justice seems to demand that those who commit similar crimes should receive similar punishments

iii. Sentencing disparity occurs in one of three ways:

a. Criminals receive similar sentences for different crimes of unequal seriousness

b. Criminals receive different sentences for similar crimes

c. Mitigating or aggravating circumstances have a disproportionate effect on sentences

2. Sentencing disparity has been explained by geography and courtroom norms

b. Sentencing Discrimination

i. A situation in which the length of a sentence appears to be influenced by a defendant’s race, gender, economic status, or other factor not directly related to the crime he or she committed

ii. Race and sentencing

1. Some researchers suggest that minorities pay a punishment penalty when it comes to sentencing; however, this may not be the result of overt racism

Media Tool

“Racial Inequality in the Criminal Justice System”

https://www.youtube.com/watch?v=Hfie5bHG1OA

· A short clip by Prof. D’Amico about racial inequalities

iii. Sentencing bias

1. Disparities between races were not the result of “conscious” discrimination, but rather the use of stereotypes in sentencing decision – race, age, and unemployment – all disadvantage minorities

2. Judges who were members of minority groups were less likely to send offenders to prison, regardless of their race

iv. Length of sentence

1. African-American receive significantly higher maximum sentences than Caucasians

2. Crack cocaine disparities

v. Women and sentencing

1. The Sentencing Reform Act of 1984 asserts that punishment should be gender-neutral; however, in practice, women are less likely to be imprisoned than men

2. Some suggest that women receive lighter sentences because they are often accessories, or reacting to physical abuse

3. Another explanation is the chivalry effect, or the idea that women should be treated more leniently than men, plays a large role in sentencing decisions

IV. Sentencing Reform

Learning Objective 5: Identify the arguments for and against the use of victim impact statement during sentencing hearings.

a. Sentencing Guidelines

i. Sentencing guidelines were developed in an effort to eliminate the inequities of disparity by removing judicial bias from the sentencing process

ii. Guidelines require judges to dispense legislatively determined sentences based on factors such as the seriousness of the crime and the offender’s prior record

iii. State Sentencing Guidelines

1. Today, about 20 states employ some form of sentencing guidelines

2. Guidelines remove discretionary power from state judges by turning sentencing into a mathematical exercise

3. Members of the courtroom work group are guided by a grid, which helps them determine the proper sentence

iv. Federal Sentencing Guidelines

1. In 1984, Congress passed the Sentencing Reform Act (SRA), paving the way for federal sentencing guidelines that went into effect in 1987

2. Federal sentencing guidelines eliminated parole for federal prisoners and limited early release from prison due to good behavior

3. These guidelines changed the sentencing role of U.S. probation officers

a. No longer were they allowed to “suggest” the terms of punishment in presentence investigative reports

b. Probation officers were simply called on to calculate the presumptive sentence based on the federal sentencing guidelines grid

v. Judicial Departures

1. Both state and federal sentencing guidelines allow an “escape hatch” of limited judicial discretion known as departure

a. Departure is a stipulation in many federal and state sentencing guidelines that allows a judge to adjust his or her sentencing decision based on the special circumstances of a particular case

b. Department Downward

i. A judge may “depart” from the presumptive sentencing range if a case involves aggravating or mitigating circumstances that are not adequately covered in the guidelines

c. Increasing Inconsistency

i. Much to the regret of supporters of sentencing reform, a series of Supreme Court decisions handed down midway through the first decade of the 2000s held that federal sentencing guidelines were advisory only

ii. It appears that federal judges have taken advantage of their new-found sentencing freedom

iii. The U.S. Sentencing Commission reports that racial disparity in federal courts is again on the rise, with African American male defendants receiving sentences of about 20 percent greater lengths than while males who have been convicted of similar offenses.

b. Mandatory Sentencing Guidelines

i. Politicians have passed sentencing laws that are contrary to the idea of individualized justice in an attempt to close even the limited loophole of judicial discretion offered by departures

ii. Mandatory (minimum) sentencing guidelines further limit a judge’s power to deviate from determinate sentencing laws by setting firm standards for certain crimes

iii. “Three-Strikes” Legislation

1. Habitual offender laws are a form of mandatory sentencing that require lengthy prison sentences for those who are convicted of multiple felonies

2. Habitual offender laws are also referred to as “three-strikes-and-you’re-out” laws

a. This statute requires that any person convicted of a third felony serves a lengthy prison sentence

b. Crime does not have to be of a violent nature

iv. “Three-Strikes” in Court

1. Rummel v. Estelle (1980) – U.S. Supreme Court ruled that Texas’ habitual offender statute did not constitute “cruel and unusual punishment”

2. Lockyer v. Andrade (2003) – U.S. Supreme Court upheld California’s “three-strikes” law

c. Victim Impact Evidence

i. Traditionally victims played little to no part in the criminal justice system

ii. Balancing Process

1. Victim impact statements (VIS) allow victims the opportunity to testify, in person or writing, during the sentencing phase about the suffering he or she experienced as a result of the crime, or in murder cases relatives or friends can give personal details about the victim and describe the effects of her/ his death

2. The goal of VIS is to increase the harshness of the sentence

iii. The Risks of Victim Evidence

1. Opponents claim that VIS interject dangerously prejudicial evidence into the sentencing process, which should be governed by reason rather than emotion

Media Tool

“Scott Davis Victim Impact Statement”

· https://www.youtube.com/watch?v=fev-8HiFtnU

· A short clip of a victim impact statement by Scott Davis - the only survivor of the craigslist killings

What If Scenario

What if . . . you are a judge in a state that has no statutory scheme regarding the use of victim impact statements (in other words, the use of such statements are left to the discretion of the judge). Currently before you is a murder case wherein the family of a victim wishes to speak at the sentencing hearing to tell you how the murder of their pregnant mother of five young children has affected their lives. It appears that this case has garnered lots of media attention, and all of the local media will also be on hand to see what you do with the case. Will you allow the victim impact statement? Why, or why not? Remember, no matter what you do, right or wrong, the media will be reporting your decision!

V. Capital Punishment – The Ultimate Sentence

Learning Objective 6: Identify the two stages that make up the bifurcated process of death penalty sentencing.

Learning Objective 7: Explain why the U.S. Supreme Court abolished the death penalty for juvenile offenders.

Learning Objective 8: Describe the main issues of the death penalty debate.

a. Capital punishment has played a role in sentencing since the earliest days of the Republic and continues to enjoy public support

b. Today, 3,000 convicts are living on “death row” in American prisons

c. Methods of Execution

i. Methods have included drawing and quartering and boiling the convict alive

ii. The practice of hanging replaced these techniques on the grounds that they were too “barbaric”

iii. The history of capital punishment in America is marked with attempts to make the act more humane; the 1890s saw the introduction of electrocution as a less painful method of execution than hanging

iv. The “chair” was the primary form of execution until 1977

v. In 1977, Oklahoma became the first state to use lethal injection

1. Lethal injection is the method dominating executions in the United States today

2. The condemned convict is usually given a sedative, which is followed by a combination of lethal drugs administered intravenously

Media Tool

“Lethal Injection Drug Problem Stymie Ohio and Missouri”

· https://www.youtube.com/watch?v=a1EmE2gBNvo

· A short clip on the lethal injection procedure.

d. The Death Penalty and the Supreme Court

i. Many constitutional scholars believe that the framers of the U.S. Constitution never questioned the necessity of capital punishment, as long as due process is followed in determining the guilt of the suspect

ii. Court has set the standard that “punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of the word as used in the Constitution”

iii. No method of execution has ever been found to be unconstitutional by the Supreme Court

iv. Weems v. United States (1910)

1. Court ruled that cruel and unusual punishment is determined by the changing norms and standards of society and is therefore not based on historical interpretations

2. Courts may decide whether a punishment is unnecessarily cruel with regards to physical pain

3. Courts may decide if a punishment is unnecessarily cruel with regards to psychological pain

v. Baze v. Reese (2008)

1. The Supreme Court ruled that the mere possibility of pain “does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” punishment

e. Death Penalty Sentencing

i. Furman v. Georgia (1972)

Media Tool

“American Justice – Furman v. Georgia”

· https://www.youtube.com/watch?v=lrJBatK23iI

· A short clip about the death penalty and the Furman decision.

ii. The Bifurcated Process

1. As a result of the Furman decision, a number of states adopted a two-stage procedure for capital cases

2. In the first stage, a jury determines the guilt or innocence of the defendant for a crime that has statutorily been determined to be punishable by death

3. If the defendant is found guilty, the jury reconvenes in the second stage and considers all relevant evidence to decide whether the death sentence is in fact warranted

iii. The Jury’s Role

1. The court reaffirmed the important role of the jury in death penalties in Ring v. Arizona (2002)

iv. Mitigating Circumstances

1. Several mitigating circumstances will prevent a defendant found guilty of first degree murder from receiving the death penalty

a. Insanity

i. In 1986, the U.S. Supreme Court held that the Constitution prohibits the execution of a person who is insane

ii. Each state must come up with its own definition of “insanity” for death penalty purposes

2. Mentally Handicapped

a. In 1989, the Supreme Court rejected the argument that execution of a mentally handicapped person was “cruel and unusual” under the Eighth Amendment

b. In 2002, Atkins v. Virginia barred the execution of the mentally handicapped

3. Age

a. Roper v. Simmons (2005) effectively ended the execution of those who committed crimes as juveniles

b. Roper ruling required that 72 convicted murderers in 12 states be resentenced and took the death penalty “off the table” for dozens of pending cases in which prosecutors were seeking capital punishment for juvenile criminal acts

f. Debating the Sentence of Death

i. Deterrence

1. Advocates believe that capital punishment serves as a deterrent to society

2. Research is contradictory regarding the issue of deterrence

ii. Fallibility

1. Incapacitation justification rests on two questionable assumptions

a. Every convicted murderer is likely to recidivate

b. The criminal justice system is infallible

i. The system never convicts someone who is actually not guilty

ii. Between 1976 and 2014, 144 American men and women who had been convicted of capital crimes and sentenced to death were later found to be innocent

2. Police and prosecutors are often under a great deal of public pressure to solve violent crimes and may be overzealous in arresting and prosecuting suspects

3. Outright lying by persons involved in capital cases contributes to false convictions

4. Single factor contributing the most to the criminal justice system’s fallibility is widely believed to be unsatisfactory legal representation

iii. Arbitrariness

1. A certain amount of arbitrariness appears to remain in the system

2. Only 2% of murderers are sentenced to death, and very few are ever executed

3. The chances of a defendant in a capital trial being sentenced to death seem to depend heavily on the quality of the defense counsel and the jurisdiction where the crime was committed

iv. Discriminatory Effect

1. Whether or not capital punishment is imposed arbitrarily, some observers claim that it is not done without bias.

2. A disproportionate number of those executed since 1976 – just over one-third – have been African American, and today 42 percent of all inmates on death row are black.

3. Another set of statistics also continues to be problematic: in 269 cases involving interracial murders in which the defendant was executed between 1976 and March 2012, the defendant was African American and the victim was white. Over that same time period, only 20 cases involved a white defendant and a black victim.

g. The Immediate Future of the Death Penalty

i. The annual number of executions has decreased dramatically since 1999

ii. Reasons for Decline in Executions

1. An unofficial moratorium went into effect in 2007 when the United States Supreme Court agreed to hear a case regarding the constitutionality of lethal injection

2. With outcomes of Atkins and Roper, the Supreme Court removed the possibility that hundreds of mentally handicapped and juvenile offenders could be sentenced to death

3. 37 of 38 states that allow for the death penalty now permit juries to impose a sentence of life in prison without parole as an alternative to death

iii. Continued Support for the Death Penalty

1. The United States Supreme Court has shown no interest in holding the death penalty itself unconstitutional

2. 61% of Americans still favor the death penalty

Lecture Notes

In Chapter 9, students are introduced to the four basic philosophical reasons for sentencing criminals. The oldest basis for punishment is retribution or exacting vengeance for a criminal wrong. Punishment also can serve as a deterrent, preventing future crimes. A more modern objective of punishment is rehabilitation. Finally one might simply hope to incapacitate the offender, limiting his or her opportunity to continue offending. It is critical that students understand these concepts and apply them in Chapters 9, 10, 11, and 12. Whenever students are faced with analyzing the correctional system, they first need a strong understanding of its objectives.

Currently there are a number of sentencing practices applied in the U.S. Some states choose to practice determinate sentencing, in which an offender is sentenced to a fixed term that may be reduced through good time. Indeterminate sentencing, on the other hand, involves setting minimum and maximum terms for offenders. Judges may use their discretion to determine the appropriate sentence for each offender on a case-by-case basis. With discretion comes disparity and even discrimination, something that has led to sentencing reform in recent years. Many states have turned to sentencing guidelines, or a mathematical approach to determining criminal sentences based on the offense as well as a series of aggravating and mitigating circumstances. It may be helpful to discuss with students specifically the method of sentencing in your state. This can help students begin to analyze the various sentencing strategies and their respective strengths and weaknesses.

There are six primary forms of punishment in the U.S., the most serious of which is capital punishment, or the death penalty. Chapter 9 includes a discussion of the evolution of the death penalty in the U.S. While this is a highly emotional topic for many, strive to keep students focused on identifying the main arguments for and against the practice of capital punishment, rather than rating those arguments. Ask students to track the application of the death penalty through the Supreme Court’s rulings, and then offer a prediction on the future of this practice. For added interest, have students explore the history of the death penalty in your state and share their findings with the class.

Key Terms

Aggravating circumstances - any circumstances accompanying the commission of a

crime that may justify a harsher sentence. (p. 261)

Capital punishment - the use of the death penalty to punish wrongdoers for certain

crimes. (p. 269)

Departure - a stipulation in many federal and state sentencing guidelines that allows a

judge to adjust his or her sentencing decision based on the special circumstances of a particular

case. (p. 266)

Determinate sentencing - a period of incarceration that is fixed by a sentencing

authority and cannot be reduced by judges or other corrections officials. (p. 257)

Deterrence - the strategy of preventing crime through the threat of punishment. (p. 254)

“Good time” - a reduction in time served by prisoners based on good behavior,

conformity to rules, and other positive behavior. (p. 257)

Habitual offender laws - statutes that require lengthy prison sentences for those who are

convicted of multiple felonies. (p. 267)

Incapacitation - a strategy for preventing crime by detaining wrongdoers in prison,

thereby separating them from the community and reducing criminal opportunities. (p. 254)

Indeterminate sentencing - an indeterminate term of incarceration in which a judge

determines the minimum and maximum terms of imprisonment. When the minimum term is

reached, the prisoner becomes eligible to be paroled. (p. 256)

Just deserts - a sanctioning philosophy based on the assertion that criminals deserve to

be punished for breaking society’s rules. The severity of the punishment should be determined

only by the severity of the crime. (p. 253)

Mandatory sentencing guidelines - statutorily determined punishments that must be

applied to those who are convicted of specific crimes. (p. 267)

Mitigating circumstances - any circumstances accompanying the commission of a

crime that may justify a lighter sentence. (p. 261)

Presentence investigative report - an investigative report on an offender’s background

that assists a judge in determining a proper sentence. (p. 259)

“Real offense” - the actual offense committed, as opposed to the charge levied by a

prosecutor as the result of a plea bargain. (p. 261)

Rehabilitation - the philosophy that society is best served when wrongdoers are

provided the resources needed to eliminate criminality from their behavioral pattern. (p. 255)

Restitution - monetary compensation for damages done to the victim by the offender’s

criminal act. (p. 256)

Restorative justice - an approach to punishment designed to repair the harm done to the

victim and the community by the offender’s criminal act. (p. 256)

Retribution - the philosophy that those who commit criminal acts should be punished

based on the severity of the crime and that no other factors need be considered. (p. 251)

Sentencing discrimination - a situation in which the length of a sentence appears to be

influenced by a defendant’s race, gender, economic status, or other factor not directly related to

the crime he or she committed. (p. 263)

Sentencing disparity - a situation in which those convicted of similar crimes do not

receive similar sentences. (p. 262)

Sentencing guidelines - legislatively determined guidelines that judges are required to

follow when sentencing those convicted of specific crimes. These guidelines limit judicial

discretion. (p. 265)

Truth-in-sentencing laws - legislative attempts to ensure that convicts will serve

approximately the terms to which they were initially sentenced. (p. 257)

Victim impact statements (VIS) - a statement to the sentencing body (judge, jury, or

parole board) in which the victim is the opportunity to describe how the crime has affected her or

him. (p. 268)

Assignments

1. Research the sentencing practices in your state. Determine if determinate or indeterminate sentencing practices are used in your state, or if sentencing guidelines have been enacted. Do students agree with the current sentencing policies? Why or why not? (LO 2)

2. In a one page paper articulate your beliefs about the “toughness” of the American criminal justice system relative to any other system that they might know something about. Debate the pros and cons of having very tough sentences. (LO 2, 3)

3. Read the “Presentence Investigation Reports” at http://www.fd.org/docs/select-topics---sentencing/the-presentence-investigation-report.pdf?sfvrsn=4. Read pages I-1 to I-8 and write a summary of the philosophy, functions and objectives, authority and requirements, types of investigations and reports, and supporting the presentence report. (LO 3)

4. “The killing on Friday July 20, 2012 of at least 12 people by a masked man at the midnight showing of a movie in Aurora, Colorado, was the worst mass murder in the U.S. since the Nov. 5, 2009, attack at Fort Hood, Texas, when an Army psychiatrist killed 13 soldiers. The Fort Hood shootings, in turn, were the worst mass murder in the U.S. since March 10, 2009, when a man killed 10 people across two rural Alabama counties. The Alabama shootings, in turn, were the worst mass murder in the U.S. since April 16, 2007, when a man killed 32 people and himself at Virginia Tech University. And so it goes, back in time and into the future.” Chicago Sun-Times, Editorial: Batman, mass murder and America, Editorials, July 20, 2012 3:30PM. What is the proper punishment for those who commit such heinous crimes? Who should have an input into sentencing? What would be the proper punishment? (LO 3, 4, 8)

5. Research the opinions and views on the death penalty at http://www.deathpenaltyinfo.org. Choose a prominent case being covered by the national media in which capital punishment will be a sentencing option. Prepare an argument either for or against the assignment of the death penalty. Students should write from the perspective of either the prosecuting attorney or as counsel for the defense. (LO 8)

Answers To Critical Thinking Questions In The Text

1. Suppose that the U.S. Congress passed a new law that punished shoplifting with a mandatory eighty-five-year prison term. What would be the impact of the new law on shoplifting nationwide? Would such a harsh law be justified by its deterrent effect? What about imposing a similarly extreme punishment on a more serious crime—a mandatory sentence of life in prison for, say, drunk driving? Would such a law be in society’s best interest? Why or why not?

ANS: The evidence for a deterrent effect has been small because the underlying assumption is that criminals behave rationally. Few criminals weigh the costs and benefits of a crime because they often don’t know the potential costs and benefits, including the chance of getting caught. Deterrence requires not only rational decision-making, but also a swift and certain punishment; neither of which is present in CJ system. Most shoplifters and drunk drivers believe that they will not get caught and, in fact, they are correct because only few are caught by police. Thus, tougher sentences will increase the population of aging inmates and the correctional costs, but may only have marginal effects on the shoplifting rate or drunk driving.

2. Why are truth-in-sentencing laws generally popular among victims’ rights advocates? Why might these laws not be so popular with prison administrators or government officials charged with balancing a state budget?

ANS: Victims often fear that the offender will not serve the full sentence and be released after a short period of incarceration. Truth in sentencing laws guarantee that the offender serves at least 85% of the sentence. This law may not be so popular with prison administrators or government officials because it greatly increases the incarceration costs. Plus, it provides few incentives for good behavior or cooperation of inmates because there is no benefit of good time.

3. Harold is convicted of unarmed burglary after a trial in Boston, Massachusetts. He has no prior convictions. According to the grid on page 286, what punishment do the state guidelines require? What would his punishment be if he had a previous conviction for armed robbery, which means that he has a “serious” criminal record?

ANS: 12-36 months without prior convictions, and 36-54 months with a serious record.

4. As noted earlier in the chapter, Alabama judges often override capital punishment–related sentencing decisions made by juries in that state. What are the arguments for and against giving judges this power?

ANS: Judges have almost always overturned a life sentence for a death sentence. This is problematic because defendants should be judged by a jury of their peers rather than a judge. However, others claim that judges have more knowledge and “know better” than jurors.

5. Some observers believe that, by abolishing the death penalty, officials in states such as Connecticut and Maryland have taken away an important bargaining chip for prosecutors to use during plea negotiations. Why might this be the case?

ANS: Defendants may be more likely to negotiate a plea bargain if they are afraid to get the death penalty. So, if defendants know that there is no death penalty they may be less inclined to agree to a plea bargain.

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