Comparative Criminal Justice Systems The Sentencing Process: From Fines to the Death Penalty Reichel / Albanese
Questions: What does society hope to gain from punishing wrongdoers? Explain the difference between a sanction with a humanitarian motive and a sanction with a utilitarian motive. What would be advantages or disadvantages of both? Do sanctions serve an economic function? If so, should they?
Philosophies of Punishment Retribution Rehabilitation Deterrence Incapacitation Restoration Sentencing Practices Noncustodial sanctions Corporal punishment Imprisonment Death penalty The Sentencing Process
Question Consider the following scenario: A 21-year-old man is found guilty of burglary for the second time. This time he has taken a television set. Which of the following sentences do you consider appropriate for such a case? Why? Fine – Prison – Community Service – Suspended Sentence Any other sentence
Noncustodial Sentences Legal sanctions handed out to offenders that do not require time served in a correctional facility. Alternatives to incarceration include: • Monetary sanctions: Fines, day fines, victim compensation, community service, and donation penalties. • Community supervision: Probation, house arrest, and electric monitoring.
Fines The fine is a penalty imposed on a convicted offender by a court, or in some countries, by another arm of the criminal justice system, requiring that he or she pay a specified sum of money. • Fixed-sum rate system: specific offenses are allocated a certain “value,” and offenders are fined according to the offenses they commit.. • Day fine: a criminal penalty based on the amount of money an offender earns in a day’s work. The fine amount is also linked to the severity of the crime. The judge equates the crime to punishment units and punishment units equate to monetary terms, i.e., 10 punishment units equals 10 days pay (higher for high income offenders and lower for low income offenders).
Day Fines • Advantages: (1) provides a balance between the crime committed (seriousness) and the offender’s ability to pay for the crime; (2) provides courts and alternative to incarceration. • Countries: U.S., Europe, Scandinavia, Cuba, Costa Rica, Bolivia (Finland which pioneered this penal reform in 1921). • Sentence length: The maximum number of days varies from country to country. In Denmark it is 60 days, while in Germany it is 360 days. • Examples: Sweden and Germany. In Sweden the day fine is meant to economically deprive offenders and are therefore used primarily for less serious offenses (about half of all property and violent crime convictions). In Germany day fines are a replacement for imprisonment and therefore use them even for serious offenses (approximately 75% of all property offenses and 66% of all violent offenses).
Victim Compensation Restitution is when an offender is required or volunteers to pay money to make reparation for harm resulting from a criminal offense. Payment is made by the offender and is received by the victim, his or her representative, or a public fund for victims of crime. • The idea of paying crime victims for losses, damage, or injuries predates formal criminal justice systems. In ancient times, Babylonian, Greek, Roman, and Jewish law all contained provisions for compensation to be paid by offenders. • Example: Islamic countries consider diyya as a replacement to retaliation. Diyya is compensation rendered to a victim or victim’s family for the commission of a felony, i.e., willful murder with a weapon. Payment may be made by the offender’s family or the government.
Community Service Community service is when an offender is asked to “pay back” the community by performing a set number of hours of unpaid work for a not-for-profit agency. • Countries: Although community service can be traced back to ancient times, by the late 1990’s, community service as an accepted correctional practice was accepted in the United Kingdom, Canada, Australia, New Zealand, Netherlands, Finland, Germany, France, and the United States. • Examples: In France, community service codes were being used in addition to the prison option rather than instead of it (net widening). In the UK and the US, community service is used both as a alternative to incarceration and as a supplement to probation.
Donation Penalties • Germany • Misdemeanor offenses only* • A misdemeanor offender can avoid a criminal trial and conviction (and thus a criminal record) by paying a sum of money to the victim, a charitable organization, or the state. The offender acknowledges his responsibility and acts in a “socially commendable” way. • The donation penalty is voluntary and not considered a fine sentence because it occurs prior to conviction. *Misdemeanors in Germany include: aggravated assault, fraud,extortion, and most economic and environmental offenses.
Probation A key characteristic of contemporary probation practices around the world is that it attempts to reintegrate the offender into society. The offender is making a symbolic apology and the community is making a symbolic forgiveness. • Of all the forms of supervising offenders in the community, probation is the most common. There are many variations worldwide. • Examples: Japan uses professional probation officers and volunteer workers; China uses the police or community units; and in Indonesia, probation is implemented by the office of the prosecutor. Canada, England, and the U.S. have the highest rates of probation.
House Arrest and Electronic Monitoring • House arrest offenders are sentenced to terms of incarceration, but they serve those terms in their own homes; i.e., curfews, part-time, full-time. • Countries: Australia, Iraq, Thailand, Canada, England, Wales, and the U.S. • Electronic monitoring is a surveillance technique often used in conjunction with house arrest. It has also been used for intensive probation supervision, supervision of parolees, pretrial defendants, temporary detention of juveniles, gang supervision, and narcotic surveillance. • Countries: England, Sweden, The Netherlands, Germany, France, Switzerland, and the U.S.
Corporal Punishment Any sentence in which a person’s body is subjected to physical pain such as flogging, mutilation, electric shock, or branding. • Five countries that have the use of corporal punishment as a sentencing option: Qatar, Swaziland, Zambia, Zimbabwe, and Singapore. Zimbabwe has the highest rate of incidents of corporal punishment (flogging or caning is most common). • Islamic law also prescribes corporal punishment. Societies faithful to Islamic Law have little choice but to carry out these penalties. • Examples of Islamic Law Countries: Saudi Arabia, United Arab Emirates, Iraq, Iran, Sudan, Singapore, Bahamas. • Islamic law methods include: flogging, caning, whipping with cat-o’-nine tails, amputation, and cross-amputations. • Cultural and traditional methods include: Female genital mutilation (removal of part of or all of) which is common in 28 African nations, Egypt, Oman, Yemen, and the United Arab Emirates (approximately 6,000 per day / over 135 million of world’s female population). Not used as a sanction but to control sexual behavior.
Islamic Law Rationale toCorporal Punishment • “Bodily penalties” • Punishment designed to avoid unreasonable limitation on individual freedom (in contrast to imprisonment). • Severe physical pain acts as a deterrent (as opposed to imprisonment). • Allows the criminal to resume work and he is not prevented from supporting his family. • Considered an act of penance so the offender can resume his life as a normal citizen. • Prison is only used for recidivists (third or fourth time). For example, for first time theft – hand amputation; second time – other hand amputated; third time, amputation of foot or “imprisonment until repentance.”
Death Penalty • The penalty of death has been a sentencing option since the beginning of civilization. • In 2004, 118 nations of the world had outlawed the death penalty by law or in practice (all of European Union) while 78 retained its use (Amnesty International). • In 2003, China (726 executions), Iran (108), Saudi Arabia, Viet Nam (64), and the U.S. (65) had the highest rates of executions. In contrast, Japan has executed less than fifteen people since 1993.
Death Penalty(cont’d) • Although the international trend is to abolish the death penalty (as a human rights issue), international courts have not specifically ruled that the death penalty is inhumane or degrading punishment. • Methods include: Hanging, beheading, firing squad, lethal injection, electrocution, and stoning. • Primary justifications: deterrence and retribution. • Types of crimes justified: murder, drug offenses, violent crimes (rape, robbery), tax fraud, pimping, adultery, sodomy, apostasy, treason. (In other words, crimes that directly threaten people: homicide, stealing, violations of community religious norms, and sexual offenses).
Death Penalty Is it more cruel to know exactly when you will die and be forced to sit idly by until the moment arrives Or, To know you are scheduled to die but not whether it will be this afternoon or 10 years from now (Japan)?