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Chapter 9 Sentencing, Appeals, and the Death Penalty . Crime in the United States. If a criminal defendant pleads guilty or is found guilty by a judge or jury, then the judge (or sometimes a jury) must impose a sentence. Sentencing. Judges are limited by statutory provisions and guided by: .

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Chapter 9

Sentencing, Appeals, and

the Death Penalty

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Crime in the United States

If a criminal defendant pleads guilty or is found guilty by a judge or jury, then the judge (or sometimes a jury) must impose a sentence.

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Judges are limited by statutory provisions and guided by:

  • prevailing philosophical rationales

  • organizational considerations

  • presentence investigation reports

  • their own personal characteristics

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Statutory Provisions

State and federal legislative bodies enact penal codes that specify appropriate punishments for each statutory offense, or class of offense. Five types of punishments are used in the U.S.:

  • Fines

  • Probation


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Statutory Provisions

  • Intermediate punishments (more restrictive than probation but less restrictive and costly than imprisonment)

  • Imprisonment

  • Death

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Statutory Provisions

Judges in states that have indeterminate sentencingstatutes generally have more discretion in sentencing than do judges in states with determinate sentencinglaws.

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indeterminate sentencing

A sentence with a fixed minimum and maximum term of incarceration, rather than a set period.

determinate sentencing

A sentence with a fixed period of incarceration, which eliminates the decision-making responsibility of parole boards.

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Statutory Provisions

There are three types of determinate sentences:

  • flat-time

  • mandatory

  • presumptive

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Statutory Provisions

  • Flat-time sentencingdoes not include options for parole and good time.

  • Rarely used today

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flat-time sentencing

Sentencing in which judges may choose between probation and imprisonment but have little discretion in setting the length of a prison sentence. Once an offender is imprisoned, there is no possibility of reduction in the length of the sentence.

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Statutory Provisions

  • Mandatory sentencingusually allows credit for good time, but does not allow release on parole.

mandatory sentencing

Sentencing in which a specified number of years of imprisonment (usually within a range) is provided for particular crimes.

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Statutory Provisions

  • Presumptive sentencingis a compromise between legislatively mandated determinate and indeterminate sentences.

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presumptive sentencing

Sentencing that allows a judge to retain some sentencing discretion, subject to appellate review. The legislature determines a sentence range for each crime. The judge is expected to impose the typical sentence, specified by statute, unless mitigating or aggravating circumstances justify a sentence below or above the range set by the legislature.

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Statutory Provisions

In today’s “law and order” climate, state legislatures are increasingly replacing indeterminate sentences with determinate ones.

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Philosophical Rationales

Historically, four major rationales have been given for the punishment imposed by the criminal courts:

  • Retribution

  • Incapacitation

  • Deterrence

  • Rehabilitation

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Although it has probably always played some role in sentencing decisions, retribution is now increasingly popular with the public as a rationale for punishment.

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  • Incapacitationmakes it virtually impossible for offenders to commit crimes during the period of restraint.

  • Incapacitation was done historically through exile or banishment.

  • Today, incapacitation is done through imprisonment.

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There are two forms of deterrence:

  • Special or specific deterrence

  • General deterrence

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special or specific deterrence

The prevention of individuals from committing crimes again by punishing them.

general deterrence

The prevention of people in general from engaging in crime by punishing specific individuals and making examples of them.

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For much of the 20th Century, the primary rationale for punishing criminal offenders was rehabilitation.

Unfortunately, because the causes of crime are not fully understood, we don’t know how to completely correct or cure criminal offenders.

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Presentence Investigation Reports (PSI)

Generally, a presentence investigation reportis prepared by a probation officer, who conducts as thorough a background check as possible on a defendant. Sometimes a PSI includes sentencing recommendations.

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presentence investigation report

Reports, often called PSIs or PSIRs, that are used in the federal system and the majority of states to help judges determine the appropriate sentence. They are also used in classifying probationers, parolees, and prisoners according to their treatment needs and security risk.

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Defendants can appeal their convictions on legal or constitutional grounds.

Because the defendant has already been found guilty, the presumption of innocence no longer applies during the appellate process, and the burden of showing why the conviction should be overturned shifts to the defendant.

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  • Generally, an offender must file a notice of intent to appeal within 30 to 90 days after conviction.

  • Also, the defendant must file an affidavit of errors specifying the alleged defects in the trial or pretrial proceedings.

  • Appeals are rarely successful.

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Death Penalty - Enter the Supreme Court

Before 1968, the only issues the Supreme Court considered in relation to capital punishment concerned the means of administering the death penalty.

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Enter the Supreme Court

  • Currently there are five methods of execution by statute:

    • Lethal injection

    • Electrocution

    • Lethal gas

    • Hanging

    • Firing squad

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Enter the Supreme Court

Between 1968 and 1972, an informal moratorium on execution was observed as a series of lawsuits challenged the constitutionality of capital punishment.

The court set aside death sentences in 1972 for the first time ever.

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Enter the Supreme Court

In the Furman v. Georgia decision, the court held that the way the death penalty was administered was unconstitutional, but not capital punishment itself. – Arbitrary nature

  • The decision voided the death penalty laws of some 35 states, and the death sentences of more than 600 men and women were commuted to imprisonment.

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Enter the Supreme Court

By 1974, 30 states had enacted new death penalty statutes designed to meet the court’s objections. They came in two forms:

  • Mandatory statutes that mandated capital punishment for certain crimes.

  • Guided-discretion statues that provided specific guidelines for judges and juries.

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Enter the Supreme Court

  • Mandatory statutes were rejected in 1976.

  • In the Gregg decision, the court upheld the constitutionality of guided-discretion statutes.

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The Procedural Reforms Approved in Gregg

In Gregg, the court assumed, without any evidence, that the new guided-discretion statutes would eliminate the arbitrariness and discrimination that the court found objectionable in its Furman decision. The court was particularly optimistic about procedural reforms:

  • Bifurcated trials

  • Guidelines for judges and juries

  • Automatic appellate review

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Enter the Supreme Court

As of April 1, 2003, 40 jurisdictions have capital punishment statutes.

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Enter the Supreme Court

In decisions since Gregg, the Supreme Court has limited the crimes for which death is considered appropriate and has further refined death penalty jurisprudence.

  • The court has generally limited the death penalty to those offenders convicted of aggravated murder. Federal law allows more


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Enter the Supreme Court

  • The court barred states from executing inmates who have developed mental illness while on death row.

  • The court recently barred states from executing inmates who are mentally retarded.


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Enter the Supreme Court

  • Capital punishment is limited to offenders who are 18 or older at the time of the crime.

  • Death penalty statutes are constitutional even when statistics indicate that they have been applied in racially biased ways.

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Appellate Review

  • About one-third of the initial convictions or sentences in capital cases are overturned on appeal, as a result of:

    • Denial of the right to an impartial jury

    • Problems of tainted evidence and coerced confessions


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Appellate Review

  • Ineffective assistance of counsel

  • Prosecutors’ references to defendants who refuse to testify

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Prospects for the Future

Among Western, industrialized nations, the United States is the only nation to employ capital punishment.

Even where capital punishment is employed in the U.S., most jurisdictions use it rarely.

On average, about 60 executions per year