Chapter 13 Punishment and Sentencing
Past Punishments • Physical torture • Branding • Whipping • Death
Historical Precedents • Banishment and exile in Greek and Roman societies • Blood feuds settled offenses in the Middle Ages • Forfeiture of land and property was common during the feudal period • Corporal punishment, torture and death penalty used to control the criminal poor
Basic Sentencing Strategies (Models) • Indeterminate Sentencing • Determinate Sentencing • Structured Sentences • Mandatory Minimum
Indeterminate Sentence • Based on a treatment philosophy which therefore needs to be “fitted to the offender” • Recognition of the offender’s eventual return to society; focus needs to be on self-improvement • This is still the dominant form of sentencing used in the United States
Indeterminate Sentence (cont.) • Sentence has a minimum & maximum • Variations • Judge sets minimum & maximum • Legislature sets minimum, judge sets maximum • Inmate can earn time off for good behavior • Early release but continued supervision
Determinate Sentencing • In its original form: • Legislature would set maximum sentence for an offense, e.g., robbery might be 20 years • Judge could then select any term within the maximum based upon his/her evaluation of the case • When the duration of the sentence was complete, the prisoner was released • Major drawback was sentencing disparity
Structured Sentencing • A new form of determinate sentencing • Based on the just desserts philosophy and justice model • Sentence based on the seriousness of the offense • Guiding philosophy is that sentences should be fair and equal
Structured Sentencing (cont.) • Legislature sets a presumed sentence • Judge must justify deviations from the legislature’s presumption • Judge may consider: • Aggravating circumstances • Mitigating circumstances • Discretionary parole abolished
Structured Sentencing Guidelines • Crimes are placed in a severity category. • Criminals are placed in a category based on their criminal history. • Using (a) severity and (b) criminal history, legislature mandates sentences which judges then follow. Systems differ and some allow judicial modification based upon specified criteria.
Do Sentencing Guidelines Work? • Some studies show that the effects of racial and other non-legal factors have been reduced • Some studies show that racial and other non-legal factors have not been reduced effectively (e.g., minorities are more likely to have juvenile records which may be an aggravating factor)
Mandatory Minimum Sentences • Bars judicial discretion • May exclude probatio • May exclude parole • Plea bargaining, dismissals, and “under charging” used to get • around it • May cause more delays in system • May increase prison population even more
Sentencing Factors • Severity of the offense • Offender’s prior criminal record • Whether violence was used • Whether weapons were used • Whether the crime was committed for money
Facts about Capital Punishment • More than 14,500 executions since 1608 • Most executions for murder & rape • Supreme Court limits use to 1st degree murder with aggravating circumstances • Federal and state statutes list other crime
Who’s on Death Row? • Approximately 3,500 people • 98% male • Average age is 34 • Completed 11th grade • Not married
Arguments for the Death Penalty • Incapacitation • Deterrence • Moral correctness • Proportionality • Public opinion • Unlikely chance of error
Arguments Against the Death Penalty • Unfair use of judicial & prosecutorial discretion • Serious criminals escape punishment • Misplaced vengeance • Does not deter • Possibility of error
Arguments Against the Death Penalty (cont.) • Always a hope of rehabilitation • Racially biased • Brutal • Expensive and unnecessary
Legal Issues in the Death Penalty • Is the death penalty itself cruel and unusual, or is its application? • Can age and mental capacity be used to militate against the death penalty? • Does the use of “death qualified juries” bias the process against the defendant? • Who is better qualified to decide the death penalty – judge or jury?
Does the Death Penalty Deter Murder? • Considerable empirical research has been carried out on the effectiveness of capital punishment as a deterrent, especially when compared to life imprisonment. These research methods have traditionally been used: • Immediate-impact studies • Time-series analysis • Contiguous-state analysis • Using these three methods over a 60-year period, most researchers have failed to show any deterrent effect of capital punishment.