Lesson 3: The Criminal Sentence

Lesson Overview

Covered in this lesson is the underlying rationale and philosophy of criminal sentencing. Every offender found guilty of a criminal offense receives a sanction to be carried out in and overseen by the corrections subsystem. The debate between 'reform' and 'punishment' is considered as are the different attempts throughout history at remaking criminal sentencing for the benefit of the offender, society, or both. The lesson concludes with an investigation into issues and controversies surrounding criminal sentencing today, including mandatory sentences for certain types of offenses, lack of equity in sentencing offenders due to bias, and the impact of longer, harsher sentences on the criminal justice system.

Lesson Objectives

At the end of this lesson, students should be able to:

• Recognize the philosophy behind determining the goals of criminal sentences;
• Describe the structure of sentencing models, types and guidelines;
• Present the contemporary issues and controversies surrounding criminal sentencing.

Igniting Your Thoughts

Readings

1. Read Chapter 3 in Schmalleger and Smykla's Corrections in the 21st Century.


2. Read the following short newspaper article concerning an early test case for California's "Three-Strikes" sentencing model:

Man Gets Third-Strike Term Of 25-to-Life for Pizza Theft, from News Briefs in Los Angeles Times

Man Gets Third-Strike Term Of 25-to-Life for Pizza Theft Los Angeles Times TORRANCE, Calif. Jerry Dewayne Williams was sentenced to prison for 25 years to life Thursday under California's "three strikes" law for stealing a slice of pepperoni pizza. The 27-year-old Williams sat silently as Torrance Superior Court Judge Donald F. Pitts levied the sentence, citing Williams's five prior felony convictions, his habit of finding trouble, and the 1994 "three strikes" law as reasons for the punishment. Before announcing the sentence, Pitts had denied a defense motion filed by Williams' attorney, Deputy Public Defender Arnold T. Lester, which argued that a 25 years to life sentence for stealing a piece of pizza constituted cruel and unusual punishment. Williams, a 6-foot-4 warehouseman, was arrested near Craig's ice cream shop at the Redondo Beach Pier last July. He and a friend, prosecutors would contend, somewhat intoxicated and possibly playing a game of Truth or Dare, approached four youngsters dining on an extra large pepperoni pizza. Both of the men asked for a piece, and when they were told no, each took a slice anyway. In January a jury found Williams guilty of petty theft. Typically a misdemeanor, that charge was bumped up to a felony because of his prior convictions for robbery, attempted robbery, unauthorized use of a motor vehicle and possession of a controlled substance. Williams has become a poster-child of sorts for forces who say the "three-strikes" law is uneven, needlessly punitive and so costly the public will eventually have to reconsider it. "No matter how many pizza thieves it sends to prison, this law is not going to make our streets safer," said Allan Parachini, spokesman for the American Civil Liberties Union. Note: This article originally appeared in The Tech, issue 8 volume 115. It may be freely distributed electronically as long as it includes this notice but cannot be reprinted without the express written permission of The Tech. Write to archive@tech.mit.edu for additional details.

Reflection

Do you believe such sentences deter former offenders from committing more crimes (i.e. recidivating)? Do you think such sentences make communities safer? Go to the Course blog site: http://www.personal.psu.edu/dch18/blogs/CRIMJ202/. Locate the Lesson 3 Sentencing blog entry, click on Comments and post your thoughts. Read your classmates' comments and add more comments for futher discussions.

Sentencing Philosophy

The philosophy underlying criminal sentencing is that people must be held accountable for their actions and the harm they cause. Western society has a long tradition of sentencing criminal offenders to some form of punishment. Some writers have suggested that society will always need to punish criminals because punishment is a natural response to those who break social taboos (Schmalleger & Smykla, 2007:73-4). However, an equally convincing argument can be made for the criminal sentence serving as a rehabilitative or reformative tool; one that is designed to not simply reprimand offenders for their wrongdoing, but rather to also help offenders understand their behavior and refrain from committing similar acts in the future. That being said, there are several goals associated with criminal sanctions in the United States.

Sentencing Goals

The goals of criminal sentencing today are (1) revenge, (2) retribution, (3) desert, (4) deterrence, (5) incapacitation, (6) rehabilitation or reformation, and (7) restoration. (Schmalleger & Smykla, 2007:74). It is important to understand that sentence goals are not mutually exclusive; that is, a sentence can have, at its core, more than one of the goals listed above. For example, a typical term of incarceration in a state prison in the U.S. by definition achieves the goal of incapacitation and, potentially, the first 4 goals listed above. But within prison walls exist programs to rehabilitate and reform offenders in preparation of their release from the institution. Further, new programs in restorative justice in some prisons serve as opportunities for reconciliation between offenders and victims. Thus, when considering the goals (presented in detail as Exhibit 3-1 in the textbook), it should be noted that few criminal sentences are imposed that try to serve only one goal.

Building Up Your Knowledge

Sentencing Option

Legislatures establish the types of sentences that can be imposed (Schmalleger & Smykla, 2007: 83). Congress and the 50 state legislatures decide what is against the law and define crimes and their punishments for their jurisdictions (Schmalleger & Smykla, 2007: 83). Remember that for a behavior, action or inaction to be considered a 'crime,' it must be defined as such by statute. Crime is a social construction, therefore the representatives of the people must codify all proscribed social behaviors. A given criminal offense also carries a corresponding and commensurate sentence. Sentencing options include:

• Fines and other monetary sanctions
• Probation
• Alternative or intermediate sanctions (day fines, community service, electronic monitoring, and day reporting centers)
• Incarceration
• Death

We'll look into those sentencing options in terms of its types, and its model. Also, we will discuss "three-strikes laws."

Please mouse over each of the topics, and review different sub-topics.

Types of Sentences

Sentences are outlined in legal statute pertaining to the offense committed. It is important to understand that sentences can differ depending on geographic location (i.e. state by state). A sentence is normally handed down from a judge, but juries can decide sentences as well. There are a few special sentence types that deserve mention.

Mandatory Sentences

Mandatory sentences are required by law under certain extenuating circumstances. For example, in recent years some states have adopted an extra mandatory sentence for felonies committed with a firearm. Also, there has been a trend toward doling out mandatory minimum sentences for particularly heinous crimes such as assaulting a child or for habitual offenders.

Consecutive versus Concurrent Sentences

There are instances where an offender is convicted of multiple criminal offenses within one incident or where there are multiple victims of one crime. In such cases, a judge may order the sentences to be served consecutively, meaning one sentence begins after the previous one ends, or concurrently, meaning that the offender is serving all sentences at the same time and, for all intents and purposes, serves out the longest sentence of the string. Most often, sentences are handed down concurrently for a number of reasons including space constraints in prisons, but in some instances consecutive sentences are used as a means of ensuring an offender will spend considerable time behind bars. In such a case, an offender cannot be paroled for one offense if the sentence for another offense is still pending.

Sentencing Models

A model of criminal sentencing is a strategy or system for imposing criminal sanctions. Sentencing models vary widely among jurisdictions in the United States (Schmalleger & Smykla, 2007: 87). In general it can be convincingly argued that judges have far less discretion in sentencing decisions today than they previously did. The majority of sentences imposed in American courts today follow legislative and administrative guidelines (Schmalleger & Smykla, 2007: 87). The most often used contemporary sentencing models are presented here as well as in Exhibit 3-5 in the text (Schmalleger & Smykla, 2007: 87).

Indeterminate Sentencing

This is sentencing in which an administrative agency, generally a parole board, has the authority to release an incarcerated offender and to determine whether an offender's parole will be revoked for violation of the conditions of release. In one form of indeterminate sentencing, the judge specifies only the maximum sentence length (a fixed term); the associated minimum is automatically implied but is not within the judge's discretion. In the more traditional form of indeterminate sentencing, the judge specifies maximum and minimum durations within limits set by statute. The judge has discretion over the minimum and maximum sentences.

Determinate Sentencing

Sentencing to a fixed term of incarceration that may be reduced by good time. Usually explicit standards specify the amount of punishment and a set release date, with no review by a parole board or other administrative agency. Post incarceration supervision may be part of the sentence.

Presumptive Guidelines Sentencing

Sentencing that meets all the following conditions usually by appeal to a higher court:

1. the appropriate sentence for an offender in a specific case is presumed to fall within a range authorized by guidelines adopted by a legislatively created sentencing body, usually a sentencing commission;
2. judges are expected to sentence within the range or provide written justification for departure; and
3. the guidelines provide for review of the departure.

Presumptive guidelines may employ determinate or indeterminate sentencing structures.

Voluntary/Advisory Guidelines Sentencing

These are recommended sentencing policies that are not required by law. They serve as a guide and are based on past sentencing practices. The legislature has not mandated their use. Voluntary/advisory guidelines may use determinate or indeterminate sentencing structures.

Mandatory Minimum Sentencing

This is a minimum sentence that is specified by statute for all offenders convicted of a particular crime or a particular crime with special circumstances (e.g. robbery with a firearm or selling drugs to a minor within 1000 feet of a school). Mandatory minimums can be used in both determinate and indeterminate sentencing structures. Within an indeterminate sentencing structure, the mandatory minimum requires the inmate to serve a fixed amount of time in prison before being eligible for release with the approval of a parole board. Under a determinate sentence, the offender is required to serve a fixed amount of time in prison before being eligible for release.

Three-Strikes Models

Rationale

The 'get tough on crime' mentality of the late 20th and early 21st centuries has led to increased penalties for criminal offenses, particularly violent crimes, and for repeat offenders. In a number of states, such laws are known as 'three-strikes' laws. Mandatory sentences have two goals -- deterrence and incapacitation (Schmalleger & Smykla, 2007: 97). The rationale for such laws is simple: Offenders convicted repeatedly of serious offenses should be removed from society for long periods of time. Many three-strikes laws mandate a life sentence for the third violent-felony conviction.

Impacts

Analysts of three-strikes laws predicted that courts would be overwhelmed as more defendants, facing enhanced penalties, demanded jury trials. The added time to process cases and the reluctance to grant pretrial release to defendants facing long prison terms would cause jail populations to explode as the number of admissions and length of jail stays grew. The actual effects of the laws have been similar to the effects predicted but less severe. Instead of making many three-strikes laws mandatory, in most jurisdictions the legislation allowed for enhanced sentences at the discretion of the court (Schmalleger& Smykla, 2007: 99).

Exploring Resources

External Resources

• http://www.rand.org/pubs/research_briefs/RB6003/index1.html

Link to an article by the RAND Corporation on the cost effectiveness of mandatory minimum sentences for drug offenses

• http://www.aclu.org/drugpolicy/sentencing/10657prs20020522.html

An article briefly summarizing sentence differentials for offenses involving powder cocaine and those involving rock (or 'crack') cocaine. Additional ACLU links are available to chronicle the history of the sentences and the debate on this issue.

• http://www.restorativejustice.org/

A site devoted to promoting a restorative justice perspective within the United States justice system

Applying your Knowledge

Sentencing Reform

Many sentencing reforms have been an attempt to reduce disparity in sentencing and make the process more fair (Schmalleger & Smykla, 2007: 103). Although fair sentencing today often refers to fairness for victims, many suggest that any truly fair sentencing scheme must incorporate fairness for both victims and offenders (Schmalleger & Smykla, 2007:103). These are the issues related to fairness in sentencing (Schmalleger & Smykla, 2007: 103-5):

1. Proportionality - the sentencing principle that the severity of punishment should match the seriousness of the crime.
2. Equity - the sentencing principle that similar crimes and similar criminals should be treated alike.
3. Social Debt- the sentencing principle that the severity of punishment should take into account the offender's prior criminal behavior
4. Truth in Sentencing - the sentencing principle that requires an offender to serve a substantial portion of the sentence and reduces the discrepancy between the sentence imposed and actual time spent in prison

Homework

1. Read the first two articles on the previous page on mandatory minimum sentences for drug offenses and sentence differences for offenders involved with powder or rock cocaine.


2. Draft a position paper to argue either for or against keeping drug laws as they are. Present your opinion clearly and with sufficient detail.


3. Submit the position paper to the Lesson 3 Laws drop box.