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Chapter 11
Sentencing
SentenceJudgement formally pronounced by court and imposed on defendant who pleads guilty or is found guilty after a trialVarious sentencing models used by various jurisdictionsType and length may be determined legislatively, judicially, or administrativelyMost involve combination of three
Determining Sentences
Legislative modelType and length of sentence for each crime determined by legislature and codified into criminal lawIn purest form, no discretion permitted in sentencingAlso known as determinate sentenceIn contrast to indeterminate sentenceSentencethat leavessentencingdecision up to judges or setsminimumand maximum terms andpermitsjudge to setexactsentence in each case
Determining Sentences:Sentencing Models
Judicial modelJudges are final determiners of sentencesNo administrative releases are permittedAdministrative modelParole boards may grant early releases or prison administrators may reduce time served by granting good time creditsCredits that allowreductionofprisonterm because ofinmate’sgood behavior during incarceration
Determining Sentences:Sentencing Models
In reality, pure forms of sentencing rarely occurEven during push for determinate sentences, most states left some discretionary power withjudgeSome retained at least part of administrative modelAdministrative model prominent during period in which philosophy of rehabilitation was popularRehabilitation based on philosophy offenders should be sent to prison for indeterminate period and receive treatment
Determining Sentences:Sentencing Models
Some states specify sentences for each type of offenseOthers classify all misdemeanors and all felonies and specify sentences (or sentence ranges) for each categoryTexas statutesUnder any model, power to determine length of sentences may be altered by other factors
Determining Sentences:Sentencing Models
ClemencyPower given to governor (or president, in case of federal crimes) to reduce sentence, commute life sentence, or commute death sentencePardonPowergiven to governor (or president, in case of federal crimes) to grant act of grace that exempts offender from punishment (or further punishment, if some time has already been served)Some legislatures also give governors authority to release inmates when prison reach court-imposed maximum populations
Determining Sentences:Sentencing Models
Legislature specifiesnormal sentence for each crime, and judgespermittedto deviate only under specified types of circumstances, or by giving written reasons, orbothBased on assumption that it is reasonable to impose specified sentence unless significant reasons found for not doing so
Determining Sentences:Presumptive Sentencing
Guidelines established by legislatures, judges, or others (e.g., sentencing commissions) to be followed by judges in assessingsentencesUsed in presumptive sentencingSomedivergence is allowed but usually must be accompanied bystatementofreasonsRelevant variables used for divergenceNeed not be based on previous sentencesMay be developed on basis of any reasons deemed appropriate
Determining Sentences:Sentencing Guidelines
Differ from state to stateWashingtonEnacted Sentencing Reform Act of 1981Legislature rejected indeterminate sentencing but recognized impossibility to eliminate all judicial discretionResult was legislative creation of presumptive sentences that retain judicial discretionDeviation allowed, but reasons must be givenDecision subject to review by higher court
Determining Sentences:State Sentencing Guidelines
Trial judge may sentence outside range appropriate for particular defendantKnown as a departureMust have either mitigating or aggravating circumstances:MitigatingcircumstancesThose that do not justify or excuse a crime but that, because of justice and fairness, make crime less reprehensibleMay be used to reduce charge to lesser offenseAggravating circumstancesThose above or beyond elements required for crime but make it more seriousMay be used with other crimes, but both must be considered before capital punishment may be imposed
Determining Sentences:State SentencingGuidelines
Authorized by Sentencing Reform Act of 1984One of most important provisions was establishment of U.S. Sentencing CommissionGoal of sentencing reform was to eliminate sentence disparity at federal levelSentencing disparityTermused to describevariationsand inequities that result when defendants convicted ofsamecrime receive varyingsentences
Determining Sentences:Federal Sentencing Guidelines
Commission recognized might be impossible to achieve two goals established by CongressUniformityCongress intended for sentencing structure to result in narrowing of wide disparity in sentences received by defendants committing same offenses in different federal jurisdictionsProportionalitySentence imposed should be commensurate with severity of offense
Determining Sentences:Federal Sentencing Guidelines
Guidelines controversialfrombeginningQuickly challenged in courtsMistrettav. United States(1989)U.S. Supreme Court upheld constitutionality of guidelinesCourt continued to issue opinions regarding issues raised in both state and federal casesUnited States v.Apprendi(2000)Blakely v. Washington(2004)
Determining Sentences:Federal Sentencing Guidelines
Aimed at controlling judicial discretion, but discretion goes beyond judgeMost sentencing reforms have little or not effect on prosecutorial discretionJuries also have considerable discretionMost reforms provide guidelines apply only to prison or jail termsWide discretion permitted in imposition of alternative sentences
Determining Sentences:Evaluation of Sentencing Guidelines
Other results may occurOvercrowdingArbitrariness and discrimination with using math formulas can occurGuidelines may also be complicatedSystems varyDisparity may still occur when comparing jurisdictionsDisparity may still occur if good time still allowed or parole boards still used
Determining Sentences:Evaluation of Sentencing Guidelines
Generally provides for long mandatory or life sentences for persons convicted of a third offense, usually must be a felonyCaliforniaSee Focus 11.3Sentencing project study (2001)California had sentenced more than 50,000 persons under law since approved in 1994Far in excess of other statesNo evidence legislation responsible for crime reduction in California
Recent Sentencing Reform Measures:“Three Strikes and You’re Out” Legislation
California’s overcrowded prisons led to litigationLed to federal court orders to reduce prison populationsRejection of Proposition 66 in 2004Would have resulted in release of many nonviolent offendersAlso provided third strike be violent or serious felonyState passed Public Safety and Offender Rehabilitation Services Act of 2007Revised state correctional system in effort to comply with federal court orders imposed on state
Recent Sentencing Reform Measures:“Three Strikes and You’re Out” Legislation
Safe Neighborhoods and Schools ActEffective in November 2015Revised many classifications of crimes, lowered penalties, permitted defendants to challenge previous convictionsDesigned to reduce state prison population and costsDid not receive initial supportSee Focus 11.4
Recent Sentencing Reform Measures:California’s Proposition 47
Actual time served by offender should be closer to time allocated for sentenceMany jurisdictions establish 85% as goalFederal government offers incentives to encourage states to establish measuresFederal violent Offender Incarceration and Truth in Sentencing Incentive grantsProvides money to states for prison construction and operation if they satisfy 85%Most states have enacted such legislation
Recent Sentencing Reform Measures:Truth-in-Sentencing Legislation
Previous sentence ratio for crack versus powder cocaine set at 100:1differentiaAct replaced ratio with 18:1 disparityEliminated five-year mandatory minimum prison sentence for simple possession of crack cocaineIncreased some penaltiesContains provisions regarding drug courts and many other programs
Recent Sentencing Reform Measures:The Fair Sentencing Act of 2010
Law came after years of considerationU.S. Sentencing Commission recommended act be applied to cases decided before it was enactedCongress did not agreeIssue dealt with in two casesUnited States v. Anthony Fisher(7thCir. 2011)Dorsey v. United States(2012)Some states have gone farther in fair sentencing arena regarding crack and powder cocaine
Recent Sentencing Reform Measures:The Fair Sentencing Act of 2010
In July 2015, President Obama commuted sentences of 46 nonviolent drug offendersSentences said to be disproportionateGranted clemency to 26 inmates by March 2015Reduces sentences but does not erase convictionObama is first president to visit inside of a federal prison
Recent Sentencing Reform Measures:Current Reform Issues
Fall 2015, DOJ began process of releasing approximately 6,000 inmates from federal custody over four-day periodDone to alleviate overcrowding and reduce harsh penalties given to drug offendersStates also began releasing inmatesNew YorkMany jurisdictions looking at sentencing reforms as of January 2016
Recent Sentencing Reform Measures:Current Reform Issues
Some changes have occurredSentencing Project has publicized some considered to be “model”Another issue is that of racial inequalityArgued it exists in all phases of criminal justice systemsIssue and extent may be debated, but cannot be ignoredCommon allegations
Recent Sentencing Reform Measures:Current Reform Issues
U.S. Supreme Court has interpreted federal Constitution as placing some restrictions on punishmentMany cases focus on capital punishment laws in states as well as federal systemU.S. Supreme Court hears cases alleging sentences violate federal constitutional rightsState supreme courts do likewise when issues concern respective state constitutions
Constitutional Issues in Sentencing
Punishment by death for thoseconvictedof capitalmurderMost severe of all sentences imposed by governmentData on capital punishmentSee Focus 11.5Executions are decreasingEven in state with largest number of themTexasNebraska, in 2015, became seventh state to abolish penalty since 2007Nineteenth state to repeal death penaltyWill be on veto referendum vote in November 2016
Constitutional Issues in Sentencing:Capital Punishment
U.S. Supreme Court has never decided capital punishment per se is unconstitutionalFurman v. Georgia(1972)U.S. Supreme Court held penalty unconstitutional in some circumstancesCourt left open possibility statutes could be drafted to survive constitutional scrutinyGregg v. Georgia(1976)Court upheld constitutionality of revised Georgia statuteRequires consideration of mitigating and aggravating circumstances before imposition of penalty
Constitutional Issues in Sentencing:Capital Punishment
Woodson v. North Carolina(1976)U.S. Supreme Court invalidated statute providing for mandatory imposition of capital punishmentConnecticut v. Santiago(S.C.Conn. 2015)Cannot be appealed to U.S. Supreme CourtCase involves state constitution issue
Constitutional Issues in Sentencing:Capital Punishment
Ford v. Wainwright(1986)It is cruel and unusual punishment to execute insane or someone unaware of punishment they are about to suffer and why they are to suffer itPenry v.Lynaugh(1989)Mildly retarded persons can be executedAtkins v. Virginia(2002)Unconstitutional to execute mentally retarded offendersCourt left it to states to determine meaning of mentally retarded and provided little guidance in this area
Constitutional Issues in Sentencing:Execution of the Mentally Challenged
Brumfield v. Cain(2015)Death row inmate deserved opportunity to offer evidence to prove he is intellectually disabledPanettiv. Quarterman(2007)A mentally challenged murderer who did not have rational understanding of why state planned to execute him could not be executed
Constitutional Issues in Sentencing:Execution of the Mentally Challenged
Hall v. Florida(2014)Florida rule was too rigid and creates unacceptable risk that persons with intellectual disability will be executed, and is thus unconstitutionalCourt opinion used termintellectual disabilityDelgado v. State(Fla. 2015)Florida Supreme Court reversed sentence of offender diagnosed as bipolar by six medical professionals
Constitutional Issues in Sentencing:Execution of the Mentally Challenged
Defendant also entitled, in some circumstances, to have sentences decided by jury rather thanjudgeDefendant’s entitled to equal protection in way they are processed through all phases of systems
Constitutional Issues in Sentencing:Execution of the Mentally Challenged
May involve type of offense and length ofsentenceEighth Amendment prohibition against cruel and unusual punishment interpreted to mean sentence must be proportionate to offense for which it is imposedCoker v. Georgia(1977)Death penalty is disproportionate for crime of rape where crime did not involve killing of victim
Constitutional Issues in Sentencing:Proportionality
Kennedy v. Louisiana(2008)Capital punishment for rape but not murder of child constitutes cruel and unusual punishmentCourt sated punishment may be justified by one of three rationales:RehabilitationDeterrenceRetribution
Constitutional Issues in Sentencing:Proportionality
Issue also arises with respect to sentence lengthSome sentencing decisions reversed on appealWatson v. United States(D.C.Cir. 1970)Issue can also arise in habitual offender or recidivism statutesCalifornia
Constitutional Issues in Sentencing:Proportionality
Glossipet al. v. Gross et al.(2015)U.S. Supreme Court upheld Oklahoma’s use of a three-drug “cocktail” for executionsCourt reviewed history of cases involving execution as well as recent executionsBazev. Rees(2008)U.S. Supreme Court upheld constitutionality of lethal injection as method of execution
Constitutional Issues in Sentencing:Capital Punishment Execution Methods
Lower court decisions also relevant concerning other methodsHangingCampbell v. Wood (9thCir. 1994)Federal curt held hanging is not cruel and unusual punishmentRupev. Wood(W.D.Wash1994)Hanging may constitute cruel and unusual punishment if person is so large that hanging might result in decapitationIssue is now moot as individual will now be executed by lethal injection unless they choose hanging
Constitutional Issues in Sentencing:Capital Punishment Execution Methods
Gas chamberFierro v.Terhune(9thCir. 1998)Dealt with statute that required method of gas chamberMethod held unconstitutionalMethod is now lethal injectionElectrocutionProvenzanov. Moore(Fla. 1999)Florida supreme court ruled in favor of methodU.S. Supreme Court dismissed review of case after method changed to lethal injection by state
Constitutional Issues in Sentencing:Capital Punishment Execution Methods
Ernest DeWayne Jones v. Ron Davis, No. 14-56373(9thCir., 12 November 2015)Ninth Circuit Court of Appeals rejected lower court argument that lengthy delays in carrying out executions constitute cruel and unusual punishmentKansas v. Carr(2016)U.S. Supreme Court held case law “does not require capital sentencing courts ‘to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt’”
Constitutional Issues in Sentencing:Capital Punishment Execution Methods
Thompson v. Oklahoma(1988)U.S. Supreme Court held imposing capital punishment on 15 year old at time he committed murder constituted cruel and unusual punishmentCourt did not answer question of where age line was to be drawnRoper v. Simmons(2005)U.S. Supreme Court ruled execution of person who committed capital crime at age 17 was unconstitutionalOther cases regarding juveniles and sentencingSee Focus 11.6
Constitutional Issues in Sentencing:The Sentencing of Juveniles
Protection of society primary goal of punishmentMegan’s lawsCase of MeganKankaSeven year old murdered by JesseTimmendequas, a released sex offender in 1994Require registrationof sex offenders when they move into acommunitySomejurisdictions requireoffendersto notifyneighborsOthersrequire only that law enforcement authorities be notified
Sex Offender Laws:State Registration Laws
In 2004, case of Jessica LunsfordNine year old abducted, sexually assaulted, and murdered by sex offender, John E.CoueyCase led to push for stronger federal legislation on sex offender registrationOne became law in 2006Children’s Safety and Violent Crime Reduction ActToughest state sex offender law passed in CaliforniaProposition 83
Sex Offender Laws:State Registration Laws
Sexual Predator Punishment and Control ActEliminates good time credits for sex offendersIncreases mandatory minimum prison termRequires sex offenders released on parole to wear GPS monitoring systems for lifePermits categorizing released offenders as sexually violent predators subject to civil commitment on basis of one crimeMakes it illegal for them to live within 2,000 feet of any place children congregate regularlyContains provisions concerning use of date rape drugs and providing child pornography
Sex Offender Laws:California’s Proposition83
Congress, beginning in 1994, began enacting series of laws named after abducted childrenAimed at requiring sex offenders to register with local authorities upon release from confinementSome encouraged states to enact such legislationSome provided for federal funding for law enforcement for those who adopt Megan’s LawAdam Walsh Child Protection and Safety Act of 2006Includes Sex Offender Registration and Notification Act (SORNA)
Sex Offender Laws:Federal Registration Laws
Sex Offender Registration and Notification Act (SORNA)Federal government provides grants to assist states with registering sex offendersStates must follow federal registration requirementsMade failure to register as sex offender when required to do so a crimeKeeping the Internet Devoid of Sexual Predators Act of 2008 (KIDS Act of 2008)Amongotherthings, requires registered sex offenders to register email and instant messenger addresses with National Sex Offender Registry
Sex Offender Laws:Federal Registration Laws
International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex OffendersSigned into law in February 2016Purpose is to notify foreign countries when a sex offender is traveling
Sex Offender Laws:Federal Registration Laws
Have been numerous constitutional challenges to registration lawsSmith v. Doe(2003) andConnecticut Department of Safety v. Doe(2003)Court upheld these lawsCarr v. United States(2010)U.S. Supreme Court held SORNA does not apply to interstate travel conducted prior to passage of statute
Sex Offender Laws:Constitutional and Other Challenges
Laws have been challenged as to whether they areeffectiveLaws based on presumption that if people know who sex offenders are and where they live, society will be protected from themNot necessarily the caseNot all sex offenders registerEven when they do comply, they may not be apprehended when they commit subsequent crimesCase of 11 year old Jaycee LeeDugard
Sex Offender Laws:Constitutional and Other Challenges
Human rights organizations have raised numerus issues about required registration of sex offendersCurrent laws poorly crafted and ill conceivedAssumption most sex offenders reoffend is not founded in researchResidency restrictions have more negative impact on minorities than other groupsConcern laws are too harsh when applied to juveniles
Sex Offender Laws:Constitutional and Other Challenges
Some states require civil commitment of sex offenders after they are eligible for release from prisonKansas v. Hendricks(1997)U.S. Supreme Court upheld the Kansas civil commitment statuteKansas Sexually Violent Predator ActDefines sexually violent predatorAny person wo has been convicted of or charged with sexually violent offense and who suffers from mental abnormality or personality disorder which makes person likely to engage in predatory sexual acts of sexual violence
Sex Offender Laws:Civil Commitment Procedures

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