Statutes, court rules, and state constitutions frequently give defendants rights during sentencing proceedings that go beyond those imparted by constitution Factors Considered at Sentencing Sentencing judges can take into considerations a defendants perjury even if they havent been charged with it yet because a D who can lie on the stand is less likely to be a good candidate for rehabilitiation A prior misdemeanor conviction obtained when an indigent D was not represented by counsel but which didnt result in incarceration can be a factor when sentencing D in a subsequent criminal case. A Ds refusal to cooperate by giving up criminal activities of others can in some cases be considered when sentencing o If D says like I cant give you names b/c they might retaliate judge can decide if thats legit and take into consideration Illegally Obtained Evidence o Supreme ct hasnt decided whether illegally obtained evidence is fully admissible o Most cts have held that such evidence is admissible during a sentencing hearing, at least when the searchs purpose was not to find evidence to enhance Ds sentence. Cts weighed the costs of applying the 4th Amendment exclusionary rule against the benefits of applying the rule in the sentencing contexts One of the costs is the withholding of evidence- which can lead to imposition of overly lenient or otherwise inappropriate penalties on convicted offenders Costs generally outweigh any benefit that exclusion of evidence might have in deterring violation s of the 4th by police officers. CTs reasoned that suppression of evidence has deterent effect by making that evidence inadmissible in trial, but inadmissibility at sentencing hearing wont yield much if any benefit in terms of deterrence- unless violation occurred for purpose of locating evidence to enhance Ds sentence. Victim impact statements ARE allowed at sentencing hearings o But families cannot give descriptions and opinions of Ds crimes Ch. 4- Sentencing Statutes and Guidelines Two central decisions that must be made when sentencing a criminal defendant o 1. The In-Out Decision: Should D be sentenced to prison or should they be punished in the community? o 2. Length, Amount, and Conditions of Sentence Indeterminate Sentencing Statutes
o Judge imposes sentence ranging of time falling in parameters set by the
legislature One argued advantage of parole system is that parole boards, drawing on advice of correctional officials who have been able to closely observe prisoners during confinement can best determine when a prisoner is ready to be released Also claim that parole system relieves prison crowding Two major problem stem from indeterminate sentencing structures First, they generate uncertainty- augmenting stress and tension that inevitably attend incarceration- this stress and tension an interfere w rehabilitation. Prisoners may also start to resent others when they see other inmates be released on parole while theyre stuck Second- theres an enormous disparity in length of confinement of comparable prisoners that can result from reltively uncurbed sentencing discretion of judges Determinate Sentencing Statutes o Determinate-Discretionary Sentencing Judge selects sentence from range set by legislature- judge, not parole board defines amount of time that person will be confined Althuogh such statutes delineate the range from which a judge will select a finite prison sentence for a particular crime, other statutes often authorize the judge to impose a community-based sanction if imprisonment is unnecessary Also the sentence judge imposes can be reduced by good-time credits- sentenced reduced Earned-time is also a thing- prisoners must work, school, or participate in other programs that make it more likely they wont commit crimes when they get out o Presumptive Sentencing Defines presumptive sentence that legislature wants imposed for a certain crime. One of the problems with this is presumptive sentencing statutes tend to fall prey to political pressures They rarely are determined by legislautres thoughtfully reading research to decide appropriate sentences, instead its response to legislatures competing to show the public how tough they can be on crime o Mandatory Sentences Statutes require offenders serve at least a specified amount of time in prison for particular crimes Lots for drugs Three Strikes law is a type of mandatory sentence Makes lawmakers look tough
But in reality mandatory minimum sentences are easily
circumvented Often circumvented because their own rigidity can lead to imposition of unjust sentences o Sentencing Guidelines Two types, 1) presumptive 2)advisory Presumptive: sentences drafted by sentencing commission by using a grid Advisory: give judges more discretion than presumptive o Serve as starting point for judge Federal sentencing guidelines have been subject to harsh criticism o They are based on incorrect premise that incarceration is the only form of tough punishment o They were also drafted without regard to available prison resources
Ch. 5- Community Based Sanctions
Community based sanctions offer a lot of advantages o 1. Cheaper than incarceration o 2. If offfenders are employed they can continue to work if punished within the community, enhancing their rehabilitation prospects and the likelihood that they will be able to pay restitution to the victims of their crimes o 3. Economic burden on taxpayers that stems from punishment of criminal offenders can be diminished further as offenders working within the community pay taxes and support their families instead of having the public support them through welfare o 4. If offenders remain in the community, family ties can be preserved which in turn will enhance likelihood that rehabilitative endeavors will be successful. o 5. Offenders can avoid the criminogenic influences that prevail in prisons and jails, the dependency that incarceration fosters, and the psychological harm that often comes with confinement o 6. Crowding in jails can be alleviated or avoided making correctional facilities safer and easier to manage and less likely to be embroiled in litigation Community based Sentencing Options o Probation One of most frequentl imposed criminal sanctions Probation sentences can vary greatly Intensive supervision probation can be utilized for offenders needing more supervision, generally required to meet w probation officers several times a week and subject to random house visits and drugs tests, frequently required to get substance-abuse treatment and work or go to school Probation can be combined with incarcerative sentences
o o
Split sentence- go to jail then get period of probation
Shock incarceration- offenders placed in boot camps, confined for usually 3-6 months and subject to strict discipline, physical exercise, and hard labor Researches have found boot camps dont have lower recidivism rates compared to community penalties or incarceration o Boot camps lack treatment programs that help offenders address problems that contributed to their criminal choices Day Reporting Centers Centers vary in how they operate, common pattern is for offenders to report to a center every day and write itinerary for the day and where they will be at all times. Staff members confirm throughout the day they are where they said they will be Offenders can also be required to spend a defined amount of time at day reporting center itself- partaking in mandated educational, counseling, or other treatment programs. Home Confinement- Electronic Monitoring Fines Europe uses fines a lot Advantageous in many ways Frees up resources that can be used for the supervision or incarceration of offenders for whom such supervision or incarceration is necessary Fines underutilized in US US currently lacks collection and payment monitoring systems needed to enforce these fines Restitution, Fees, and Denial of Government Benefits Primary purpose of restitution is to compensate victim for injuries caused by the rime Restitution has to be amount that they can pay, or else theres a real risk the order will induce the offender to rob Peter to pay Paul Another type of financial penalty is to require offenders to defray costs of processing their cases through criminal justice system Residential fees for offenders stayig in work-release centers or other correctional residential facilities Restitution collection fees, Fees for substance abuse treatment Probation supervision fees Community service fees House arrest fees Community Service
Pay back community for harm caused
Many Advantages But its rarely used One of chief roadblocks to widespread imposition is lack of central agency in many jx that would coordinate and implement community service sentences Comprehensive and Integrated Corrections Systems o Needs to be structure in place to ensure that these sanctions are achieving their objective and operating as cost-effectivlely as possible o ABA thinks states should establish presumption that community based sanction is the most appropriate penalty for the following types of offenders Those convicted of misdemeanors Those convicted of nonviolent felonies Those who violate a condition of their probation Some JX have established drug courts, tailor their responses to drug violations
Chapter 6- The Death Penalty
Constitutionality in General o Not per se unconstitutional o Three penological objectives are arguably furthered by death penalty Retribution Incapacitation (once people are dead, they can and will commit no further crimes) Deterrence Racial Disparity in the Imposition of the Death Penalty o Studies found race has bearing on likelihood of receiving penalty Vague and Mandatory Death Penalty Statutes o Court held death penalty statutes that mandate imposition of death penalty are unconstitutional (violates 8th amendment) 1. It conflicts with societal standards of decent 2. Second reason for saying it violates 8th was that it left decision whether to impose death penalty within uncurbed discretion of the jury 3. Third reason is that it abridged right of defendants under 8th amendment to an individualized sentencing determination in a capital case mandatory death penalty statutes lump all first degree murders into an amorphous mass, treating all of them as deserving of death sentence Right to Present Mitigating Evidence in Capital Cases Death Sentence for Rape o Death penalty cant be imposed Death Sentence for Felony Murder o Death sentence can be used RARELY for felony murder
Death Sentence for Retarded Defendents
o Ds mental retardation is a mitigating circumstance, but executing a rere is NOW unconstitutional o It conflicts with our evolving standards of decency o They also are at special risk for wrongful execution because they are more likely to confess to a crime that theyre innocent and are often inept witnesses, and their mental deficiencies impede their ability to assist their lawyers in preparing & presenting their defense Death Sentence for Juveniles o Nope Insane Prisoners o Cant execute insane people Modes of Execution o Most jx use lethal injection o Firing squad and electric chair arent unconstitutional o To see if a method of execution is cruel and unusual. See whether their execution method creates untoward, readily avoidable risk of inflicting severe and unnecessary pain Three factors are weighed 1. Degree of risk that the execution ethod will cause significant pain 2. The severity of this pain 3. The existence of readily available alternative that will increase materially the likelihood that the prisoner will not suffer pain Policy Debate around death penalty o Errors, innocent people being sentenced to death
Chapter 7- Cruel and Unusual punishment and NonCapital Cases