Dr. Terry M. Mors, Ed.D.
© 2010
Sentencing
Sentencing—the imposition of a
penalty on a convicted criminal
following an impartial judicial
proceeding.
Most sentencing decisions are made
by a judge, though in some cases, such
as death penalty cases, juries are
involved.
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Traditional Sentencing Options
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Imprisonment
Fines
Probation
Death
Sentencing philosophies
 Form the basis for various
sentencing strategies
 Are intertwined with issues of
religion, morals, values, and
emotions
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Goals of Sentencing
Five goals influence modern
sentencing practices:
1.
2.
3.
4.
5.
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Retribution
Incapacitation
Deterrence
Rehabilitation
Restoration
Retribution
… the act of taking revenge on a
perpetrator.
 Early punishments were swift and
immediate.
 Death and exile were common
punishments.
 Retribution follows the Old
Testament:
“Eye for an eye.”
 Retribution holds offenders
personally responsible; they get
their “just deserts.”
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Incapacitation
…the use of imprisonment, or other
means, to reduce the likelihood that an
offender will be capable of committing
future offenses.
 In ancient times, mutilation and
amputation were used to
incapacitate.
 Incapacitation requires restraint, not
punishment.
 It is popular in the United States, as
evidenced by the increase in prison
populations. (Some call this the
“lock ‘em up” approach.)
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Deterrence
… a goal of criminal sentencing that
seeks to inhibit criminal behavior
through fear of punishment.
 It demonstrates that crime is not
worthwhile.
 Overall goal is crime prevention.
 There are two types of deterrence:
• Specific
• General
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Deterrence
Specific
Deterrence
Seeks to prevent
recidivism—repeat
offending by
convicted
offenders.
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General
Deterrence
Tries to influence
the behavior of
those who have
not yet committed
a crime yet may be
tempted to.
Rehabilitation
… the attempt to reduce the number of
crimes by changing the behavior of
offenders.
 Education, training, and
counseling are some of the vehicles
used.
 The ultimate goal is to reduce the
number of offenses.
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Restoration
… a goal of criminal sentencing that
attempts to make the victim “whole
again.”
 Crime is a violation of a person as
well as the state.
 Restorative justice addresses the
needs of the victim.
 Sentencing options focus primarily
on restitution payments.
 Vermont’s Sentencing Options
Program uses reparative probation.
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Sentencing
Different sentencing practices have
been linked to each of the goals
of sentencing.
Two models:
 Indeterminate
 Determinate (fixed)
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Indeterminate Sentencing
… A model of criminal punishment
that encourages rehabilitation via the
use of general and relatively
unspecific sentences.
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Indeterminate Sentencing
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Indeterminate sentencing allows
judges to have a wide range of
discretion.
Sentences are often given in a
range, i.e., “ten to twenty years.”
Probation and parole are options.
Degrees of guilt can be taken into
account.
Determinate Sentencing
Offender is given a fixed sentence
length.
The sentence can be reduced by
“good time.”
The use of parole is eliminated.
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Aggravating and Mitigating
Factors
Aggravating
Circumstances
relating to the
commission of a
crime that make
it
more grave than
the
average instance
of
that crime.
Call for a tougher
sentence.
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Mitigating
Circumstances
relating to the
commission of a
crime that may
be
considered to
reduce
the
blameworthiness
of the defendant.
Call for a lesser
sentence.
Presentence Investigation (PSI)
Report
Before sentencing, the judge may
request a PSI report.
PSI reports:
 Provide information on the
background of the convicted
defendant
 Are prepared by probation or
parole officers
 Come in three different forms:
long form, short form, and
verbal report
 Include the PSI report writer’s
recommendation for
sentencing
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Remembering the Victim
Since the 1970s, a grassroots
movement has called for greater
consideration of victims and their
survivors.
 Today, victims’ assistance programs
help crime victims understand the
system and their legal rights, get
counseling, file civil suits, and recoup
financial
losses.
 Victim rights advocates want to add
an amendment to the U.S.
Constitution acknowledging the
rights of victims to be present and
heard throughout the process.
Thirty-two states have amended
their constitutions.
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Victim Compensation
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Restorative justice programs
emphasize offender accountability
and victim reparation. They provide
the basis for victim compensation
funds.

All states now have legislation
providing monetary payments to
help certain victims with medical
expenses and lost wagers.

The USA PATRIOT Act makes victims
of terrorism and their families
eligible for victim compensation
payments.
Crime Victims’ Rights Act
The Crime Victims’ Rights Act is part of the
Justice
For All Act of 2004. It grants victims of federal
crimes:
1.The right to be reasonably protected from the
accused.
2.The right to reasonable, accurate, and timely notice
of any public proceeding involving the crime, or any
release or escape of the accused.
3.The right to be included in any such public
proceeding.
4.The right to be reasonably heard at any public
proceeding involving release, plea, or sentencing.
5.The right to confer with the federal prosecutor
handling the case.
6.The right to full and timely restitution as provided
by law.
7.The right to proceeding free from unreasonable
delay.
8.The right to be treated with fairness and with
respect for the victim’s dignity and privacy.
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Victim Impact Statements
The victims’ rights movement also
called for the use of victim impact
statements before sentencing. These
statements:
 Are generally in written form
 Provide descriptions of losses,
suffering, and trauma experienced
by victims or their survivors
 Are designed to help judges make
sentencing decisions
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The Death Penalty
Capital punishment means the death
penalty. It is the most extreme of all
possible sanctions and is reserved only
for especially repugnant crimes (known
as capital offenses).
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The Extent of Death Penalty
Statutes
Capital punishment is a sentencing
option is 38 states and the federal
government.
States vary considerably with
regard to the number of death
sentences given and the
number of executions.
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Court-Ordered Executions Carried
Out in the United States, 19762005
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Offenders on Death Row
On January 1, 2006, there were 3,373
people on death row in the United
States.
 98.4% male
 45.4% white
 10.5% Hispanic
 41.8% African American
 2.3% were of other races (mostly
Native American and Pacific
Islander)
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Methods of Execution
Methods of imposing death vary
by state.
 Most use legal injection.
 Electrocution, hanging,
gas chamber, and firing
squad are still on the books
as an option in at least one
state.
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Habeas Corpus Review
The average time before execution is 11
years. Most of the delay is due to
appeals.
 All death penalty cases get one automatic
appeal.
 Beyond that, inmates can receive more
appeal by filing writs of habeas corpus,
 an order directing anyone holding a
prisoner to bring him before a
judicial officer to determine the
lawfulness of the imprisonment.
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Limiting Appeals
In a move to reduce delays in
executions, the U.S. Supreme Court:
 Limited the number of appeals
(McCleskey
v. Zandt, 1991 & Coleman v.
Thompson,
1991).
 Defined standards for further
appeals from death row inmates
(Schlup v. Delo, 1995)
Further limitations were instituted by
the Antiterrorism and Effective Death
Penalty Act of 1996.
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Abolitionist and Retentionist
Positions on Capital Punishment
Arguments for
Retention
 Revenge—Only after
execution can
survivors begin to
heal psychologically.
 Just deserts—Some
people deserve to
die for what they did.
 Protection—Once
executed, the person
cannot commit
another crime.
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Arguments for
Abolition
 Innocent people
have been sentenced
to die (DNA now
plays a role).
 Sentences often
changed by appeals
courts.
 Not an effective
deterrent.
 Imposition is
arbitrary and
discriminatory.
 Far too expensive.
 Reduces society to
the level of the
criminal.
The Courts and the Death Penalty
The U.S. Supreme Court defined cruel
and unusual methods of execution in
In re
Kemmler (1890):
“Punishments are cruel when they
involve torture or lingering death;
but the punishment of death is not
cruel within the meaning of that
word as used in the Constitution.”
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Furman v. Georgia (1972)
“evolving standard of decency”
The Court invalidated Georgia’s
death penalty statute on the basis
that it allowed a jury unguided
discretion in the imposition of a
capital sentence.
 Georgia, and states with similar
statutes,
worked quickly to modify their
procedures.
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Gregg v. Georgia (1976)
The Court upheld the two-step
procedure requirements of Georgia’s
new capital punishment law as
necessary for ensuring the
separation of the highly personal
information needed in a sentencing
decision from the kinds of
information reasonably permissible
in a jury trial.
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Roper v. Simmons (2005)
Age is a bar to execution when
the offender committed the
crime when he was younger
than 18.
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Recent Court Challenges
Most recent appeals challenge state’s
capital punishment laws and tend to
focus on the procedures in
sentencing decisions.
Still, most U.S. Supreme Court justices
believe that the “death sentence” is
fundamentally constitutional. It is
the means of execution and the
population of those to be executed
(like age and mental inability) that
are coming into question.
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The Future of the Death Penalty
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There is little common ground
between death penalty advocates
and opponents.
Most people support capital
punishment under certain
circumstances. Support increased
post-September 11th.
The future of the death penalty likely
rests with state legislatures.
End/Questions?
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