Punishment and Sentencing
Chapter 9
U.S. versus the World
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U.S.- highest incarceration rate
730 per 100,000
25% of world’s prisoner population
11% in for 20+ years
mandated increased punishment
1 of 5 allowing consecutive sentences
History of Punishment
• Greece and Rome: banishment or exile
▫ Only slaves was physically punished
▫ Economic punishment
• Middle little law led to blood feuds
History of Punishment
• 12th century- “felonia” a breach of faith with
one’s feudal lord. Is today’s “felony”
• “Wergild” = man payment. Punishment was to
maintain public order. Corporal punishment for
those who couldn’t pay
History of Punishment
• 1777ish – prisoners were housed in ships
anchored in rivers & harbors
• 1820 – penitentiaries were built to house
prisoners
History of Punishment
• 135,000 transported to Australia
• Industrial Revolution
• What happen?
Modern Sentencing
• Goals
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Deterrence
Incapacitation
Retribution/ Just desert
Rehabilitation
Equity/ restitution
Modern Sentencing
• Deterrence
▫ General – more certain and more severe
punishments have greater deterrent
▫ People are afraid to break the law if they believe
they’ll be caught & punished
▫ An inefficient CJ system does not help this
▫ Average prison sentence in 1994 about 10 years
▫ Average prison sentence today about 7.5 years
▫ Actual time served has actually increased
Modern Sentencing
• Deterrence
▫ Specific – pain of punishment greater than the
benefits of criminal behavior
▫ Prison seems ineffective since 68% will reoffend
soon after release
Modern Sentencing
• Incapacitation
▫ Confinement to control criminal behavior
▫ Conflicting data
 1990 – 2009 prison population doubles & crime rate
goes down
 1980 – 1990 prison population & crime rate up
▫ Shows crime rates are tied to more than just
incarceration rates
▫ About 1.6 million in prison
Modern Sentencing
• Retribution/ Just Desert
▫ Punished fairly and justly – in proportion to the
seriousness of their crimes
▫ The punishment should fit the crime
▫ Just desert – same crime = same punishment
Modern Sentencing
• Rehabilitation
▫ Treatment so there is no further threat to the
public
▫ Public prefers policies based on punishment and
incarceration
Modern Sentencing
• Equity/Restitution
▫ Pay back victims for their loss, CJ system for the
process and society for disrupting it
▫ Financial restitution or community service
Sentencing
• Concurrent
▫ Sentences served simultaneously
▫ Most common
• Consecutive
▫ One sentence begins after the other has been
completed
▫ More serious crimes and less cooperative
defendant
Sentencing
• Indeterminate sentences
▫ Punishment tailored to fit the offender not the
crime
▫ Mostly widely used in U.S.
▫ Minimum and maximum set by statute and judge
determines what is best for the individual – with
their rehabilitation in mind
▫ Actual time served is determined by the judge and
the correctional agency
Sentencing
• Determinate
▫ Fixed term of imprisonment
▫ Sentencing guidelines give a recommended sentence –
taking into account the seriousness of the crime and
the criminal history
▫ Blakely v. Washington – guidelines a violation of 6th
amendment rights – allow for judge to consider
aggravating factors with no finding of fact
▫ U.S. v. Booker – federal guidelines unconstitutional –
they now act only as an advisory
Sentencing
• Mandatory Sentences
▫ Limits judicial discretion & tough on crime
▫ Minimum & maximum range but some
imprisonment must be imposed
▫ Prosecutorial discretion to determine whether the
person is charged under a mandatory sentencing
statute
▫ https://www.youtube.com/watch?v=c5L5hJqBeW
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Sentencing
• Three Strikes Law
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About half the states have this – not Maine
Questionable effect on deterrence
Public’s need for retribution
Upheld as Constitutional
Sentencing
• Truth in Sentencing
▫ Greater % of sentence must be served
▫ Good time credit is reduced
▫ 85% of sentence must be served – previously it
was about 50%
• Good Time Credit
▫ Can earn about 10-15 days per month
▫ Can be lost if bad behavior occurs
Sentencing Factors
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Severity of offense
Prior criminal record
If violence was used
Were weapons used?
Monetary gain
• https://www.youtube.com/watch?v=i9Wfyd0s5
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Sentencing Factors - Extralegal
• Social class
▫ Affluent more likely to receive lenient sentence
• Gender
▫ Women receive preferential treatment – chivalry
hypothesis
▫ More likely from judge than police
▫ No matter race or ethnicity
Sentencing Factors - Extralegal
• Age
▫ No clear pattern
• Race
▫ One study in Maryland indicates African Americans
receive sentences 20% longer than Caucasians
▫ African Americans are more likely to be detained
before trial
▫ Minorities less likely to be diverted from CJ system
▫ Minorities have less money for bail & private attorney
▫ Those living in poor areas get harsher sentences – no
matter their race
▫ Victim’s race may also be a factor
Sentencing Factors - Extralegal
• Victim characteristics
▫ Victim impact statement
▫ Victim characteristics – raping of a known
prostitute looked upon differently
Capital Punishment
• Arguments for
▫ Incapacitation – never pardoned, paroled or
escape
▫ Deterrence
▫ Morally correct
▫ Proportional to the crime
▫ Reflects public opinion
▫ Unlikely chance of error
Capital Punishment
• Arguments against
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Possibility of error
Unfair use of discretion
Weak public support
Little deterrent effect
No hope of rehabilitation
Race, gender & other bias
Cruel and inhuman
Expensive
Morally wrong
Capital Punishment
• Legal issues
▫ Furman v. Georgia (1972) – discretionary imposition
of the death penalty is cruel & unusual punishment
(8th & 14th amendment)
▫ Not an outright prohibition – rejected the arbitrary
manner it was imposed
▫ Only applies to intentional or felony murder
▫ Atkins v. Virginia (2002) – mentally ill cannot be
executed
▫ Roper v. Simmons (2005) – only 18 years or older can
be executed
Juveniles
• Miller v. Alabama (Decided 6-25-12)
▫ Mandatory life without parole for those under 18
is cruel and unusual punishment