Judgement formally pronounced by court and imposed on defendant who pleads guilty or is found guilty after a trial Various sentencing models used by various jurisdictions Type and length may be determined legislatively judicially or administratively ID: 643856
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Slide1
Chapter 11
SentencingSlide2
SentenceJudgement formally pronounced by court and imposed on defendant who pleads guilty or is found guilty after a trial
Various sentencing models used by various jurisdictions
Type and length may be determined legislatively, judicially, or administrativelyMost involve combination of three
Determining SentencesSlide3
Legislative modelType and length of sentence for each crime determined by legislature and codified into criminal law
In purest form, no discretion permitted in sentencing
Also known as determinate sentenceIn contrast to indeterminate sentenceSentence
that leaves
sentencing decision up to judges or sets minimum and maximum terms and permits judge to set exact sentence in each case
Determining Sentences:
Sentencing ModelsSlide4
Judicial modelJudges are final determiners of sentences
No administrative releases are permitted
Administrative modelParole boards may grant early releases or prison administrators may reduce time served by granting good time creditsCredits that allow
reduction
of prison term because of inmate’s good behavior during incarceration
Determining Sentences:
Sentencing ModelsSlide5
In reality, pure forms of sentencing rarely occurEven during push for determinate sentences, most states left some discretionary power with
judge
Some 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 ModelsSlide6
Some states specify sentences for each type of offenseOthers classify all misdemeanors and all felonies and specify sentences (or sentence ranges) for each category
Texas statutes
Under any model, power to determine length of sentences may be altered by other factors
Determining Sentences:
Sentencing ModelsSlide7
ClemencyPower given to governor (or president, in case of federal crimes) to reduce sentence, commute life sentence, or commute death sentence
Pardon
Power given 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 ModelsSlide8
Legislature specifies normal sentence for each crime, and judges
permitted
to deviate only under specified types of circumstances, or by giving written reasons, or bothBased on assumption that it is reasonable to impose specified sentence unless significant reasons found for not doing so
Determining Sentences:
Presumptive SentencingSlide9
Guidelines established by legislatures, judges, or others (e.g., sentencing commissions) to be followed by judges in assessing
sentences
Used in presumptive sentencingSome divergence is allowed but usually must be accompanied by statement of reasons
Relevant variables used for divergence
Need not be based on previous sentencesMay be developed on basis of any reasons deemed appropriateDetermining Sentences:
Sentencing GuidelinesSlide10
Differ from state to stateWashington
Enacted Sentencing Reform Act of 1981
Legislature rejected indeterminate sentencing but recognized impossibility to eliminate all judicial discretionResult was legislative creation of presumptive sentences that retain judicial discretion
Deviation allowed, but reasons must be given
Decision subject to review by higher courtDetermining Sentences:State Sentencing GuidelinesSlide11
Trial judge may sentence outside range appropriate for particular defendant
Known as a departure
Must have either mitigating or aggravating circumstances:Mitigating circumstances
Those that do not justify or excuse a crime but that, because of justice and fairness, make crime less reprehensible
May 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 Sentencing
GuidelinesSlide12
Authorized by Sentencing Reform Act of 1984
One of most important provisions was establishment of U.S. Sentencing Commission
Goal of sentencing reform was to eliminate sentence disparity at federal levelSentencing disparityTerm used to describe
variations
and inequities that result when defendants convicted of same crime receive varying sentencesDetermining Sentences:Federal Sentencing GuidelinesSlide13
Commission recognized might be impossible to achieve two goals established by Congress
Uniformity
Congress 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 GuidelinesSlide14
Guidelines controversial from
beginning
Quickly challenged in courtsMistretta v. United States (1989)U.S. Supreme Court upheld constitutionality of guidelines
Court continued to issue opinions regarding issues raised in both state and federal cases
United States v. Apprendi (2000)Blakely v. Washington (2004)
Determining Sentences:
Federal Sentencing GuidelinesSlide15
Aimed at controlling judicial discretion, but discretion goes beyond judge
Most sentencing reforms have little or not effect on prosecutorial discretion
Juries 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 GuidelinesSlide16
Other results may occurOvercrowding
Arbitrariness and discrimination with using math formulas can occur
Guidelines may also be complicatedSystems varyDisparity may still occur when comparing jurisdictions
Disparity may still occur if good time still allowed or parole boards still used
Determining Sentences:Evaluation of Sentencing GuidelinesSlide17
Generally provides for long mandatory or life sentences for persons convicted of a third offense, usually must be a felony
California
See Focus 11.3Sentencing project study (2001)California had sentenced more than 50,000 persons under law since approved in 1994Far in excess of other states
No evidence legislation responsible for crime reduction in California
Recent Sentencing Reform Measures:“Three Strikes and You’re Out” LegislationSlide18
California’s overcrowded prisons led to litigation
Led to federal court orders to reduce prison populations
Rejection of Proposition 66 in 2004Would have resulted in release of many nonviolent offendersAlso provided third strike be violent or serious felony
State passed Public Safety and Offender Rehabilitation Services Act of 2007
Revised state correctional system in effort to comply with federal court orders imposed on stateRecent Sentencing Reform Measures:“Three Strikes and You’re Out” LegislationSlide19
Safe Neighborhoods and Schools Act
Effective in November 2015
Revised 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 47Slide20
Actual time served by offender should be closer to time allocated for sentence
Many jurisdictions establish 85% as goal
Federal 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 LegislationSlide21
Previous sentence ratio for crack versus powder cocaine set at 100:1
differentia
Act 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 2010Slide22
Law came after years of considerationU.S. Sentencing Commission recommended act be applied to cases decided before it was enacted
Congress did not agree
Issue dealt with in two casesUnited States v. Anthony Fisher (7
th
Cir. 2011)Dorsey v. United States (2012)Some states have gone farther in fair sentencing arena regarding crack and powder cocaineRecent Sentencing Reform Measures:
The Fair Sentencing Act of 2010Slide23
In July 2015, President Obama commuted sentences of 46 nonviolent drug offenders
Sentences said to be disproportionate
Granted 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 IssuesSlide24
Fall 2015, DOJ began process of releasing approximately 6,000 inmates from federal custody over four-day period
Done to alleviate overcrowding and reduce harsh penalties given to drug offenders
States also began releasing inmatesNew YorkMany jurisdictions looking at sentencing reforms as of January 2016
Recent Sentencing Reform Measures:
Current Reform IssuesSlide25
Some changes have occurredSentencing Project has publicized some considered to be “model”
Another issue is that of racial inequality
Argued 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 IssuesSlide26
U.S. Supreme Court has interpreted federal Constitution as placing some restrictions on punishment
Many cases focus on capital punishment laws in states as well as federal system
U.S. Supreme Court hears cases alleging sentences violate federal constitutional rightsState supreme courts do likewise when issues concern respective state constitutions
Constitutional Issues in SentencingSlide27
Punishment by death for those convicted
of capital
murderMost severe of all sentences imposed by governmentData on capital punishmentSee Focus 11.5Executions are decreasing
Even in state with largest number of them
TexasNebraska, 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 PunishmentSlide28
U.S. Supreme Court has never decided capital punishment per se is unconstitutional
Furman 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 penaltyConstitutional Issues in Sentencing:
Capital PunishmentSlide29
Woodson v. North Carolina (1976)
U.S. Supreme Court invalidated statute providing for mandatory imposition of capital punishment
Connecticut v. Santiago (S.C.Conn. 2015)Cannot be appealed to U.S. Supreme Court
Case involves state constitution issue
Constitutional Issues in Sentencing:Capital PunishmentSlide30
Ford v. Wainwright (1986)
I
t 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 ChallengedSlide31
Brumfield v. Cain (2015)
Death row inmate deserved opportunity to offer evidence to prove he is intellectually disabled
Panetti v. 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 ChallengedSlide32
Hall v. Florida (2014)
Florida rule was too rigid and creates unacceptable risk that persons with intellectual disability will be executed, and is thus unconstitutional
Court opinion used term intellectual disabilityDelgado v. State
(Fla. 2015)
Florida Supreme Court reversed sentence of offender diagnosed as bipolar by six medical professionalsConstitutional Issues in Sentencing:Execution of the Mentally ChallengedSlide33
Defendant also entitled, in some circumstances, to have sentences decided by jury rather than
judge
Defendant’s entitled to equal protection in way they are processed through all phases of systemsConstitutional Issues in Sentencing:
Execution of the Mentally ChallengedSlide34
May involve type of offense and length of sentence
Eighth Amendment prohibition against cruel and unusual punishment interpreted to mean sentence must be proportionate to offense for which it is imposed
Coker v. Georgia (1977)Death penalty is disproportionate for crime of rape where crime did not involve killing of victim
Constitutional Issues in Sentencing:
ProportionalitySlide35
Kennedy v. Louisiana (2008)
Capital punishment for rape but not murder of child constitutes cruel and unusual punishment
Court sated punishment may be justified by one of three rationales:RehabilitationDeterrence
Retribution
Constitutional Issues in Sentencing:ProportionalitySlide36
Issue also arises with respect to sentence lengthSome sentencing decisions reversed on appeal
Watson v. United States
(D.C.Cir. 1970)Issue can also arise in habitual offender or recidivism statutes
California
Constitutional Issues in Sentencing:ProportionalitySlide37
Glossip et 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 executionsBaze v. Rees
(2008)
U.S. Supreme Court upheld constitutionality of lethal injection as method of executionConstitutional Issues in Sentencing:Capital Punishment Execution MethodsSlide38
Lower court decisions also relevant concerning other methods
Hanging
Campbell v. Wood (9th Cir. 1994)Federal curt held hanging is not cruel and unusual punishment
Rupe
v. Wood (W.D.Wash 1994)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 MethodsSlide39
Gas chamberFierro v.
Terhune
(9th Cir. 1998)Dealt with statute that required method of gas chamber
Method held unconstitutional
Method is now lethal injectionElectrocutionProvenzano v. 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 MethodsSlide40
Ernest DeWayne Jones v. Ron Davis, No. 14-56373 (9
th
Cir., 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 MethodsSlide41
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 punishment
Court 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 unconstitutional
Other cases regarding juveniles and sentencingSee Focus 11.6Constitutional Issues in Sentencing:
The Sentencing of JuvenilesSlide42
Protection of society primary goal of punishment
Megan’s laws
Case of Megan KankaSeven year old murdered by Jesse Timmendequas, a released sex offender in 1994
Require registration
of sex offenders when they move into a communitySome jurisdictions require offenders to notify neighborsOthers
require only that law enforcement authorities be notified
Sex Offender Laws:
State Registration LawsSlide43
In 2004, case of Jessica Lunsford
Nine 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 Act
Toughest state sex offender law passed in California
Proposition 83Sex Offender Laws:State Registration LawsSlide44
Sexual Predator Punishment and Control ActEliminates good time credits for sex offenders
Increases mandatory minimum prison term
Requires 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 regularly
Contains provisions concerning use of date rape drugs and providing child pornography
Sex Offender Laws:California’s Proposition 83Slide45
Congress, beginning in 1994, began enacting series of laws named after abducted children
Aimed at requiring sex offenders to register with local authorities upon release from confinement
Some 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 2006
Includes Sex Offender Registration and Notification Act (SORNA)
Sex Offender Laws:Federal Registration LawsSlide46
Sex Offender Registration and Notification Act (SORNA)
Federal government provides grants to assist states with registering sex offenders
States 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)
Among
other things, requires registered sex offenders to register email and instant messenger addresses with National Sex Offender RegistrySex Offender Laws:Federal Registration LawsSlide47
International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders
Signed into law in February 2016Purpose is to notify foreign countries when a sex offender is traveling
Sex Offender Laws:
Federal Registration LawsSlide48
Have been numerous constitutional challenges to registration laws
Smith v. Doe
(2003) and Connecticut 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 statuteSex Offender Laws:Constitutional and Other ChallengesSlide49
Laws have been challenged as to whether they are effective
Laws based on presumption that if people know who sex offenders are and where they live, society will be protected from them
Not necessarily the caseNot all sex offenders registerEven when they do comply, they may not be apprehended when they commit subsequent crimes
Case of 11 year old Jaycee Lee
DugardSex Offender Laws:Constitutional and Other ChallengesSlide50
Human rights organizations have raised numerus issues about required registration of sex offenders
Current laws poorly crafted and ill conceived
Assumption 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 ChallengesSlide51
Some states require civil commitment of sex offenders after they are eligible for release from prison
Kansas v. Hendricks
(1997)U.S. Supreme Court upheld the Kansas civil commitment statuteKansas Sexually Violent Predator ActDefines sexually violent predator
Any 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