Chapter 11 Sentencing Sentence - PowerPoint Presentation

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