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Criminal Procedure II
Penn State School of Law
Place, Thomas


1. Introduction to Sentencing
A. History of Sentencing
i. Penitentiaries: came into use in 1700’s as part of reform movement to alleviate harshness of some forms of punishment that had come before it. Offenders could become penitent and seek God’s forgiveness.
a. Punishments before this were harsh, humiliating tactics.
ii. Per Capita Incarceration rate: United States is highest in the world.
a. In 2003, 714/100,000 U.S. residents incarcerated.
b. Probation used far more frequently than prison.
c. Community based sanctions used in order to find cost effective sanctions that are not overly lenient.

B. Purposes of Criminal Sentencing
i. Theories of Punishment
a. Prevention
• Aims to deter the criminal himself, rather than to deter others, from committing further crimes, by giving him an unpleasant experience he will not want to endure again. Questioned by many who say preventative punishment will fill the prisoner with hatred and desire for revenge against society. Others say that the rates of recidivism would be higher if not for preventative punishment.
b. Incapacitation
• Incapacitation: most serious crimes are first time
Would be great if we can figure out/ predict if the person will recommit crime and keep them in forever, but its impossible
Some recidivists statutes-reflect a view that a person who has long history of crimes poses such a threat that well keep them in forever.
Crime in jail- what penalty can dissuade this person- prisons mostly deal with it by isolating prisoner. Has a lot to do with structure of jail, number of people in facilities, overcrowding
For some crimes- when you put away one drug dealer, there is an endless line of people willing to step into that persons shoes
c. Rehabilitation
•Some recent signs that we are moving back toward this, that it makes some sense in taking into account the individuals circumstances
Basis of rehab:
1. Sentences should CHANGE an offender- assumption here is that diff crimes b/c of diff problems, unless we address them, it will lead to more crime. 2 individuals who commit same crime may end up with different sentences- leads to issue of disparate treatment. Disparate treatment became soft underbelly of rehab- critics began to examine recidivism rates/ does this really work?, had to prove that individualized treatments in fact, led to lower recidivism rate. Some said disparate treatment unconstitutional. Critics said there was no demonstrable diff with this method of tailoring sentences. Movement began to unravel this rehab. Promoters of rehab said we hadn’t put all the resources we could into it, this wasn’t really rehab, so the method that didn’t work wasn’t really true rehab. Never implemented on a scale where you could say- rehab was tested and tried for real. Resources allocated to it were minimal. Ex- vocational skills very outdated, not suitable for the real world. Critics won the debate and movement started more towards retribution
Judges had more discretion with rehab sentences,
“indefinite to 20, or indefinite to 6 if youth”: had a max b

ut cannot alone be the basis for punishment
If anyone IS actually doing the cost benefit analysis, you would also think about – what are the chances that ill get caught?
Apprehension rates probably affect people’s perception of whether or not you will engage

d(b). Special deterrence: recidivism rates have remained steady over the years
Over 50% crime is people committing another crime
Penalty under 5 years- rate very high 59-64
Penalty over 5 years- recidivism rates slump off
Incarceration usually an indicator of future crimes, for some percentage of people, putting ppl in jail early on, is a good indicator that they will return to crime
*Central problem: Jail- Marginalizes them from society (movement in beginning stages to focus on Reentry into society) most applications for commutation- for nonjail times, conviction carries a stigma forever, even for the most minimal sentences they are dramatically affected

e. Education
• Criminal punishment serves to educate the public as to the proper distinctions between good and bad conduct, distinctions when known, most of society will observe. This function is important as to crimes which are not generally known, often misunderstood, or inconsistent with current morality.