Select Page

Rutgers University, Newark School of Law
Bergelson, Vera

Sentencing & Punishment   
Prof. Vera Bergelson                                                                    
Fall 2016
Text: Demleitner et al., Sentencing Law and Policy: Cases, Statutes, and Guidelines (Aspen Pub., Third Ed.)
Theories of Punishment:
Consequentialist – justifying actions by their consequences (i.e. state punishment reduces overall harm of crime)
Rehabilitation alone doesn’t justify punishment
Deontological – punishment as a moral duty (punishment rights a wrong)
Just deserts (retribution)
Populist punitativeness – politicians adopting punitive stance of population (often leads to increased incarceration and bad policies based on public opinion)
People with more information are less punitive
When given choices people don’t favor harsh sentences or minimum sentencing
A 2001 survey in US found that people believed the “lock ‘em up” strategy failed
Collective Justice – broad/increased range of punishment for range of offenders
Selective incapacitation – use criteria for smaller group to predict repeat offenses (more individual analysis)
Federal Sentencing Guidelines – uses table that incorporates prior offenses, length of punishment served
Issues include that there is no ‘first time offense’ category
Lumps together crimes above 12 months (a 13month sentence is included in the next higher category)
42 levels of offenses
Roles in group crimes (page 302)
Indeterminate sentencing – (judge has full discretion – no guidelines); now that medicine and technology has made evidence more accurate crimes are treated less like illness and not as punitive – more reform oriented
Appellate has less power in indeterminate systems because the trial court has total discretion
Rationales for Punishment:
Kant said that deterrence is unfair
Works by either increasing a punishment or using minimum sentencing
Doesn’t work for:
Violent/sexual crimes in passion
Those who aren’t caught
Plea bargains that break chain of causation between crime and punishment
Circumvented penalties
“threat communication”
Hard to measure causation between crime prediction/frequency and incarceration rates (whether it prevents further crimes)
Restorative Justice – all effected parties to the offense agree on a resolution together (i.e. sentencing circles)
Queen v. Robert James, (Australia 2005; pg 37) – D under influence breaks in and beats man in front of his daughter; repeat offender with bad family history and history of drug abuse
V wants strongest possible sentence because daughter saw beating
Court grants D 3 years (suspended) because D is turning life around and has custody of special needs daughter
Safety Valve for first time drug offenders, can be sentenced below minimum  (list of factors page 380)
Allocution – the ability of the D to speak at sentencing (it’s not a constitutional right but it’s a trial error if D is barred from speaking
Parties in Sentencing
Victims – complain to the police; non-cooperation is a big reason for charge dismissals
Police – have discretion to arrest/charge
Prosecutors – establish priorities in charging/dismissing charges; have discretion over plea bargains
Horizontal charge bargain – prosecutor drops some charges if D will plead guilty to other charges
Vertical charge bargain – prosecutor drops high charge for plea on lower charge
Sentence bargain – D pleads guilty and prosecutor gives the agreed sentence
Fact bargain – prosecutor agrees not to introduce specific evidence
Prosecutor screening process:
Early assessment (get all the information)
Reasoned selection (determine appropriate charge)
Barriers to bargain (limit available bargains)
Judges – impose sentences; can ratify (or not) the plea bargain; probation officer gives judge information (controls the flow of information)
Parole Boards – can decide when D is free after a hea

ry and the court used a reasonable amount of discretion
Appellate court looks for abuse of discretion based on reasonableness
Review of departure from guidelines includes review of factors not considered in guidelines
“100-1 Ratio” adopted in 1986
(1 gram crack = 100 grams cocaine for purposes of sentencing)
Sentencing Commission found it was problematic because:
Guidelines assume relative harm of drugs incorrectly
Meant to bust “worse” dealers but it all starts as same produce (cocaine)
Disparate effects on D’s of different races
In 2007 Commission reduced crack violations by 2 levels
Williams v. New York (SCOTUS 1949)
{under state law, judge has discretion to look at any information to sentence, including information not available to the jury or crimes that were already served}
Judge gave D death sentence based on information from probation department (NY statute allows judge to consider information outside of jury determination)
D said that this was a denial of his due process rights because he didn’t have the chance to contest the information
Judge said not all the info was ‘fit for the jury’ i.e. D was allegedly involved in three burglaries that he wasn’t convicted for (essentially hearsay)
THIS CASE – judge can use any information to sentence (jury only to answer question of guilt on charge) any information about the D is fair game in sentencing (including old acquittals, character allegations, etc.)
A crime does not make the offender
Held – due process was not violated (some courts now look more closely at extrinsic evidence used in capital sentencing)