Fall 2014 Sentencing Law Professor Dervan
Purposes of Punishment
· Retribution
o Has been growing in favor since the 1970s
o Punishment for committing a wrong
o Punishment is relative to that crime that was committed
§ More serious the crime longer the sentence
· Incapacitation
o Take individuals or groups and take them off the street and place them in jail so they cannot commit other crimes
o Can also occur once the individual is out of jail as well
§ For instance Sex Offenders cannot live near certain business and schools and etc.
· Deterrence
o Two types
§ Specific- All about the individual in question from committing another crime
§ General- Punishment of one individual to deter others from committing similar crimes
· Does not work as several factors influence general population
· 50% of prison population was on drugs or alcohol so would not matter
· Rehabilitation
o Primary goal is not to punish but to fix the individual in question
o Has fallen in favor even though the research shows that in some instances it works
· 18 USC §3533 question contains all four purposes of punishment. So under Federal Law the courts must consider all Theories of Punishment in fastening a sentence for a defendant
o 2(A)- Retribution
o 2(B)- Deterrence
o 2(C)- Incapacitation
o 2(D)- Rehabilitation
Sentencing Hearings
· There are no rules of evidence in a Sentencing Hearing.
o The judge may consider anything and everything that they determine is relevant.
· Proof beyond a reasonable doubt it not present in a Sentencing Hearing.
o Must only show by a preponderance of the evidence (Reasonable Certainty).
o Therefore even if you were not convicted at trial of crimes they may influence a judge in sentencing if they believe by a “Reasonable Certainty” that you committed the crime.
Who Sentences
· Judges
o Decide who goes to prison and who does not
o Further decide in indetermintive sentencing what the prison will be within the statutory maximums and minimums
o In determinative sentencing will use guidelines, not always have guidelines, to impose sentence
§ Legislature in modern times have limited the discretion that judges in the past have welded in determining what the sentence will be
§ But still have some discretion in determining the sentence will be within a small degree
o At sentencing hearings a judge may consider almost limitless amount of information and evidence in deciding a proper sentence for the current defendant.
§ Defendant has already either plead guilty or been found guilty by a jury of their peers and there are no longer any due process requirements.
· Juries
o Six States: Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia
o Arkansas Code Section 12-97-101
§ Parole and Good Time Laws
§ Criminal History
§ Delinquency in Juvenile Court
§ Victim Impact Evidence and Statement
§ Relevant Character Evidence
§ Aggravating and Mitigating Circumstances
§ Evidence Relevant to Guilt Presented in First State
§ Inadmissible Evidence in First Stage is Admissible at Sentencing
§ Rebuttal Evidence
o Jury will use the above factors to sentence the defendant who has been found guilty of the crime charged
§ Completely different from most modern and past sentencing procedures in which those in the legal profession decide what sentence should be for those convicted of crimes.
o In jurisdictions that allow Juries to sentence the judge will still have the ability to overrule if there is a major issue with the juries decision.
· Legislatures
o Decide what is and is not a crime
o Construct and can alter basic statutory framework that other officials are charged to carry out
o Give authority to those who have the power to hand out the punishments given and those who enforce the punishments upon defendants
§ Have started to take away a majority of the power of judges to sentence broad prison terms varying between defendants
o Set Mandatory Minimum Sentences limiting discretion of Judicial Power
§ Justifications:
· Retribution
o Justness for particularly serious offenses and repeat offenders
· Deterrence
o Strong deterrent value of the certainty of punishment and that the severity itself is deterrence
· Incapacitation
o Takes serious offenders off the street for a definite and substantial period of time
· Disparity
o Does not allow for wide range of sentences between defendants who have committed in essence the same crime (Creates uniformity)
· Inducement of cooperation
o Encourage offenders to assist in the investigation of criminal conducts by others.
· Inducement of please
o Valuable tool in obtaining guilty pleas saving scarce enforcement resources and increasing the certainty of at least some measure of punishment
§ Usually only occur in modern times by applying it to a broad categories and not specific crimes within themselves
· Such as whether there was a firearm present during the commission of another crime etc. etc.
trial of crimes they may influence a judge in sentencing if they believe by a “Reasonable Certainty” that you committed the crime.
· Example
o Georgia Parole Considerations
§ Guidelines for Predicting Expecting Release Date:
· Severity of crime
· Parole success likelihood
· Review of grid recommendation or board votes on other estimated date
§ Considerations by Parole Board Before Actually Granting Parole:
· Arrest and Court Records
· Interview with the individual
· Interview with the inmate
· Social Investigation
· Report on inmates time in prison
· Psych report if requested
Sentencing Guidelines
· Origins
o 19th and 20th Centuries
§ Discretionary Sentencing
o 1970s
§ Move away from individual traits related to rehabilitation
§ Move towards uniformity in sentencing
· Previous evidence of race, gender, and socio-economic factors influencing sentencing
o Marvin Frankel: Proposal for Reform
§ Problems
· Extreme Discretion
· No Consistency
· No Recorded Sentencing Reasons by the Judges
o No explanation of why and how Judges reached decisions on how to sentence defendants.
· Example
o 50 federal judges given the exact same case file and the sentences ranged from 20 years and $65,000 find to 3-year sentence and no fine.
· Federal Guidelines
o 1984 Sentencing Reform Act
§ Rejects Rehab and focuses on retribution, educational, deterrent, and incapacitate
§ Consolidates power with the Commission
§ Sentences are now all determinate. Early releases only in cases of good behavior
§ Guidelines are binding on courts
· May only depart if aggravating or mitigating circumstance not properly addressed by Commission
o In essence may only argue for departure if your case is so unique that the Commission never considered it.
· Must specifically state reason for departure
§ Limited appellate review if sentence
· Defendant may appeal if above range
· Prosecution may appeal if below range
