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Southern Illinois University School of Law
Dervan, Lucian E.

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