* Figure out state’s alternatives after Blakely
I. Social Purposes of Sentencing
a. Consequentialist
i. Justify State punishment as a means of reducing overall harms created by criminal behavior. – minimize society’s risk of harm by harming the individual.
ii. (might be associated with deterrence)
iii. Utilitarian- forward thinking
b. Deontological
i. Punishment- backward looking
ii. Retribution
iii. Punishment restores the moral balance
c. Limiting Retribution- establishes a range of punishment then within that range you can look at other concepts like rehabilitation
d. The ABA say we should consider 5 different social purposes for sentencing
1. Foster a respect for law and deter crime
2. incapacitation
3. punishment
4. restitution and reparation
5. rehabilitation (not sufficient by itself, but it may be considered with another purpose) – some consider it a watered down form of brain washing.
e. Marginal Deterrence says that an additional quantum of punishment can lead to a measurable decrease in a particular crime or all crimes.
II. Implicit Purposes of Sentencing
a. Foucault- We no longer punish the body, we punish the soul. The state is flexing their power
b. Bentham’s panopticon—Prison design where an observer can always see the prisoners and the prisoners can’t tell if they are being observed.
III. Who Sentences?
a. Legislature- First because they construct the statutory framework. Last because they are entirely dependent on other actors.
b. Judges: Impose the sentence. They decide who goes to prison, terms for non-incarcerative sentences and sometimes parole eligibility.
c. Sometimes:
i. Juries
ii. Parole Boards: Individualized release decisions
iii. Sentencing Commissions:
iv. Corrections Administrators- Give time off for good behavior and make recommendations to the parole board.
d. Victims and Witnesses initiate criminal justice action. Their availability and willingness to cooperate affect the conviction and sentencing.
e. Prosecutors: Establish priorities and determine vigor
i. Horizontal charge bargain- Prosecutor agrees to drop charges for one offense type if the ∆ pleads guilty to the remaining charges
ii. Vertical Charge Bargain- Prosecutor agrees to drop the highest charge if the ∆ pleads to the lower charge.
IV. Judges and Parole Boards During Indeterminate Sentencing
a. Indeterminate sentencing: When the legislature prescribes broad ranges and the judge sentences without meaningful explanation. The parole board actually determines the sentence.
b. Problems with Indeterminate Sentencing:
i. Opens the door for discrimination
ii. No way to predict sentencing
c. Williams v. New York (1949)- Jury recommended life- Judge imposed death. USSC held that the ∆’s rights were not violated. (chiefly to preserve trial judges rights to consider extraneous information.)
d. Oliver North
i. Judge considered rehabilitation
ii. His military history caused the judge to withhold jail time.
iii. Defense argued that the purposes of deterrence was already accomplished since he would never be a government official again
V. Parole and Indeterminate Sentencing
a. Parole: A discretionary decision to shorten time.
b. In the heyday of indeterminate sentencing there was a parole board in every state.
c. Defendant does not have counsel.
d. No Parole in the federal system.
e. Florida has a parole board but few people are eligible.
f. Some jurisdictions restrict parole, requiring a % of your time be done before eligibility or making some crimes not eligible.
g. Good time: Time off for good behavior. Can’t take off more than 15% of the sentence in most states.
VI. Jury sentencing in non- capital cases.
a. Sometimes the defendant may choose a judge or jury for sentencing. Other times the jury sentences unless both prosecution and defense agree to a judge.
b. Sometimes a judge can lower unreasonable jury sentences.
c. There has been a trend away from jury sentencing. – We seem to have decided it isn’t worth the cost of educating juries in non-capital cases.
VII. Mandatory Minimum Sentencing
a. It is an add-on to indeterminate sentencing
b. 1970: Congress did away with the last of mandatory minimums.
c. 1980’s people started to freak out about crack and we adopted mandatory minimums related to drugs, recidivism and guns.
d. Reasons for Mandatory minimums
1. Retribution
2. Deterrence
3. Incapacitation
4. Reduces Disparity- reduce judicial discretion
5. Inducement of Cooperation- The only way to get the sentence down from the minimum.
6. Inducement of
the old process in several ways:
i. Rehabilitation should not be a dominate rationale.
ii. Consolidates power that was previously exercised by sentencing judge and parole commission.
iii. Makes all the sentences basically determinate. (good behavior is the only time off)
iv. Makes the sentencing guidelines binding—but it provides for departure for aggravating or mitigating factors that were not adequately considered by the commission when formulating the guidelines.
v. Authorizes limited appellate review of the sentence if it is above the defined range. Government can appeal if it is below the range. Either may appeal the incorrect application of the guidelines.
vi. Parole eliminated
g. The commentary in the sentencing manual was authoritative unless it was unconstitutional or violated a federal statute.
h. Sentencing commission resolved circuit conflicts
i. This is way too deferential and politicized
i. There is a link between the complexity of the guidelines and judicial discretion. Lawyers and judges like to clarify exceptions and don’t know when to stop.
j. In 2003 Congress changed the composition of the commission from at least 3 federal judges to no more than 3 federal judges.
k. Judges may depart from the guidelines when the facts fall outside of the heartland of typical cases.
l. Process
i. Offense Characteristic
ii. Adjustments (minimal participant, obstructing justice)
iii. Criminal History
iv. Base offense Level +/- Adjustments and offense characteristics. Where the final offense level and the criminal history level intersect determines the range.
v. After the range is determined- you may consider departures.
m. Koon Case- (Rodney King)
i. Federal District judge lowered the sentence by 8 levels
1. 5 levels for the victim contributing to the behavior of the cops.
