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Sentencing
University of Mississippi School of Law
Mason, Donald R.

SENTENCING
Prof. Mason
Spring 2007
 
                                                                                                                                    1/8/07
 
Who imposes sentences?
Judge
Juries
Prosecutors
Defense attorney
Defendant/Accused
Victims – through impact statements; testifying; reporting the crime
Family & friends of Defendant
Probation officers
PSI reports
Legislators
Community resources
Public/General community
Police – have discretion as to which crimes they’ll investigate, etc.
Media
Grand jury
Executive agencies – like parole board
Governor
Can grant executive clemency – may be a pardon. 
 
2 Recent Cases to be familiar with:
Blakeley v. Washington
Booker v. U.S.
 
3 distinct sentencing worlds/approaches:
(1) Indeterminate Sentencing System – judge discretion
(2) Determinate Sentencing System – incl. guidelines; abolishes parole system, b/c sentence is set in stone. 
(3) Capital Sentencing System – bifurcated process;
 
Possible Dates for Parchman tour:
E-mail your preference.
Either Feb. 16 or 23..
 
1/10/07
 
Quiz:
“Rule of thumb” – came from idea that it was generally acceptable to beat your wife for insolence, as long as the stick was as small as your thumb; just relating to the idea of punishment;
Prisons, as we know them, have been consistently in use since the 1500s – False – Began in regular use in US in the 1700s. Prisons, as we know them, 1st were created in the US, and was created by the Quakers as an attempt to have more humane punishment and become penitent and reform. 
The incarceration rate in the US is the 3rd highest among industrialized nations, trailing only those in China and Japan – False – US has the highest rate (714/100K);
Which is more commonly imposed in the US – incarceration or probation?
Probation – more than twice as many people are serving probation. 
Sanction options available to sentencing courts:
Incarceration – can also lump house arrest in under this option or consider it separately b/c its still deprivation of liberty, but depends on the limitations which are placed on this as to whether it is
Probation –
Community Service
Restitution – mandated in most jurisdictions
Capital punishment
Humiliation-type punishments
Fines
Total # of sanction options available to sentencing courts? Don’t know – some are prescribed by statute, but the range of options is limitless. 
What is the broadest purpose of the criminal law?
Crime control – are to make people do what society regards as desirable and prevent them from doing what is undesirable.
Does the criminal law encourage positive behavior?
                                                              i.      No
What is the “inclusive theory of punishment”?
 
 
Questionnaire
Purposes of Punishment:
General Deterrence
Specific Deterrence
Incapacitation
Retribution
Rehabilitation
Restitution
Education
 
Each of the various theories of the purpose of punishment has gone through phases of acceptance. Popularity tends to ebb and flow. 
Rehabilitation for example – hasn’t been shown to be terribly effective through the high rates of recidivism. 
“Just desserts”
“Inclusive theory of punishment” – is that all these theories come into play in one way or another and to varying degrees. So, in any case, do we have to come up w/ some kind of a rank order?
These purposes can be roughly grouped together
Retribution – doesn’t fit in with any other category – b/c its purely punitive in nature;
The other categories are all considered consequential in nature vs. retribution which is deontological (held in highest esteem by those who seek to punish wrongful acts b/c they are wrong regardless of other reasons);
Other categories = utilitarian – have some benefit; something we’re hoping to gain.
Retribution = hope simply to punish; nothing to gain;
In most murder cases, we consider only retribution, and do not look to the d’s health or mental state. 
Anothe

e’d be better at deterrence, if for a typical offense we’d have a set term (2 years), and we’d prosecute offender within 12 months.???
Should the punishment fit the crime or the offender?
Since the ‘70s, we’ve seen diff. ways that structure discretion for the purposes of effecting greater consistency/reducing disparity. 
On other hand, most jurisdictions still allow for a great amount of discretion. 
 
Offense Conduct (crime)
# of offenders, crime committed, degree of harm done
Offender Characteristics:
Criminal history – who committed it, what they did, etc.
How much should character matter? Employability? Job skills?
Or should criminal conduct matter more?
 
 
These 2 above concepts come up in the cases we’ve mentioned today. 
Courts may make certain findings about the particular offender.
 
Re-read Bergman case ***
 
Restorative Justice (p. 25)
* Chart –
 
                                                                                                                                    1/24/07
 
State Research Assignments –
no written report
(1) Look at what statutes, rules, or state law sets states sentencing policy, purposes, etc. Can you find any specific statute or rule? Correctional policy statement???
Some states have them – esp. guidelines states
(2) Statutes, rules or case law regarding procedure required for rendering & acceptance of guilty pleas. (every juris. will have them)
(3) Whether the state has sentencing guidelines??
 
Restorative Justice: p. 22
Principle of restorative justice is to repair the injuries to victims and the community