CRJS3001WK3READINGONLY2.pdf

p.80

5
Sentencing
The Application
of Punishment

© iStockphoto.com/vladans

Media Library

CHAPTER 5 Media Library

P R E M I U M V I D E OP R E M I U M V I D E O

C a r e e r V i d e oC a r e e r V i d e o

Rennison career video 5.1: Victim
Advocate

S AG E N e w s C l i pS AG E N e w s C l i p

SAGE News Clip 5.1: Patz Sentence

SAGE News Clip 5.2: Texting Suicide

J o u r n a l A r t i c l eJ o u r n a l A r t i c l e

Journal Article: 5.1: “Race, Ethnicity,
and Habitual-Offender Sentencing”

p.81

LEARNING OBJECTIVES

• Explain how modern sentencing
engages Aristotle’s notion of justice

• Describe the different types of
sentencing and their rationales

• Define and explain the role of
problem-solving courts

• Assess the issues surrounding
sentencing disparity

• Identify the purpose of presentence
reports and sentencing guidelines as
well as the contentious issues
surrounding them

TEST YOUR KNOWLEDGE

Test your current knowledge of the
criminal sentencing process by
answering the following questions as true
or false. Check your answers on page
390 after reading the chapter.

1. Basic principles of justice mandate
that the criminal justice system
punish every person convicted of

committing the same crime equally
regardless of other differences.

2. The only concern at sentencing is the
severity of the crime the defendant
has committed.

3. Three-strikes laws are laws that
allow states to possibly imprison for
life a person who has been convicted
of a third felony.

4. If a person is convicted of two
different crimes committed on two
different occasions, he or she must be
sentenced to consecutive terms (one
to be served after the other is
completed) of probation or prison.

5. Because victims or their survivors
can unfairly prejudice a judge against
a defendant, with the exception of
death penalty cases, victims or
survivors cannot have any input into
the sentencing decision.

6. Except for statutory limitations,
judges basically must decide on an
appropriate sentence for convicted
felons without any guidance or
advice.

7. Blacks and other minorities are
frequently subjected to discriminatory
sentencing.

8. Separate courts exist for criminals
with special problems such as drug
addiction.

9. All states use guidelines to help
judges make sentencing decisions.

VINDICTIVE VERSUS
SENSIBLE SENTENCING

“Jane” is a 30-year-old mother of three
children aged 8, 6, and 4. Her husband
recently suffered a heart attack and
died, leaving Jane with no money. Jane
has only a 10th-grade education and
cannot afford child care costs, so she
was forced onto the welfare rolls. When
Christmas came around, she had no
money to buy her children any presents,
so she took a temporary Christmas job
at the local mega store where she earned
$1,200 over a 2-month period. Jane did
not report this income to the welfare
authorities as required by law, and a
welfare audit uncovered her crime. The
terrified and deeply ashamed Jane pled
guilty to grand theft, which carries a
possible sentence of 2 years in prison,
and was referred to the probation
department for a presentence
investigation report (PSI).

“Jim” is a 32-year-old man with a
lengthy record of thefts and other
crimes committed since he was 10 years
old. Jim also pled guilty before the
same judge on the same day and was
likewise referred for a PSI. Jim had
stolen money and parts totaling $1,200
from an auto parts store during one of
his brief periods of employment.

p.82

These two cases point to a perennial
debate about the appropriate sentence
for people who commit the same crime.
Recall the classical and positivist
schools of thought discussed in Chapter
1. Although both positions are
ultimately about the role of punishment,
the classical position maintains that
punishment should fit the crime and
nothing else. That is, all people

convicted of identical crimes should
receive identical sentences regardless of
any differences they may have. The
classical position maintains that Jane
and Jim freely chose to commit the
crimes, and the fact that Jim has a
record and Jane does not is irrelevant.
The positivist position is that
punishment should fit the offender and
be appropriate to rehabilitation. Jane
and Jim’s crimes were motivated by
very different considerations; they are
very different people morally, and
blindly applying similar punishments to
similar crimes without considering the
possible consequences is pure folly.
Think about these two cases and your
own position on them as you read about
the purpose of sentencing, the way
sentencing guidelines are structured,
and the uses of the PSI.

INTRODUCTION: WHAT IS
SENTENCING?

Sentencing refers to a post-conviction stage of
the criminal justice process. A sentence is
the punitive penalty ed by the court after
a defendant has been convicted of a crime
either by a jury, in a bench trial by a judge, or
in a plea bargain. Sentencing typically occurs
about 30 days after conviction. The goals of
sentencing are to implement one or more of
the punishment philosophies discussed in
Chapter 1: retribution, deterrence,
incapacitation, or rehabilitation. In some
states juries may be entitled to pronounce
sentences, but in most states, and in federal
court, sentencing is performed by a judge—
except in death penalty cases, where it is the
jury’s responsibility. The penalties meted out
at sentencing can include various forms of

© iStockphoto.com/powerofforever

PHOTO 5.1: Fairness in sentencing is
often a difficult goal to attain, with many
factors to consider such as the type of
crime committed, the criminal history of
the offender, and the requirements of the
judicial system.

probation coupled with fines and restitution
s and/or treatment s, house
arrest/electric monitoring, work release, jail
time, prison time, or the death penalty, all of
which are discussed elsewhere in this book.
The severity of the penalty depends on the
crime or crimes of which the defendant is
convicted and the extent of his or her criminal
history, although other factors—both
legitimate and illegitimate—may also come
into play.

It is a major concern of the American criminal
justice system that punishments received by
defendants at sentencing should be consistent
with justice. Justice is a moral concept that
is difficult to define, but in essence it means to
treat people in ways consistent with norms of
fairness and in accordance with what they
justly deserve by virtue of their behavior.
Perhaps the best definition was provided by
the Greek philosopher Aristotle many
centuries ago: “Justice consists of treating
equals equally and unequals unequally
according to relevant differences” (cited in

Walsh & Stohr, 2010, p. 133). In terms of
sentencing, this means that those who have
committed the same crime and have similar
criminal histories are considered legal
“equals” and should be treated equally. Those
who have committed different crimes and
have different criminal histories are
considered legal “unequals” and therefore
should be treated unequally; that is, one
should be treated either more leniently or
more harshly than the other.

You may ask what these “relevant
differences” are and who defines them.
Strictly speaking, the relevant differences in
sentencing should be limited to legally
relevant factors (crime seriousness and prior
record), but extralegal factors are often also
brought into play such as gang affiliation, a
history of substance abuse, and a person’s
rehabilitative potential (as the opening
vignette suggested). Depending on what these
factors are, justice is either served or not
served by adding them. A judge who
sentences a remorseful mother—whose
children would become wards of the state if
she were sent to prison—to probation rather
than to prison is probably acting justly. This
may be so even if the same judge sentences to
prison an unremorseful single man who has
committed the same crime and has an
identical criminal record as the mother and,
thus, the judge is treating legal equals
unequally. On the other hand, if the judge
sentences legal equals unequally only because
one defendant is a woman and the other is a
man, or only because one defendant is black
and the other is white, then the judge is not
acting justly.

p.83

TYPES OF SENTENCES:

INDETERMINATE, DETERMINATE, AND
MANDATORY

A prison sentence a person receives can be
indeterminate or determinate. An
indeterminate sentence is one in which
the actual number of years a person may serve
is not fixed but rather is a range of years, such
as the person “shall be imprisoned for not less
than 2 or 3 years to 10 years.” More serious
crimes move both minimum and maximum
time periods upward. Indeterminate sentences
were previously much more common than
they are today, but a number of states still
retain this system. Indeterminate sentences fit
the positivist rehabilitation philosophy of
punishment because they allow offenders to
be released after they have served their
minimum period if they demonstrate to the
parole board’s satisfaction that they have
made efforts to turn their lives around. Such
sentences are tailored to the offender and
aimed at rehabilitation rather than tailored to
the crime and designed to be strictly punitive.

SAGE News Clip
SAGE News Clip 5.1: Patz Sentence

The indeterminate sentencing model prevailed
most strongly under the so-called medical
model, whereby offenders were considered
“sick” and in need of a cure. Because some

criminals may be “sicker” than others, the
time made available for the “cure” must be
flexible. Offenders who behaved themselves
in prison and could demonstrate that they
were “reformed” could be rather quickly
released; ill-behaved and stubborn offenders
might need to serve the upper boundary (10
years in the above example) and be released
whether “rehabilitated” or not. It has been
precisely because of its flexibility that
indeterminate sentencing has been accused of
contributing to sentencing disparity. For
instance, even if two offenders receive the
same “2 to 10 years,” one may serve only 2
years because he or she can keep out of
trouble and knows how to play the
rehabilitation/parole game while the other,
who is more rowdy and does not play the
game as well, may serve 2 or 3 more years.
Supporters of the model, however, will reply
that it is not the judiciary that is at fault (after
all, both offenders were sentenced identically
by judges); rather, it is the inmates themselves
who caused the discrepancy by their different
behaviors while incarcerated.

SAGE News Clip
SAGE News Clip 5.2: Texting
Suicide

Prisoners released from state prisons in 1996
served an average of only 44% of their
sentences under predominantly indeterminate

Comstock/Thinkstock

PHOTO 5.2: A defendant listens as his
sentence is announced by the judge.

sentencing structures (Ditton & Wilson,
1999). Rising crime rates during the 1980s
and early 1990s saw a groundswell of
opposition to what many saw as
“mollycoddling” criminals, and there were
many calls for longer sentences. In response
to public demands, most states enacted truth-
in-sentencing laws. These laws require that
there be a truthful, realistic connection
between the custodial sentences imposed on
offenders and the time they actually serve and
mandate that inmates serve at least 85% of
their sentences before becoming eligible for
release. In addition, many states restrict good
time credit and/or parole eligibility.

p.84

Determinate sentences became more prevalent
after the enactment of truth-in-sentencing
laws. A determinate sentence means that
convicted individuals are given a fixed
number of years they must serve rather than a
range. Under a determinate sentencing
structure, the maximum prison time for a
given crime is set by the state legislature in
state statutes. This structure is more in tune
with the classical notion that the purpose of

punishment is to deter and that all who
commit the same crime must receive a fixed
sentence. This does not mean that everyone
convicted of the same crime receives the same
set penalty. For instance, the maximum time
for burglary may be set at 15 years, and a
repeat offender may be sentenced to the full
15 years. Another person who is a young first
offender may receive only 5 years. Whatever
the sentence, offenders know under this
sentencing structure how much time they will
need to serve. Longer and more determinate
sentences satisfy the urge for greater
punishment for offenders and serve an
incapacitation function. However, time off for
good behavior is still granted.

Another type of sentencing is mandatory
sentencing, sometimes known as mandatory
minimum sentencing. Mandatory sentencing
can exist in the context of both determinate
and indeterminate sentencing structures and
simply means that probation is not an option
for some crimes and that the minimum time to
be served is set by law. It is set by law
because legislative bodies in various states
have decided that some crimes are just too
serious for probation consideration (certain
violent crimes) or have decided that there is a
particular problem, such as drug trafficking or
the use of a gun during the commission of a
crime, that requires mandatory imprisonment
as a deterrent.

Prison sentences imposed for two separate
crimes, whether they occurred during the
same incident (e.g., robbery and aggravated
assault) or in different incidents (e.g., two
separate burglaries), can be ed to be
served concurrently or consecutively. A
concurrent sentence is one in which two
separate sentences are served at the same
time. If the robbery and aggravated assault
crimes both carry sentences of 10 years, for

instance, the offender’s release date would be
calculated on the basis of 10 years rather than
20 years. A consecutive sentence is one in
which two or more sentences must be served
sequentially (one at a time). If the
robber/aggravated assaulter received two 10-
year sentences to be served consecutively, his
or her release date would be based on 20
rather than 10 years. Therefore, consecutive
sentences increase the time a person spends in
prison. The judge’s decision to impose
concurrent or consecutive sentences for
persons convicted of two crimes may rest
mainly on factors such as the seriousness of
the crimes, criminal history, plea bargain
arrangements, and offender cooperation.
Some have suggested that judges may actually
impose harsher sentences on those offenders
with the audacity to demand a trial rather than
accept a plea bargain because it makes extra
work for the judge. This philosophy has been
expressed as the judge’s warning—“You take
some of my time and I’ll take some of yours”
(Neubauer, 2008).

HABITUAL OFFENDER
STATUTES

Habitual offender (or “three-strikes-
and-you’re-out”) statutes are derived
from the same punitive atmosphere that led to
truth-in-sentencing statutes. These statutes
essentially mean that offenders with a third
felony conviction may be sentenced to life
imprisonment regardless of the nature of the
third felony. This is a way of selectively
incapacitating felons only after they have
demonstrated the inability to live by society’s
rules. This all sounds fine until we factor in
the financial costs of these sentences. Few of
us would be against the lifetime incarceration
of seriously violent offenders, but many states

include relatively minor nonviolent crimes in
their habitual offender statutes. For instance,
the U.S. Supreme Court upheld the life
sentence of a felon under Texas’s habitual
offender statute even though the underlying
felonies involved nothing more serious than
obtaining a total of less than $230 over a 15-
year period by false pretenses (fraudulent use
of a credit card and writing bad checks) in
three separate incidents (Rummel v. Estelle,
1980). Very few of us would consider this a
just sentence, and apart from the
disproportionate nature of the sentence, the
cost to the taxpayers of Texas of keeping
Rummel in custody is many thousand times
greater than the $230 he fraudulently
obtained.

JOURNAL ARTICLE
Journal Article: 5.1: “Race, Ethnicity,
and Habitual-Offender Sentencing”
CLICK TO SHOW

p.85

A life sentence still carries with it the
possibility of parole, but some life sentences
are imposed as life without parole
(LWOP). Such sentences may seem popular
with the public at large until taxpayers get the
bill. According to Nellis (2010), in 2008 there
were 140,095 prisoners serving LWOP
sentences in the United States, a 400%
increase from 1984. LWOP sentences are
usually imposed on those convicted of
murder, but habitual property offenders have
also been given such sentences. Long-term
incapacitation of violent and/or habitual
offenders is sound policy, but how much time
is enough? In one large-scale study, only one-
fifth of “lifers” who were released after long
stays (15–30 years) in prison were rearrested
within 3 years versus two-thirds of non-lifers

who were released (Mauer, King, & Young,
2004). Old age is the best “cure” for criminal
behavior that we have, so perhaps releasing
lifers after 20 to 30 years of imprisonment is
both humane and fiscally responsible. Given
the ever increasing medical needs of people as
they age, elderly inmates add a highly
disproportionate financial burden on
taxpayers.

OTHER TYPES OF SENTENCES:
SHOCK, SPLIT, AND NON-CUSTODIAL
SENTENCES

Judges have many sentencing options open to
them besides straight imprisonment. The fact
is that more than 90% of sentences imposed in
our criminal courts do not involve
imprisonment (Neubauer, 2008). One type of
sentence that does include imprisonment is
shock incarceration, also called shock
probation. This type of sentence is used to
literally shock offenders into going straight by
exposing them to the reality of prison life for
a short period, typically no more than 30 days,
followed by probation. Shock probation is
typically reserved for young, first-time
offenders who have committed a relatively
serious felony but who are considered
redeemable.

Career Video
Rennison career video 5.1: Victim
Advocate

Split sentences are sentences that require
felons to serve brief periods of confinement in
a county jail prior to probation placement. Jail
time may need to be served all at once or
spread over a certain period such as every
weekend in jail for the first year of probation
placement. This is designed to show offenders
that jail is a place to stay away from and thus
to convince them that it would be a good idea
to abide by all the conditions imposed by the
court. Another form of split sentence is work
release, whereby a person is consigned to a
special portion of the jail on weekends and
nights but is released to go to work during the
day. Thus, these mainly non-custodial
sentences typically mean a probation sentence
coupled with certain conditions that must be
followed in to remain in the community.
The conditions may involve such things as
paying fines, paying restitution, attending
drug and/or alcohol treatment programs, doing
community service, remaining gainfully
employed or be looking for work, and any
number of other more specific conditions.
These different non-custodial sentences and
probation conditions will be discussed more
fully in the chapters on probation, parole, and
treatment.

p.86

ETHICAL ISSUE

What Would You
Do?

You are a prosecutor in a state with a
strict three-strikes law. You have been
assigned the case of 46-year-old Billy
Banks, who has been arrested and

charged with burglary. Billy has two
previous felony convictions—one for
auto theft and a previous burglary
conviction—although you know he has
committed many other crimes. Billy
shoplifted merchandise worth $145 from
a local department store. This amount is
low enough to charge Billy with a
misdemeanor petty theft, but because he
admitted entering the store with the
express purpose of shoplifting he was
charged with a burglary, which is defined
as “the unlawful entry of a structure to
commit a felony or theft.” What are the
pros and cons of charging Billy under the
three-strikes law? And with what crime
would you charge him?

VICTIM IMPACT STATEMENTS

In 1982, President Ronald Reagan created the
President’s Task Force on Victims of Crime.
One of the outcomes of this was the inclusion
of victim impact statements (VISs) at
sentencing. A victim impact statement
allows persons directly affected by the crime
(or victims’ survivors in the case of murder) to
inform the court of the personal and emotional
harm they have suffered as a result of the
defendant’s actions and, in some states, to
make a sentencing recommendation. VISs are
typically incorporated into PSIs written for the
court by probation officers. The opportunity to
provide input into the sentencing decision and
the recognition that the harm is suffered by
individuals, not the state, is considered a
valuable aid in the emotional recovery of
victims and may even aid the rehabilitation of
some defendants by forcing them to confront
the harm caused by their actions (Walsh,
1986).

VISs have been challenged as prejudicial and
a return to a more conservative punitive
stance toward punishment because such
statements can lead to sympathy for the victim
and hostility toward the defendant
(Paternoster & Deise, 2011). However, in
Payne v. Tennessee (1991), the U.S. Supreme
Court upheld the constitutionality of VIS
testimony in the sentencing phase of a trial,
and all 50 states now include the use of VISs
in the form of written or oral statements at
sentencing. But how influential are they in
terms of the actual sentence imposed?
Overall, the evidence is ambiguous, although
in capital cases—where juries rather than
judges decide the sentences—they seem to be
influential (Paternoster & Deise, 2011).
Research in noncapital cases tends to show
that VISs actually have little effect on
sentencing decisions after accounting for the
effects of legally relevant variables
(seriousness of crime and prior record)
(Walsh, 1986). This sometimes leads to
resentment and dissatisfaction with the
sentencing process when victims (or their
survivors) believed that their
recommendations would carry more weight
than they did (Meredith & Paquette, 2001).

SENTENCING BY CIVIL
COMMITMENT FOR SEX OFFENDERS

The animus that society has toward criminals
is nowhere more obvious than in the case of
sex offenders. In 1997, the U.S. Supreme
Court upheld a Kansas statute (Kansas v.
Hendricks, 1997) aimed at keeping sexual
predators behind bars under civil commitment
laws after they have served their prison terms
if they demonstrate “mental abnormality.” The
decision paved the way for other states, and
for the federal government, to pass similar
involuntary commitment laws. Despite being

placed in confinement against one’s will, a
civil commitment is not considered
punishment in the eyes of the law because it is
not a decision rendered in criminal court.
Prior to 1990, civil commitments were limited
to those individuals said to suffer from mental
illness, but to cover sex offenders several
states have loosened their criterion for
commitment to “mental abnormality” as
opposed to “mental illness.”

p.87

The most notorious contemporary example is
that of Nushawn Williams (aka Shyteek
Johnson). Nushawn was convicted in 1997 of
having unprotected sex with numerous girls
and women, including a 13-year-old girl, in
drugs-for-sex encounters, knowing that he
was HIV positive. He was sentenced to 12
years in prison, but at the completion of his
sentence the state of New York refused to
release him due to its Mental Hygiene Law. In
2013, a jury determined that he was a
dangerous sex offender with a mental
abnormality and should be detained. In 2014,
the New York State Supreme Court ed
that Williams be committed to a secure
treatment facility as a sexual predator.
According to Dennis Vacco, who was the New
York attorney general when the state
legislature passed the Mental Hygiene Law,
“It was designed to keep the most vicious
sexual predators from ever getting back out on
the street, and in this instance, I couldn’t think
of anybody who is more eligible for the
application of this statute than Nushawn
Williams” (Ewing & Dudzik, 2014).

Whatever your thoughts are about sex
offenders in general, Williams had
demonstrated his wanton disregard for others,
knowingly infecting his victims with a deadly
virus. Such laws have created a category of

individuals defined as “abnormal” who may
be punished indefinitely for what they might
do if released. Some people consider these
laws to be wrong and discriminatory. Others
laud them as protecting the public from
predatory and dangerous individuals who can
almost be guaranteed to offend again if
released. What do you think?

PROBLEM-SOLVING COURTS

Problem-solving courts are alternatives to
traditional criminal courts that cannot
adequately address the problems of offenders
with special needs and other issues such as
drug, alcohol, domestic violence, and mental
health problems. These courts originated
during the late 1980s to early 1990s in
response to burgeoning rates of incarceration,
the financial costs of incarceration, the
realization that many offenders needed
treatment rather than jail or prison, and the
woeful inability of the social services system
to provide that treatment. The traditional
criminal courts have long seen the same
individuals with the same problems recycle
through them time after time. Problem-solving
courts are designed to address the underlying
causes of a person’s antisocial behavior under
the assumption that it will cease or diminish
with the alleged cause under control. These
courts largely suspend the adversarial
approach to justice in the interests of
achieving a therapeutic outcome. In other
words, the judge, prosecutor, and defense
attorney are supposed to work together
collegially along with treatment specialists
and supervising probation/parole officers to
achieve a common goal—the rehabilitation of
the offender. These courts thus promote
outcomes aimed at benefitting offenders,
victims, and society as a whole by both saving
jail and prison costs and minimizing the

probability of reoffending. Problem-solving
courts thus are novel responses to deal with
problems that affect the probability of further
criminal behavior. According to the Bureau of
Justice Assistance (2013), problem-solving
courts are characterized by the following:

• Focus on Outcomes: Problem-solving
courts are designed to provide positive
case outcomes for victims, society, and
offenders (e.g., reducing recidivism,
creating safer communities).

• System Change: Problem-solving courts
promote reform in how the government
responds to problems such as drug
addiction and mental illness.

p.88

• Judicial Involvement: Judges take a more
hands-on approach to addressing problems
and changing behaviors of defendants.

• Collaboration: Problem-solving courts
work with external parties to achieve
certain goals (e.g., developing partnerships
with mental health providers).

• Nontraditional Roles: These courts and
their personnel take on roles or processes
not common in traditional courts. For
example, some problem-solving courts are
less adversarial than traditional criminal
justice processing.

• Screening and Assessment: Use of
screening and assessment tools to identify
appropriate individuals for these courts is
common.

• Early Identification of Potential
Candidates: Use of screening and
assessment tools to determine a
defendant’s eligibility for a problem-
solving court usually occurs early in a
defendant’s involvement with criminal

justice processing.

We concentrate on drug courts, which are the
most prevalent type of problem-solving court,
in this chapter.

DRUG COURTS

Drug courts are by far the most common form
of problem-solving court in the United States.
In response to the growing drug problem, the
first drug court was established in Miami–
Dade County, Florida, in 1989. Twenty years
later, there were 2,037 drug courts active in all
50 states, growth that suggests there is much
that is positive about drug courts (Mackin,
Lucas, & Lambarth, 2010). A referral to a
drug court requires the offender to be
involved in an intensive treatment program
that lasts 2 years. Participants typically have
pled guilty to a nonviolent drug-related felony
charge. Under the supervision of the judge,
probation officers, and other caseworkers,
participants attend counseling groups and 12-
step meetings, regularly appear before a
judge, and must submit to random urine
testing. If a participant successfully completes
the program, in nearly all jurisdictions the
criminal charges will be dismissed. The U.S.
Department of Justice (Ashcroft, Daniels, &
Herraiz, 1997) provided the 10-component
model presented below for state and county
agencies implementing their drug court
systems:

1. Drug courts integrate alcohol and
other drug treatment services with
justice system case processing.

2. Using a non-adversarial approach,
prosecution and defense counsel
promote public safety while protecting
participants’ due process rights.

3. Eligible participants are identified

early …