Sentencing
Sentencing is a critical phase in the criminal justice system, serving as the mechanism by which judges determine the appropriate consequences for convicted individuals. It encompasses various approaches, including fines, community service, incarceration, and capital punishment, reflecting a balance between punishment and rehabilitation. Historically, sentencing has evolved from corporal punishment to the modern use of incarceration, with a growing emphasis on rehabilitative and restorative justice methods.
In the United States, the sentencing process is influenced by multiple factors, including legislative mandates, judicial discretion, and the overarching goals of deterrence, retribution, rehabilitation, and restitution. Sentencing guidelines and mandatory minimums can restrict judicial flexibility, often leading to significant disparities in how sentences are meted out. Additionally, the role of prosecutors has expanded, often driving sentencing outcomes through plea bargains.
Defendants have limited rights during sentencing, primarily the right to legal representation, but they lack rights such as allocution, cross-examination of witnesses, or access to pre-sentence reports in many cases. This framework raises important questions about fairness and transparency within the justice system, particularly regarding how personal history and external factors can influence sentencing decisions. Overall, sentencing reflects the complexities of justice, balancing societal safety, victim restoration, and offender rehabilitation.
Subject Terms
Sentencing
SIGNIFICANCE: Sentences are not simply punishments; they may include nonpunitive responses such as psychological treatment.
Historically, when people committed acts of violence, the focus was on making matters whole again, often through restitution to the victims or the victims’ families. With the rise in state power and the inability of the peasantry to pay monetary compensation, society increasingly resorted to corporal forms of punishment such as branding, whipping, and execution. It was not until the nineteenth century that prison was accepted as a reformed method of corporal punishment.
Types of Sentences
There are currently four basic types of sentences: fines, whereby governments collect money from convicted offenders; community sentences, whereby the convicted follow behavioral rules, such as restitution or treatment programs; incarceration in jails, prisons, and community treatment facilities; and capital punishment, whereby the convicted are executed. Each year, the United States Sentencing Commission issues or amends its Guidelines Manual for sentencing. This manual contains rules and precedents set in previous cases to aid a judge in determining the appropriate sentence.
The specific blend of these sentencing forms may depend on which of five sentencing goals are held most important. Those who believe in deterrence hope that punishment will prevent offenders or potential criminals from committing additional crimes. Those who seek long prison terms hope that they can select and incapacitate future criminals. Those who focus on punishment for its own sake seek retribution for past acts. Those who focus on rehabilitation hope to teach offenders not to commit future bad acts. Those who focus on restitution hope that offenders’ future behavior will be altered through their efforts to compensate victims and that victims will regain some sense of wholeness. In addition to these sentencing goals, many argue that sentencing laws and decisions are highly responsive to political pressures and that organizational considerations such as courtroom efficiency and the capacity of the correctional system have a major impact on such decisions.
Prison sentences are either indeterminate or determinate. Indeterminate sentences give offenders both a minimum and a maximum sentence, say from five to fifteen years, whereby the corrections department is given the discretion to release inmates based on appropriate behavior. Determinate sentences set a single period of incarceration, although judges may be given the discretion to pass sentences from a wide range of possibilities. This discretion has increasingly been restricted by laws on mandatory sentencing, such as Massachusetts’s requirement of a one-year sentence for illegal firearms possession. Similarly, sentencing-guideline statutes allow judges to vary sentences only slightly, often by only a few months, in the case of multiple-year sentences. Studies have shown that between indeterminate and determinate sentencing systems, there is little overall difference in the time inmates actually serve. In the 2022 federal fiscal year, 10,390 convicted offenders were subject to serve mandatory minimum sentences.
In modern times, attempts at innovation have involved community sentences, such as shock incarceration boot camps, high-tech solutions such as electronic monitoring, and efforts to include offenders in “restoring” victims to their pre-victimized state.
Sentencing Process
The three branches of government—the legislative, judicial, and administrative—have different levels of responsibility for setting criminal sentences. A legislature takes increasing responsibility if it establishes mandatory sentences or strict sentencing guidelines. Often a judge, the prosecutor, and occasionally a jury make choices within a broad range of options set by the legislature, giving them the primary power in sentencing. Correctional officials may have significant responsibility if the sentences are indeterminate, for they largely decide when an inmate will be released from prison.
The vast majority of defendants plead guilty before trial as a result of a plea bargain with the prosecutor. Such agreements usually include sentence recommendations. Most judges either accept such agreements or must give mandatory or highly restricted sentences. Thus, many argue that prosecutors are now the most powerful sentencing agents in the criminal justice system.
Actual sentences are handed down at sentencing hearings, which, for the majority of defendants, take place either the same day or the day after they are convicted. For the majority of defendants, the only information the judge has in sentencing are attorney recommendations and the prior conviction record of the defendant. Some jurisdictions require a pre-sentence report, especially for serious crimes. A probation agent or court official gives the information to the judge for consideration after investigating the crime, its victims, and the defendant.
Legal Rights in Sentencing
Compared to the guilt phase of the criminal process, the US Supreme Court has recognized very few defendants’ rights during the sentencing phase of a criminal proceeding. Defendants have the right, under the Sixth Amendment to the Constitution, to have an attorney assist them at the sentencing hearing, but only if an actual jail or prison term is imposed. Defendants do not have the right of allocution—that is, the right to address the court on their own behalf. They also have no right to a pre-sentence report, nor do they have the right to see or comment on a pre-sentence report or to call witnesses on their own behalf unless they face the death penalty. Defendants also have no right to cross-examine witnesses or to ask that judges give reasons for their decisions.
Sentencing decisions can easily be biased by unfair information, but the US Supreme Court has said that the quantity of information is very important, saying that a judge may consider almost any information, including alleged prior criminal acts for which the defendant has not been convicted. Some lower courts have even said that judges may consider charges for which defendants have been found not guilty. Also, if judges believe that defendants lied when testifying, they can use this belief to punish defendants at sentencing. If defendants refuse to provide information about another person’s criminal activity, they can also be additionally punished at sentencing. Evidence that may not be admitted in criminal trials because it was illegally seized may be admitted during sentencing hearings. Evidence showing the impact of the crime on victims or victims’ families is allowed, as are victims’ personal characteristics. Only victims’ or family members’ opinions about how a defendant should be sentenced are not allowed.
While the US Supreme Court has recognized very limited rights for defendants, some state legislatures and courts have recognized that defendants have additional rights during sentencing, and some judges, using their discretion, may also provide defendants with such additional benefits.
Bibliography
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Byrne, James, Arthur Lurigio, and Joan Petersilia, eds. Smart Sentencing: The Emergence of Intermediate Sanctions. Newbury Park, Calif.: Sage Publications, 1992.
Demleitner, Nora V., Douglas A. Berman, Marc L. Miller, and Ronald F. Wright. Sentencing Law and Policy: Cases, Statutes, and Guidelines. New York: Aspen Publishers, 2003.
Krantz, Sheldon, and Lynn Branham. The Law of Sentencing, Corrections, and Prisoners’ Rights. St. Paul, Minn.: West Publishing, 1997.
"Steps in a Trial: Sentencing." American Bar Association, 9 Sept. 2019, www.americanbar.org/groups/public‗education/resources/law‗related‗education‗network/how‗courts‗work/sentencing/. Accessed 11 July 2024.
Stith, Kate, and Jose A. Cabranes. Fear of Judging: Sentencing Guidelines in the Federal Courts. Chicago: University of Chicago Press, 1998.
Tonry, Michael. Reconsidering Indeterminate and Structured Sentencing. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, 1999.
‗‗‗‗‗‗‗. Sentencing Matters. New York: Oxford University Press, 1996.
United States Sentencing Commission. "Mandatory Minimum Penalties." United States Sentencing Commission, 2022, www.ussc.gov/research/quick-facts/mandatory-minimum-penalties. Accessed 11 July 2024.
United States Sentencing Commission. "2023 Guidelines Manual, Annotated." United States Sentencing Commission. Office of Public Affairs, 1 Nov. 2023, www.ussc.gov/guidelines/2023-guidelines-manual-annotated. Accessed 11 July 2024.
Zimring, Franklin, and Gordan Hawkins. Incapacitation: PenalConfinement and the Restraint of Crime. New York: Oxford University Press, 1995.