Chapter 11 Sentencing and the Criminal Law
Chapter Outline
Introduction
Determining Sentences
Sentence Models
Presumptive Sentencing
Sentencing Guidelines
State Sentencing Guidelines
Federal Sentencing Guidelines
Litigation Concerning Sentencing Guidelines
Critique of Sentencing Guidelines
Recent Sentencing Reform Measures
Three Strikes and You’re Out Legislation
Truth in Sentencing Legislation
The Fair Sentencing Act of 2010
Capital Punishment
Constitutional Issues in Sentencing
Execution of the Mentally Challenged
Right to a Trial by Jury
Equal Protection
Proportionality
Cruel and Unusual Punishment
The Execution of Juveniles
Methods of Execution
Sex Offender Laws
Registration and Related Laws
Civil Commitment Procedures
Summary
Study Questions
For Debate
Key Terms
Case Analysis
Internet Activity
Notes
Key Terms
Aggravating circumstances:Circumstances that are above or beyond the elements required for the crime but that make the crime more serious.
Capital punishment: May be considered the most severe of all sentences the government imposes.
Determinate sentence: A sentence established by the legislature.
Goodtime credits: Early releases or prison administrators may reduce time served by granting theseto inmates who do not violate prison rules.
Indeterminate sentence: the legislature either does not set a term, leaves the decision to judicial discretion, or sets minimum and maximum terms and permits judges to set the actual sentence in each case.
Megan’s laws: Laws requiring the registration of sex offenders when they move to a community. Some jurisdictions require the offenders to notify neighbors; others require only that law enforcement authorities be notified.
Mitigating circumstances:Circumstances that do not justify or excuse a crime but that, because of justice and fairness, make the crime less reprehensible.
Pardon: An act of grace that exempts the offender from punishment (or further punishment if some time has already been served).
Parole:The early release of an inmate from incarceration.
Presumptive sentencing: Occurs when the legislature specifies the normal sentence for each crime, and judges are permitted to deviate only under specified types of circumstances or by giving written reasons or both.
Sentence: The judgment pronounced formally by a trial court and imposed on a defendant who pleads guilty or who is found guilty after a trial.
Sentence disparity: Used to describe the variations and inequities that result when defendants convicted of the same crime receive different sentences; it may also refer to varying legislative sentences between and among the states.
Sentencing guidelines: Viewed as a way to control judicial discretion without abolishing it and as a means of correcting the disparity that can result from individualized sentencing.
Three strikes and you’re out:Legislation that is part of a recent movement of an old philosophy that embodies enhanced penalties for repeat offenders. Generally, this modern version provides for long mandatory, or life sentences for persons who are convicted of a third offense, which usually must be a felony
Truth in sentencing: Means that actual time served by offenders should be closer to the time allocated for their sentences.
Chapter Overview
- Over the past several decades, a number of changes have been made in the approach to sentencing in the United States. The three models of sentencing determination—legislative, judicial, and administrative—have had various levels of use. These changes reflect political changes, which translate into political choices with social and economic consequences.
- One of the most recent reforms has been the use of sentencing guidelines to provide guided discretion to judges. Judges and others have not been pleased with the results, which many think are unfair.
- Other recent reforms, such as three strikes and truth in sentencing, have had similar impacts of questionable value, created much debate, increased the costs of incarceration, and seemingly had little impact on crime. Criticisms abound.
- The issue of the death penalty continues to haunt the politics of sentencing, crime, and justice. One governor called a halt to all executions in his state because 13 death row inmates were found who were clearly innocent but were convicted by overzealous prosecutors and police.
- Recent court cases have dealt with significant issues of due process, equal protection, and the question of race bias in the sentencing process.
- The questions of proportionality and cruel and unusual punishment continue to dot the legal landscape. Recent debates about both have increased the inquiry into the way we sentence in our justice system and its conformity to the Constitution.
- Methods of execution have become an issue concerning cruel and unusual punishment.
- The issue of sex offenders is also of major concern to citizens and members of the justice system. The appearance of statutes requiring the registration of sex offenders and public announcements about their residential addresses became both ubiquitous and controversial. Since most sex offenders offend against family members or close acquaintances, critics suggest the laws are both unfair and a waste of time.
Learning Objectives
After studying this chapter the student will:
- Be able to discuss sentencing models.
- Be able to explain presumptive sentencing.
- Be able to discuss federal versus state sentencing guidelines.
- Be able to explain three strikes and you’re out legislation.
- Be able to explain truth in sentencing legislation.
- Be able to discuss the pros and cons of capital punishment.
- Be able to explain some of the constitutional issues in sentencing, specifically with reference to execution of the mentally challenged.
- Know that in capital cases the accused must be tried by a jury.
- Know that the right to trial by jury is a constitutional guarantee.
- Be able to describe how race and gender are protected classes under the Fourteenth Amendment.
- Be able to discuss the Eighth Amendment and its proportionality requirement in sentencing.
- Know that the Eighth Amendment prohibits cruel and unusual punishment.
- Know that within the Eighth Amendment is a prohibition against executing juveniles.
- Be able to describe the methods of execution currently in use.
- Be able to discuss Megan’s laws and their application in sentencing.
Review Questions
- What are the primary sentencing models used in the United States?
- What is presumptive sentencing, and how is it different from determinant sentencing?
- What are the differences between state and federal sentencing guidelines?
- What is three strikes and you’re out legislation?
- What does truth in sentencing mean?
- Discuss briefly both sides of the argument regarding capital punishment.
- Explain some of the constitutional issues in sentencing.
- How does the presence of mental retardation affect sentencing in a criminal case?
- Discuss trial by jury in a capital case.
- Discuss the Fourteenth Amendment guarantee of equal protection and how it affects sentencing in criminal cases.
- What is proportionality, and where is it found in the Constitution?
- Where is cruel and unusual punishment addressed in the Constitution, and how does it affect juvenile sentencing?
- What methods of execution are used currently in the United States?
- What are Megan’s laws, and what application do they have in sentencing?
Multiple Choice Questions
1. The ______Act increases sentences for convicted sex offenders and tightens reporting and monitoring requirements in sex offender cases.
a. Megan Hearst.
b. Jessica Lundsford
c. Polly Klaas
d. Megan Kanka
2. Which of the following refers to the variations and inequities that result when defendants convicted of the same crime receive varying sentences?
a. sentence disparity
b. sentencing guidelines
c. truth in sentencing
d. presumptive sentencing
3. Which of the following refers to the power given to the governor to reduce a sentence, to commute a life sentence to a term of years, or to commute a death sentence to life?
a. pardon
b. acquittal
c. discretion
d. clemency
4. A concept requiring that actual time served by offenders is close to the time allocated for the sentence is called:
a. truth in sentencing.
b. proportionality.
c. sentence disparity.
d. sentence uniformity.
5. These laws require that released sex offenders register when they move into a community.
a. Baby Moses laws
b. child protection laws
c. Megan’s laws
d. comprehensive crime control laws
6. This was based on the presumption that if people know who sex offenders are and where they live, society will be protected from sexual abuse.
a. Megan’s laws
b. Baby Moses laws
c. the Child Protection Act of 1984
d. the Children’s Safety Act of 2005
7. The ______was designed to improve the quality of lawyers for state death row inmates as well as to provide greater access to DNA testing for those inmates who challenge their death sentences.
a. Sentencing Reform Act of 1984
b. Equal Protection Act of 1995
c. U.S. Sentencing Commission
d. Justice for All Act of 2004
8. The basis for reversing most sentences is:
a. sentencing disparity.
b. trial errors.
c. the Eighth Amendment ban on cruel and unusual punishment.
d. DNA evidence.
9. ______in sentencing means that, when there are differences, the bases for sentencing must be factors other than, for example, race or gender.
a. Equal protection
b. Proportionality
c. Disparity
d. Guidelines
10. In 1976, in ______v. Georgia,the U.S. Supreme Court upheld the constitutionality of a new Georgia statute that required a consideration of aggravating and mitigating circumstances before imposition of the death penalty.
a. Ford
b. Gregg
c. Penry
d. Furman
11. Under the ______, the federal government provides grants to assist states with registering sex offenders, provided the states follow the federal registration requirements.
a. Sex Offender Registration and Notification Act (SORNA)
b. Jessica’s Act
c. National Sex Offender Act
d. Keeping the Internet Devoid of Sexual Predators Act (KIDS Act)
12. In a(n) ______sentence the legislature either does not set a term, leaves the decision to judicial discretion, or sets minimum and maximum terms and permits judges to set the actual sentence in each case.
a. indeterminate
b. determinate
c. concurring
d. consecutive
13. In ______, the legislature specifies the normal sentence for each crime, and judges are permitted to deviate only under specified types of circumstances, by giving written reasons, or both.
a. the judicial model
b. presumptive sentencing
c. indeterminate sentencing
d. the legislative model
14. To achieve ______, Congress intended for the sentencing structure to result in a narrowing of the wide disparity in sentences received by defendants committing the same offenses in different federal jurisdictions.
a. proportionality
b. disparity
c. uniformity
d. equal protection
15. Which of the following acts provides grants to states for prison construction and operation but requires that violent offenders serve 85% of their time for the state to be eligible?
a. the Sentencing Reform Act of 1984
b. the Justice for All Act of 2004
c. the Equal Protection Act of 1995
d. the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Act of 1995
16. Which of the following is the most severe of all sentences that the government imposes?
a. rehabilitation
b. incarceration
c. probation
d. capital punishment
17. ______invalidated the New Jersey hate crime statute in a case in which the defendant entered guilty pleas to two counts of second-degree possession of a firearm for an unlawful purpose and one count of third-degree unlawful possession of a bomb.
a. Penry v. Lynaugh
b. Ring v. Arizona
c. United States v. Apprendi
d. Harris v. United States
18. As discussed in the textbook, the death penalty costs ______imprisoning someone for life.
a. less than
b. the same as
c. more than
d. Whether it costs more or less than imprisonment varies by state.
19. ______means that a sentence must be proportionate to the offense for which it is imposed.
a. Disparity
b. Proportionality
c. Equal protection
d. Uniformity
20. The ______established the U.S. Sentencing Commission.
a. Justice for All Act of 2004
b. Equal Protection Act of 1995
c. Children’s Safety Act of 2005
d. Sentencing Reform Act of 1984
Fill-in-the-Blank Questions
1. ______A method in which the legislature specifies the normal sentence for each crime and judges are permitted to deviate only under specified types of circumstances, by giving written reasons, or both.
2. ______The judgment pronounced by the court (trial judge) and imposed on a defendant who pleads guilty or who is found guilty after a trial.
3. A(n) ______sentence is one in which the legislature has set the type and length of sentence for each crime, leaving the judge little or no discretion.
4. A(n) ______sentence leaves the sentence decision up to judges or sets a minimum and maximum term and permits the judge to set the exact sentence in each case.
5. ______is a term used to describe the variations and inequities that result when defendants convicted of the same crime receive varying sentences; may also refer to varying legislative sentences from state to state.
6. ______circumstances are those that are above or beyond those required for the crime but that make the crime more serious. May be used with reference to many crimes, but the concept is critical particularly in capital punishment cases, where it is required.
7. ______A death sentence carried out in whatever fashion determined by statute.
8. ______Credits that allow the reduction of a prison term because of an inmate’s good behavior during incarceration.
9. ______Guidelines established by legislatures, judges, or others (such as sentencing commissions) to be followed by judges in assessing sentences. Some divergence is allowed, but it usually must be accompanied by a statement of reasons.
10. ______Legislation enacted in recent years and designed to impose long sentences on persons who are convicted of a third serious crime. Some jurisdictions, such as California, extend the concept to conviction for the second serious crime.
11. ______is a concept requiring that actual time served by offenders is close to the time allocated for the sentence.
12. In the ______model, judges are the final determiners of sentences; that is, no administrative releases are permitted.
13. The ______model was prominent during the period in which the philosophy of rehabilitation was popular.
14. ______is based on the philosophy that offenders should be sent to prison for an indeterminate period and receive treatment.
15. Power may be given to the governor (or the president, in the case of federal crimes) to reduce a sentence, to commute a life sentence to a term of years, or to commute a death sentence to life, a process called ______.
16. One of the most important provisions of the Sentencing Reform Act of 1984 was the establishment of the U.S. ______to develop sentencing guidelines.
17. ______means that the sentence imposed should be commensurate with the severity of the offense; an armed robbery is more serious than an unarmed robbery.
18. The case of Rita v. United States was concerned with the issue of whether a sentence in the federal guidelines is presumed to be ______.
19. California has sentenced more than ______persons under its three strikes law since it was approved in 1994.
20. In regard to truth in sentencing, many jurisdictions are establishing ___% as their goal, meaning that offenders must serve ___% of their prison sentences before they are eligible for early release.
21. The Fair Sentencing Act of 2010 focused on the disparity in sentencing for crack cocaine compared to ______cocaine.
22. In 1976, the U.S. Supreme Court invalidated a statue that provided for the ______imposition of capital punishment.
23. The U.S. Supreme Court hears cases that are alleged to have violated ______constitutional rights.
24. ______in sentencing means that when there are differences, the bases for sentencing must be factors other than, for example, race or gender.
25. The ______prohibition against cruel and unusual punishment has been interpreted to mean that a sentence must be proportionate to the offense for which it is imposed.
Short Answer Questions
1. Define mitigating circumstances. Give an example.
2. Define aggravating circumstances. Give an example.
3. What is the difference between determinate and indeterminate sentencing?
4. What are the four models involved in sentencing?
5. What are some of the discretions of prosecutors in regards to sentencing?
ANSWER KEY
Multiple Choice
1. b
2. a
3. d
4. a
5. c
6. a
7. d
8. c
9. a
10. b
11. a
12. a
13. b
14. c
15. d
16. d
17. c
18. c
19. b
20. d
Fill-in-the-Blank Questions
1. presumptive sentencing
2. sentence
3. determinate
4. indeterminate
5. sentence disparity
6. aggravating
7. capital punishment
8. good time
9. sentencing
10. three strikes and you’re out
11. truth in sentencing
12. judicial
13. administrative
14. rehabilitation
15. clemency
16. Sentencing Commission
17. proportionality
18. reasonable
19. 50,000
20. 85
21. powder
22. mandatory
23. federal
24. equal protection
25. Eighth Amendment
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