Sentencing

Criminal Procedure: Sentencing

Introduction to Sentencing

Once guilt has been determined, either by verdict following a trial or by the entry of a guilty plea, the defendant must be sentenced. Generally, the trial judge imposes the sentence, which must be within the statutory limits set by the legislature for the crime in question. In a few states, the jury fixes the sentence. Available sentences include fine, forfeiture (loss of property), restitution, probation, some form of incarceration or deprivation of liberty, or a combination of these. For certain very serious offenses, the convicted offender may be sentenced to death.

The sentencing options available to the judge are often defined by the legislature. In jurisdictions that use indeterminate sentencing, the judge has discretion to set the sentence at a maximum and minimum term within a broad range permitted by law. Parole authorities then determine the actual release date within those limits depending on the prisoner’s behavior and progress toward rehabilitation. In contrast, a determinate sentence imposes a fixed term of incarceration with no early release through parole. In jurisdictions that use presumptive sentencing, the judge sentences the offender to a term that falls within a narrow range prescribed by the legislature, and offenders are expected to serve this term. However, a judge may permit a departure from this presumptive sentence-either an increase or decrease in the length of the term-if specific justification is shown. Legislators often spell out in detail the factors that justify a judge’s departure from the presumptive sentence. Some states have enacted statutes that provide for long and often mandatory terms of imprisonment upon proof that the defendant has a prior record of criminal activity.” (1)

Sentencing in 1889

The following information about Prisons is from the Cyclopaedia of Political Science, Political Economy, and the Political History of the United States by the Best American and European Writers:

“There are but three possible varieties of sentences for crime, namely: fixed, discretionary, and indeterminate.

A primitive state of society can be imagined, in which in the absence of any penal code, all offenses are visited with a single extreme penalty, or, at least. in which the amount of torture inflicted is limited only by the caprice of the despot who inflicts it. The invention of a scale of punishments (échelle des peines), and the application of punishment according to this scale, under rules prescribed by a code, may be regarded as the first step in the onward march of humanity in quest of that ideal justice which forever eludes discovery. Under an absolute code, sentences are fixed; that is, the penalty for each offense is named in the code itself, and no latitude is left for the exercise of discretion by the courts.

But experience under an absolute code makes it apparent that the legislature can not adjust punishment to guilt; that in order to equality of punishment. punishment must be more flexible; that the heinousness of an offense depends not merely upon the character of the act, but upon the circumstances of its commission, and the character and motives of the actor, which can not be known, except as revealed by the evidence at the time of the trial. To this conviction is due the amendment of the code, by substituting for definite penalties the principle of maximum and minimum punishments: the amount of punishment in each actual case is, within certain prescribed limits, determined by the court, and to that extent the sentence is discretionary.

Under this system the legislature shifts from its own shoulders to those of the judiciary a large share of the responsibility for a just estimate of guilt. But the courts are as incapable of apportioning punishment as is the legislature: the inequality of punishment against which the system is a protest still exists: convicts feel it, prison officers see it, and judges confess it. One sole resource is left. namely, again to divide the burden of responsibility, by placing it in part upon the officials to whom the custody and oversight of prisoners are committed. The first suggestion of a possibility of such a solution was the creation. in the Australian colonies, of the ticket-of-leave. But the principle of conditional liberation. once recognized, gained adherents everywhere, and it has been incorporated in many penal codes.

The “mark” system and “good-time” laws are outgrowths of this principle of variability in the duration of imprisonment, dependent upon the conduct of the prisoner himself. The indeterminate sentence is its highest and latest form. It exists only in theory, not having been reduced to practice by any government, but is advocated by many able men who have had practical experience in the administration of the criminal law and in the care of criminals. Under this ideal system, neither the legislature nor the courts prescribe any definite term of imprisonment; maximum and minimum penalties are abolished; the court passes solely upon the criminality of the prisoner under indictment; his release from prison depends upon his amenability to discipline, and the estimate formed of his character by those who hold him in custody and under observation. and by whom discipline or “treatment” is to be administered to him.

To this definition of the indeterminate sentence it is essential to add the briefest possible account of the nature of the arguments for and against it. It has a close logical connection with that theory of crime, according to which criminal actions are the product of disease; crime is a neurosis, like insanity or idiocy, and should be so treated: in so far as it is analogous to insanity, the criminal has a right to cure, and in so far as it is analogous to idiocy, he has a right to education, training and development; prisons should be regarded and conducted as moral hospitals or training schools for moral imbeciles, rather than as places of punishment. It is also connected with that theory of moral responsibility which either denies its existence or denies that it can be judged by any but Almighty God; which would eliminate from criminal jurisprudence all thought of retribution or expiation; which would abandon the attempt to adjust penalty to illdesert; and which denies the right of society, if not of God himself, to inflict punishment upon any sentient creature. Of the three possible bases of a penal code, it only accepts two, namely, the protection of society and the reformation of the offender.

The status of the criminal is reduced to a dilemma: he can be reformed, or he can not; if he can be, he should be; if he can not be reformed, he should be held for life, if necessary, in order to protect society from injury at his hands. Hence, indeterminate sentences are sometimes called reformation sentences. In the terse language of Mr. Recorder Hill. of Birmingham. “To our limited faculties, crime and punishment have no common measure; our [present] course of proceeding is almost as vain in practice as it is absurd in theory; and in truth, there remain for us but two modes of usefully dealing with criminals—incapacitation and reformation.”

It is evident that the questions raised by the advocates of the indeterminate sentence cover pretty much the whole field of human thought, in science, in religion, in philosophy, in morals, in politics and in law. To argue them exhaustively a profound knowledge of first principles and an extensive acquaintance with the facts of science and of history are essential prerequisites.

But from the practical side, the point of view of the statesman and the legislator, the question is one of the concentration or distribution of power: what powers shall be conferred upon prison officers, what use they might make of them for good or for evil, what guarantees can be given that such enormous power over individuals will not be abused. On the other hand, it is a question what benefit, in the reformation of prisoners or the repression of crime, would follow the grant if made. It is an outward obedience only which is paid to power. The heart is moved by love; and it is not easy to see wherein there would be any more room for the exercise of love under the new than under the present system, while it is quite certain that an increase of power begets an increase of fear, and that under the influence of fear the moral character is more likely to deteriorate than to improve.

It may well be asked: If the adjustment of penalty to guilt is a task beyond the power of any legislature or any court. is it not also beyond the power of any prison board? Or if we discard the idea of penalty, and consider the criminal as a man diseased, what assurance can we have, that the persistence of the criminal, as of the insane, temperament, will not defy every effort for its eradication? If we concede that the majority are susceptible of cure, is it just to incarcerate for life those who can not be cured, and yet whose criminality may be of too feeble a type to involve any serious peril to society as the result of their liberation? and if not, then how, and by what tribunal, and upon what principle, is the date of their release to be determined?

There is no immediate prospect of the general acceptance of the indeterminate sentence; but the discussion opens up such a wide range of investigation and reflection as to make it interesting and profitable to all thoughtful students of penology. Its acceptance would put an end to the debates about cumulative sentences, restitution sentences, life sentences, a scale of penalties, the assimilation of penalties, and many other subsidiary questions of criminal jurisprudence. With the adoption of this form of sentence, society would return to its original position and conviction. that, in one way or in another, the expulsion of irreclaimable offenders is a necessity. No more complete confession of the failure of existing modes of dealing with crime can well be imagined.”

Resources

Notes and References

• Information about Sentencing in the Encarta Online Encyclopedia

Guide to Sentencing

In this Section

Pretrial Events (including Investigation and Arrest, Pretrial Events Booking, First Judicial Appearance, Bail, Preliminary Hearing, Arraignment on the Indictment and Preparation for Trial), Trial,

Jury, Trial Evidence, Trial Motions, Burden of Proof, Hung Jury, Motions After Trial, Sentencing (including Sentencing Probation and Parole), Appeals and Habeas Corpus.