14.3: Sentencing Phase

Sentencing

In most jurisdictions, the judge holds the responsibility of imposing criminal sentences on convicted offenders. Often, this is a difficult process that defines the application of sometimes very complex sentencing principles depending on the offense and specific circumstances of the crime and offender. The latitude that a judge has in imposing sentences can vary widely from state to state. This is because state legislatures often set the minimum and maximum punishments for particular crimes in criminal statutes. The law also specifies alternatives to incarceration that a judge may use to tailor a sentence to an individual offender.

Presentence Investigation

Many jurisdictions require that a presentence investigation take place before a sentence is handed down. Most of the time, the presentence investigation is conducted by a probation officer and results in a presentence investigation report. This document describes the convict’s education, employment record, criminal history, present offense, prospects for rehabilitation, and any personal issues, such as addiction, that may impact the court’s decision. The report usually contains a recommendation as to the sentence that the court should impose. These reports are a major influence on the judge’s final decision.

Victim Impact Statements

Many states now consider the impact that a crime had on the victim when determining an appropriate sentence. A few states even allow the victims to appear in court and testify. Victim impact statements are usually read aloud in open court during the sentencing phase of a trial. Criminal defendants have challenged the constitutionality of this process on the grounds that it violates the Proportionality Doctrine requirement of the Eighth Amendment, but the Supreme Court has rejected this argument and found the admission of victim statements constitutional.

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The Sentencing Hearing

Many jurisdictions pass final sentences in a phase of the trial process known as a sentencing hearing. The prosecutor will recommend a sentence in the name of the people or defend the recommended sentence in the presentence investigation report, depending on the jurisdiction. Defendants retain the right to counsel during this phase of the process. Defendants also have the right to make a statement to the judge before the sentence is handed down.

Influences on Sentencing Decisions

The severity of a sentence usually hinges on two major factors. The first is the seriousness of the offense. The other, which is much more complex, is the presence of aggravating or mitigating circumstances. In general, the more serious the crime, the harsher the punishment.

Aggravating Circumstances

According to Cornell School of Law/Legal Information Institute, “aggravating circumstances refer to factors that increase the severity or culpability of a criminal act. Typically, the presence of an aggravating circumstance will lead to a harsher penalty for a convicted criminal. Some generally recognized aggravating circumstances include the heinousness of the crime, lack of remorse, and prior conviction of another crime. Recognition of particular aggravating circumstances varies by jurisdiction. A mitigating factor is the opposite of an aggravating circumstance, as a mitigating factor provides reasons as to why punishment for a criminal act's ought to be lessened.”

Using Aggravating Circumstances

In Cunningham v. California, 549 U.S. 270 (2007), the Supreme Court held that a jury may only use aggravating circumstances to impose a harsher sentence than usual when the jury had found those factors to be true beyond a reasonable doubt. The Cunningham court, however, also stated that prior convictions do not to be proven beyond a reasonable doubt.

California Rules of Court - Circumstances in Aggravation Rule 4.421.

Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.

1. Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
   1. The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
   2. The defendant was armed with or used a weapon at the time of the commission of the crime;
   3. The victim was particularly vulnerable;
   4. The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
   5. The defendant induced a minor to commit or assist in the commission of the crime;
   6. The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
   7. The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
   8. The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
   9. The crime involved an attempted or actual taking or damage of great monetary value;
   10. The crime involved a large quantity of contraband; an
   11. The defendant took advantage of a position of trust or confidence to commit the offense.
   12. The crime constitutes a hate crime under section 422.55 and:
   13. No hate crime enhancements under section 422.75 are imposed; and
   14. The crime is not subject to sentencing under section 1170.8.

(Subd (a) amended effective May 23, 2007; previously amended effective January 1, 1991, and January 1, 2007.)

2. Factors relating to the defendant include that:
   1. The defendant has engaged in violent conduct that indicates a serious danger to society;
   2. The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
   3. The defendant has served a prior term in prison or county jail under section 1170(h);
   4. The defendant was on probation, mandatory supervision, post release community supervision, or parole when the crime was committed; and
   5. The defendant's prior performance on probation, mandatory supervision, post-release community supervision, or parole was unsatisfactory.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 1991, January 1, 2007, and May 23, 2007.)

3. Other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed.

Mitigating Circumstances

According to Cornell School of Law/Legal Information Institute: “Mitigating Circumstances are any fact or circumstance that lessens the severity or culpability of a criminal act. Mitigating factors include an ability for the criminal to reform, mental retardation, an addiction to illegal substances or alcohol that contributed to the criminal behavior, and past good deeds, among many others. Recognition of particular mitigating factors varies by jurisdiction.”

California Rules of Court - Circumstances in Mitigation Rule 4.423.

Circumstances in mitigation include factors relating to the crime and factors relating to the defendant.

1. Factors relating to the crime include that:
   1. The defendant was a passive participant or played a minor role in the crime;
   2. The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
   3. The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;
   4. The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;
   5. The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;
   6. The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;
   7. The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;
   8. The defendant was motivated by a desire to provide necessities for his or her family or self; and
   9. The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense.

(Subdivision (a) amended effective May 23, 2007; previously amended effective January 1, 1991, July 1, 1993, and January 1, 2007.)

2. Factors relating to the defendant include that:
   1. The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
   2. The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;
   3. The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
   4. The defendant is ineligible for probation and but for that ineligibility would have been granted probation;
   5. The defendant made restitution to the victim; and
   6. The defendant's prior performance on probation, mandatory supervision, post release community supervision, or parole was satisfactory.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 1991, January 1, 2007, and May 23, 2007.)

3. Other factors statutorily declared to be circumstances in mitigation or that reasonably relate to the defendant or the circumstances under which the crime was committed.

Concurrent versus Consecutive Sentences

It is not uncommon for a person to be indicted on multiple offenses. This can be several different offenses or a repetition of the same offense. In many jurisdictions, the judge has the option to order the sentences to be served concurrently or consecutively. A concurrent sentence means that the sentences are served at the same time. A consecutive sentence means that the defendant serves the sentences one after another.

According to Cornell School of Law/Legal Information Institute: “Multiple prison terms are to be served one after another after the defendant is convicted of the corresponding criminal offenses. That is, when convicted of multiple offenses, judges may sentence the defendant to serve the sentences back-to-back. Consecutive sentences are distinct from concurrent sentences, whereby convicted defendants serve for a duration equal to the length of the longest sentence. Thus, concurrent sentences are typically considered more favorable for defendants. For example, if a defendant is convicted and sentenced for two six-year sentences and one three-year sentence, he/she would only serve six years under concurrent sentencing but would serve fifteen years under consecutive sentencing. For either type of sentence to apply, the defendant must be convicted of multiple sentences. According to the Supreme Court case Oregon v. Ice, judges often have the discretion to decide between the types of sentencing. Judges may select concurrent sentencing out of mercy, plea bargaining, or other reasons. Consecutive sentences can also be referred to as ‘cumulative sentences.’

Types of Sentences

A sentence is the punishment ordered by the court for a convicted defendant. Statutes usually prescribe punishments at both the state and federal levels. The most important limit on the severity of punishments in the United States is the Eighth Amendment.

The Death Penalty

The death penalty is a sentencing option in thirty-eight states and the federal government. It is usually reserved for those convicted of murders with aggravating circumstances. Because of the severity and irrevocability of the death penalty, its use has heavily circumscribed by statutes and controlled by case law. Included among these safeguards is an automatic review by appellate courts.

Incarceration

The most common punishment after fines in the United States is the deprivation of liberty known as incarceration. Jails are short-term facilities, most often run by counties under the auspices of the sheriff’s department. Jails house those awaiting trial and unable to make bail, and convicted offenders serving short sentences or waiting on a bed in a prison. Prisons are long-term facilities operated by state and federal governments. Most prison inmates are felons serving sentences of longer than one year.

Probation

Probation serves as a middle ground between no punishment and incarceration. Convicts receiving probation are supervised within the community and must abide by certain rules and restrictions. If they violate the conditions of their probation, they can have their probation revoked and can be sent to prison. Common conditions of probation include obeying all laws, paying fines and restitution as ordered by the court, reporting to a probation officer, not associating with criminals, not using drugs, submitting to searches, and submitting to drug tests.

The heavy use of probation is controversial. When the offense is nonviolent, the offender is not dangerous to the community, and the offender is willing to make restitution, then many agree that probation is a good idea. Due to prison overcrowding, judges have been forced to place more and more offenders on probation rather than sentencing them to prison.

Intensive Supervision Probation (ISP)

Intensive Supervision Probation (ISP) is similar to standard probation, but requires much more contact with probation officers and usually has more rigorous conditions of probation. The primary focus of adult ISP is to provide protection of the public safety through close supervision of the offender. Many juvenile programs, and an increasing number of adult programs, also have a treatment component that is designed to reduce recidivism.

Boot Camps

Convicts, often young men, sentenced to boot camps live in a military-style environment complete with barracks and rigorous physical training. These camps usually last from three to six months, depending on the particular program. The core ideas of boot camp programs are to teach wayward youths discipline and accountability. While a popular idea among some reformers, the research shows little to no impact on recidivism.

House Arrest and Electronic Monitoring

The Special Curfew Program was the federal courts’ first use of home confinement. It was part of an experimental program-a cooperative venture of the Bureau of Prisons, the U.S. Parole Commission, and the federal probation system-as an alternative to Bureau of Prisons Community Treatment Center (CTC) residence for eligible inmates. These inmates, instead of CTC placement, received parole dates advanced a maximum of 60 days and were subject to a curfew and minimum weekly contact with a probation officer. Electronic monitoring became part of the home confinement program several years later. In 1988, a pilot program was launched in two districts to evaluate the use of electronic equipment to monitor persons in the curfew program. The program was expanded nationally in 1991 and grew to include offenders on probation and supervised release and defendants on pretrial supervision as those who may be eligible to be placed on home confinement with electronic monitoring (Courts, 2015).

Today, most jurisdictions stipulate that offenders sentenced to house arrest must spend all or most of the day in their own homes. The popularity of house arrest has increased in recent years due to monitoring technology that allows a transmitter to be placed on the convict’s ankle, allowing compliance to be remotely monitored. House arrest is often coupled with other sanctions, such as fines and community service. Some jurisdictions have a work requirement, where the offender on house arrest is allowed to leave home for a specified window of time in order to work.

Fines

Fines are very common for violations and minor misdemeanor offenses. First-time offenders found guilty of simple assaults, minor drug possession, traffic violations and so forth are sentenced to fines alone. If these fines are not paid according to the rules set by the court, the offender is jailed. Many critics argue that fines discriminate against the poor. A $200 traffic fine means very little to a highly paid professional but can be a serious burden on a college student with only a part-time job. Some jurisdictions use a sliding scale that bases fines on income known as day fines. They are an outgrowth of traditional fining systems, which were seen as disproportionately punishing offenders with modest means while imposing no more than “slaps on the wrist” for affluent offenders.

This system has been very popular in European countries such as Sweden and Germany. Day fines take the financial circumstances of the offender into account. They are calculated using two major factors: The seriousness of the offense and the offender’s daily income. The European nations that use this system have established guidelines that assign points (“fine units”) to different offenses based on the seriousness of the offense. The range of fine units varies greatly by country. For example, in Sweden, the range is from 1 to 120 units. In Germany, the range is from 1 to 360 units.

The most common process is for court personnel to determine the daily income of the offender. It is common for family size and certain other expenses to be taken into account.

Restitution

When an offender is sentenced to a fine, the money goes to the state. Restitution requires the offender to pay money to the victim. The idea is to replace the economic losses suffered by the victim because of the crime. Judges may order offenders to compensate victims for medical bills, lost wages, and the value of the property that was stolen or destroyed. The major problem with restitution is actually collecting the money on behalf of the victim. Some jurisdictions allow practices such as wage garnishment to ensure the integrity of the process. Restitution can also be made a condition of probation, whereby the offender is imprisoned for a probation violation is the restitution is not paid.

Community Service

As a matter of legal theory, crimes harm the entire community, not just the immediate victim. Advocates see community service as the violator paying the community back for the harm caused. Community service can include a wide variety of tasks such as picking up trash along roadways, cleaning up graffiti, and cleaning up parks. Programs based on community service have been popular, but little is known about the impact of these programs on recidivism rates.

“Scarlet-letter” Punishments

While exact practices vary widely, the idea of scarlet-letter punishments is to shame the offender. Advocates view shaming as a cheap and satisfying alternative to incarceration. Critics argue that criminals are not likely to mend their behavior because of shame. There are legal challenges that of kept this sort of punishment from being widely accepted. Appeals have been made because such punishments violate the Eighth Amendment ban on cruel and unusual punishment. Others have been based on the idea that they violate the First Amendment by compelling defendants to convey a judicially scripted message in the form of forced apologies, warning signs, newspaper ads, and sandwich boards. Still other appeals have been based on the notion that shaming punishments are not specifically authorized by State sentencing guidelines and therefore constitute an abuse of judicial discretion (Litowitz, 1997).

Asset Forfeiture

Many jurisdictions have laws that allow the government to seize property and assets used in criminal enterprises. Such a seizure is known as forfeiture. Automobiles, airplanes, and boats used in illegal drug smuggling are all subject to seizure. The assets are often given over to law enforcement. According to the FBI, “Many criminals are motivated by greed and the acquisition of material goods. Therefore, the ability of the government to forfeit property connected with criminal activity can be an effective law enforcement tool by reducing the incentive for illegal conduct. Asset forfeiture takes the profit out of crime by helping to eliminate the ability of the offender to command resources necessary to continue illegal activities” (FBI, 2015).

Asset forfeiture can be both a criminal and a civil matter. Civil forfeitures are easier on law enforcement because they do not require a criminal conviction. As a civil matter, the standard of proof is much lower than it would be if the forfeiture was a criminal penalty. Commonly, the standard for such a seizure is probable cause. With criminal asset forfeitures, law enforcement cannot take control of the assets until the suspect has been convicted in criminal court.

Appeals

An appeal is a claim that some procedural or legal error was made in the prior handling of the case. An appeal results in one of two outcomes. If the appellate court agrees with the lower court, then the appellate court affirms the lower court’s decision. In such cases, the appeals court is said to uphold the decision of the lower court. If the appellate court agrees with the plaintiff that an error occurred, then the appellate court will overturn the conviction. This happens only when the error is determined to be substantial. Trivial or insignificant errors will result in the appellate court affirming the decision of the lower court. Winning an appeal is rarely a “get out of jail free” card for the defendant. Most often, the case is remanded to the lower court for rehearing. The decision to retry the case ultimately rests with the prosecutor. If the decision of the appellate court requires the exclusion of important evidence, the prosecutor may decide that a conviction is not possible.

Sentencing Statutes and Guidelines

In the United States, most jurisdictions hold that criminal sentencing is entirely a matter of statute. That is, legislative bodies determine the punishments that are associated with particular crimes. These legislative assemblies establish such sentencing schemes by passing sentencing statutes or establishing sentencing guidelines. These sentences can be of different types that have a profound effect on both the administration of criminal justice and the life of the convicted offender.

Indeterminate Sentences

Indeterminate sentencing is a type of criminal sentencing where the convict is not given a sentence of a certain period in prison. Rather, the amount of time served is based on the offender’s conduct while incarcerated. Most often, a broad range is specified during sentencing, and then a parole board will decide when the offender has earned release.

Determinate Sentences

A determinate sentence is of a fixed length and is generally not subject to review by a parole board. Convicts must serve all of the time sentenced, minus any good time earned while incarcerated.

Mandatory Sentences

Mandatory sentences are a type of sentence where the absolute minimum sentence is established by a legislative body. This effectively limits judicial discretion in such cases. Mandatory sentences are often included in habitual offender laws, such as repeat drug offenders. Under federal law, prosecutors have the powerful plea-bargaining tool of agreeing not to file under the prior felony statute.

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Sentencing Guidelines

The Sentencing Reform Act of 1984 was passed in response to congressional concern about fairness in federal sentencing practices. The Act completely changed the way courts sentenced federal offenders. The Act created a new federal agency, the U.S. Sentencing Commission, to set sentencing guidelines for every federal offense. When federal sentencing guidelines went into effect in 1987, they significantly altered judges’ sentencing discretion, probation officers’ preparation of the presentence investigation report, and officers’ overall role in the sentencing process. The new sentencing scheme also placed officers in a more adversarial environment in the courtroom, where attorneys might dispute facts, question guideline calculations, and object to the information in the presentence report. In addition to providing for a new sentencing process, the Act also replaced parole with “supervised release,” a term of community supervision to be served by prisoners after they completed prison terms (Courts, 2015).

When the Federal Courts began using sentencing guidelines, about half of the states adopted the practice. Sentencing guidelines indicate to the sentencing judge a narrow range of expected punishments for specific offenses. The purpose of these guidelines is to limit judicial discretion in sentencing. Several sentencing guidelines use a grid system, where the severity of the offense runs down one axis, and the criminal history of the offender runs across the other. The more serious the offense, the longer the sentence the offender receives. The longer the criminal history of the offender, the longer the sentence imposed. Some systems allow judges to go outside of the guidelines when aggravating or mitigating circumstances exist.