CHAPTER 3
Sentencing and Criminal Sanctions
Learning Objectives
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To help you understand how the criminal law affects corrections
To provide you with an overview of the people, agencies, and organizations involved in
sentencing
To acquaint you with the various criminal sentencing options
To help you distinguish between felony and misdemeanor sanctions
To introduce you to the controversies surrounding the death penalty
To show you the differences between indeterminate and determinate sentences
Chapter Outline
I.
II.
Introduction
A. Proportionality – advocated by most people that punishment should be as severe as the crime was
serious
B. Equity—most criminal justice workers and the general public believe that similar offenders and
similar offenses should be treated the same
C. Social Debt—many believe that a sentence should incorporate some recognition of the offender’s
criminal history
D. Adversarial system—used in the United States; a person is innocent until proven guilty and the
state must prove guilt rather than the defendant proving innocence
E. Inquisitorial system or accusatorial system—the defendant is deemed guilty unless they can prove
innocence
F. Presumption of innocence
G. Preponderance of the evidence—in US Civil cases, juries base their verdicts on whether there was
enough evidence necessary to decide in favor of one party or the other
H. Guilt beyond a reasonable doubt—in criminal cases, a verdict must be based on evidence
sufficient to prove the defendant’s guilt
I. Corpus delicti—the elements that must be proved to establish that a crime has been committed
J. Actus reus—the wrongful act
K. Inchoate offenses—attempted crimes; conspiracies to commit crimes and other efforts that fall
short of completed criminal acts
Sentencing: Who Decides?
A. The Role of Lawmakers
1. Substantive law—those behaviors that constitute crimes in the jurisdiction under their
control
2. Procedural law—governs the arrest, prosecution, and trial of criminal offenders
3. Misdemeanors—offenses that are punished by incarceration, usually in local confinement
and typically limited to a year or less
4. Felonies—sentences of one year or more including life in prison or the death penalty
5. Violations—the least serious crimes; infractions
6. Common law—the law that evolved from legal decisions based primarily on custom and
precedent
7. Principals—those who actually commit a crime
8. Accessories—individuals who contribute in some way to the crime’s commission
9. Mens rea—guilty mind
10. Criminal intent—specific or general
III.
a. Specific—the perpetrator intended the harm caused to the victim
b. General—the perpetrator understood that harm was possible
1. Affirmative defense—the defendant admits to the facts of the crime but denies criminal
intent, arguing that there were mitigating factors
a. Infancy defense—argument that the defendant was too young at the time the
crime was committed to distinguish between right and wrong
b. Insanity defense—the defendant’s mental capacity at the time the offense was
committed
c. M’Naughton Rule—applied in England (1843), addresses the defendant’s
understanding of the difference between right and wrong
d. Irresistible-impulse test—a mental defect that would prevent the defendant from
using that understanding to control their behavior
e. Alibi—affirmative defense; Latin word meaning elsewhere
f. Entrapment—allegedly the police induced the criminal behavior, that the
defendant would not have committed the crime in the absence of police
intervention
B. The Role of Juries
1. Jury—the trier of facts; responsible for telling the truth
2. Only in death penalty cases, the jury rather than the judge decides the sentence
C. The Role of Judges
1. Judge—the trier of the law
2. Rules on trial procedures and evidence
3. Decides what instructions will be given to the jury
4. Bench trials—judge serves as trier of facts and trier of the law
Sentencing: What Are the Choices?
A. Probation—a court-ordered period of correctional supervision in the community
1. Sentence—everyone on probation has been found guilty and is being punished
2. Judicial function—imposed and supervised by a judge
3. Probation department works with probationers
4. Imposed in lieu of incarceration
5. Conditional—the probationer’s continued freedom is dependent on meeting the terms of
probation
B. Fines and Forfeitures
1. Racketeer Influenced and Corrupt Organizations (RICO) Statute—a component of the
Organized Crime Control Act of 1970
2. Day fine—type of monetary sanction
3. Means-based penalties—monetary sanctions that account for each offender’s ability to
pay
C. Misdemeanor Sentences
1. Typically punishable by fines
2. Can result in probation
3. Could carry a jail sentence
D. Felony sentences
1. Intermediate sanctions—punishments that are more severe than standard probation but
less severe than imprisonment
2. Property offenders—repeat convicted felons are usually sentenced to prison
3. Personal offense—aggravated assault, rape, robbery
E. The Death Penalty
1. Does not correct; but is a punishment
2. Been in existence since the founding of the United States
3. Evokes strong reactions in opponents
4.
5.
6.
7.
IV.
V.
VI.
VII.
VIII.
Question of justice
Morality issues
Legal and constitutional in nature
Gregg v. Georgia—1976
a. Narrowed range of death penalty crimes
b. Bifurcated hearings—a trial and another hearing to determine sentencing
Sentencing: How Are Decisions Made?
A. Judicial Decision Making
1. Concurrent sentences—two or more sentences imposed and then served at the same time
2. Consecutive sentences—two or more sentences imposed at the same time but served in
sequence
B. Prosecutorial Decision Making: Plea Bargaining
1. Plea Bargaining—the negotiation that goes on between the defense attorney and the
prosecutor regarding sentences, counts, and charges
2. Horizontal overcharging—the practice of charging a defendant with every possible
criminal charge related to an offense and then using the lesser charges as bargaining chips
3. Vertical overcharging—charging a suspect with more serious charges than can be proved
in court
Sentencing Strategies
A. Determinate sentences
1. Indeterminate sentences—ranges of time rather than specific periods to define prison
terms
2. Determinate sentences—specific periods of confinement
3. Good-time credits—time deducted from a prison sentence for good behavior
B. Sentencing Guidelines
1. Prescribe the sentences judges must impose for certain crimes (based on the seriousness
of the particular crime) and for certain offenders (based on the individual’s criminal
history)
2. Presumptive sentences—sentences calculated using a method defined in the statutes
C. Mandatory Sentences
1. Penalties required by law for those convicted of certain offenses
2. Mandatory minimums—form of mandatory sentencing where the least-severe penalties
that can be imposed on offenders convicted of committing certain crimes
3. Three-strikes-and-you’re-out legislation—these laws require very long prison sentences;
as long as life
After the Verdict
A. After the defendant is found guilty, judge often delays sentencing until a Presentence
Investigation can be completed.
B. For those placed on probation, the judge must develop a probation plan
C. If the defendant is sent to prison they are first sent to a diagnostic and intake center.
D. After screening, new inmates are transported to a designated institution
Appeals
A. Jailhouse lawyers—inmates who have developed an expertise at challenging their own
convictions and those of other inmates
B. Writ of habeas corpus—prisoners assert that they are being held unjustly and ask the court to
require the state to justify the prisoner’s conviction and incarceration
C. The basis for an appeal is an error in law
D. The percentage of cases appealed is low
E. Of those appealed, only a small percentage result in relief
F. Most successful appeals result in rehearing on specific issues or retrials of the case
Contemporary Trends in Sentencing and Some Thoughts on the Future
A. Punishment of criminal offenders has gone in two directions
1. A movement to make sentences less severe for adults and juveniles who commit minor
offenses
2. Sanctions have become more severe for adults and juveniles who commit more serious
crimes
B. For the future
1. The leniency shown first-time offenders is to continue
2. Penalties for habitual offenders is to continue to be harsh
3. Possible genetic engineering to eliminate criminal tendencies
4. Vaporization or atomization or the use of cryogenics to deep-freeze offenders
Key Terms
Accessories—individuals who contribute in some way to the crime’s commission
accusatorial system—the defendant is presumed guilty unless he or she can prove innocence
actus reus—in Latin, the wrongful act
adversarial system—the Anglo-American system of justice; an individual is innocent until proven guilty
and the state must prove guilt and the defendant need not prove innocence
affirmative defense—the defendant admits to the facts of the crime but denies criminal intent, arguing that
there were mitigating factors
alibi—affirmative defense which in Latin means “elsewhere”
bifurcated hearings—used in death penalty cases. A jury decision trial followed by a sentencing hearing
and an appeals process in verdicts of guilty
common law—the law that evolved from legal decisions based directly on custom and precedent, a
distinction was made between principals and accessories
concurrent sentences—two or more sentences imposed and then served at the same time
consecutive sentences—two or more sentences imposed at the same time but served in sequence
corpus delicti—literally means “the body of the crime”; the elements that must be proved to establish that
a crime has been committed
criminal intent—specific intent or general intent; the intention to carry out a criminal act
day fine—a monetary sanction or structured fine
determinate sentences—specific periods of confinement
entrapment—an affirmative defense that alleges that the police induced the criminal behavior; that the
defendant would not have committed the crime in the absence of police intervention
equity—that similar offenders and similar offenses should be treated the same
felonies—sentences of one year or more, including life in prison or the death penalty
good-time credits—time deducted from a prison sentence for good behavior
guilt beyond a reasonable doubt—in a criminal case, a verdict must be based on evidence sufficient to
prove the defendant’s guilt
horizontal overcharging—the practice of charging a defendant with every possible criminal charge related
to an offense and then using the lesser charges as bargaining chips
inchoate offenses—attempted crimes, conspiracies to commit crimes, and other efforts that fall short of
completed acts
indeterminate sentences—ranges of time rather than specific periods to define prison terms
infancy defense—the argument that the defendant was too young at the time the crime was committed to
distinguish between right and wrong
inquisitorial system—an accusatorial system
insanity defense—the issue is the defendant’s mental capacity at the time the offense was committed
intermediate sanctions—punishments that are more severe than standard probation but less severe than
imprisonment
irresistible-impulse test—refers to a mental defect that would prevent the defendant from using that
understanding to control his or her behavior
mandatory minimums—the least-severe penalties that can be imposed on offenders convicted of
committing certain crimes
mandatory sentences—penalties required by law for those convicted of certain offenses
means-based penalties—a day fine; monetary sanction that accounts for each offender’s ability to pay
mens rea—from the Latin; guilty mind
misdemeanors—offenses punishable by incarceration, typically limited to a year or less
M'Naughton rule—first applied in England in 1843; addresses the defendant’s understanding of the
difference between right and wrong
personal offense—aggravated assault, rape or robbery
petty misdemeanors—violations or infractions; the least-serious crimes
plea bargaining—the negotiation that goes on between the defense attorney and the prosecutor regarding
sentences, counts and charges
preponderance of the evidence – a verdict in a civil case is based on the amount of evidence necessary to
decide the case in favor of one party or the other
presumption of innocence—a defendant is presumed innocent in a court of law and the state must prove
guilt
presumptive sentences—sentences calculated using a method defined in the statutes
principals—those who actually commit a crime
probation—an alternative to incarceration; a court-ordered period of correctional supervision in the
community
procedural law—law that governs arrest, prosecution, and trial of criminal offenders
property offenders—offenders who repeat these offenses are more likely to be sentenced if they are
already convicted felons
proportionality—that punishment should be as severe as the crime was serious
Racketeer Influenced and Corrupt Organizations (RICO) Statute—a Federal Statute that has the most
conspicuous use of fines in major criminal cases; a component of the Organized Crime Control Act of
1970
sentencing guidelines—prescribe the sentences judges must impose for certain crimes
social debt—that a sentence should incorporate some recognition of the offender’s criminal history
substantive law—Law made by Congress and the 50 state legislatures that define those behaviors that
constitute crimes in the jurisdiction under their control
vertical overcharging—charging a suspect with more serious charges than can be proved in court
writ of habeas corpus—prisoners assert that they are being held unjustly and ask the court to require the
state to justify the prisoner’s conviction and incarceration
Chapter Summary
In this chapter, we have examined a broad range of issues dealing with crime law and particularly
focusing on the sentencing process. Some of the major points covered in this chapter are the
following:
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Legislative bodies define criminal behavior. They determine both the substantive
law and procedural law. They distinguish felonies from misdemeanors and
prescribe the appropriate punishments.
Judges serve as the “triers of law” and juries serve as the “triers of fact” in cases
that go to trial.
Sentencing choices range from probation to fines, jail and prison sentences, and
the death penalty.
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Prison sentences may be indeterminate or determinate and judges may impose
them concurrently or consecutively.
Offenders can appeal their convictions on writs of habeas corpus or through civil
rights actions. The method of appeal chosen has implications for the most
important form of relief.
Discussion Topics
1. Compare and contrast the criminal court system with the civil court system. Can an
individual be brought into both courts for the same behavior? Can you think of a
contemporary example?
2. Discuss the sentencing process. Who determines the sentence for a criminal offender?
What are the roles of the jury and the roles of the judge in sentencing an offender?
3. What are the benefits of the death penalty? What are the disadvantages of the death
penalty? How is it being applied in the United States and is it effective?
Web Activities
1. Explore the United States Supreme Court website: http://www.supremecourt.gov/
In the Search box (on the upper right side), type in prisons. Find a Supreme Court decision regarding
prisons. Review the decision and write an essay about how this decision will affect the treatment of
inmates in US prisons.
2. Locate a video on YouTube regarding the Sentencing Phase of a Death Penalty Criminal Defendant,
for example, Jodi Arias Trial; Penalty Phase – Family Impact Statements
http://www.youtube.com/watch?v=wfP7xuPd-L8
Use this video to generate a class discussion, an online discussion board, or a paper.
4. Locate North Carolina Sentencing Structure Training Manual
Scroll through and observe some of the methods required by Judges in the sentencing phase of a trial.
Write a comparison/contrast reaction paper to this type of sentencing.