Sentencing, Appeals, and the
Death Penalty
Chapter Nine
Incarceration Trends in America
• From 1980 to 2008, the number of people
incarcerated in America quadrupled-from roughly
500,000 to 2.3 million people
• Today, the US is 5% of the World population and
has 25% of world prisoners.
• Combining the number of people in prison and
jail with those under parole or probation
supervision - 1 in every 31 adults, or 3.2 percent
of the population is under some form of
correctional control
Contributing Factors
• Inner city crime prompted by social and economic isolation
• Crime/drug arrest rates: African Americans represent 12%
of monthly drug users, but comprise 32% of persons
arrested for drug possession
• "Get tough on crime" and "war on drugs" policies
• "Three Strikes"/habitual offender policies
• Zero Tolerance policies as a result of perceived problems of
school violence
• 35% of black children grades 7-12 have been suspended or
expelled at some point in their school careers compared to
20% of Hispanics and 15% of whites
Cost of Incarceration
• About $70 billion dollars are spent on
corrections yearly
• Prisons and jails consume a growing portion of
the nearly $200 billion we spend annually on
public safety
If a criminal defendant pleads guilty or is found guilty
by a judge or jury, then the judge must impose a
sentence.
Sentencing is arguably a judge’s most difficult
responsibility.
State and federal legislatures enact penal codes that
specify appropriate punishments for each statutory
offense or class of offense.
There are currently five types of punishment used in
the United States: fines, probation, intermediate
punishments, imprisonment, and death
Within limits, judges are able to tailor punishments
to fit the crime and the offender:
• Impose a combination of sentences
• Suspend the imprisonment portion of a
combination sentence or they can suspend the
entire sentence
• Can give the offender credit for jail time and
deduct that from any prison sentence
• May impose a sentence of time served
• Order prison sentences to run concurrently or
consecutively
Types of Sentencing
• Indeterminate Sentencing: sentence with a fixed
minimum and maximum term of incarceration
(sentence of 10-20 years with not less than 5 and
no more than 25)
• Determinate Sentencing: sentence with a fixed
period of incarceration
– Flat-time: judges can select between probation and
incarceration but have little discretion in setting the
length of prison sentence
– Mandatory: specified number of years of
imprisonment is provided for each crime
– Presumptive: legislature provides a sentence range
and judge must provide written reasons as to why
they have gone outside of the range and its subject to
appellate review
Philosophical Rational for Punishment
1. Retribution: implies revenge for an offense
committed
2. Incapacitation: removal or restriction of freedom for
those found to have violated criminal laws
3. General Deterrence: prevention of people in general
from engaging in crime by punishing specific
individuals and making examples of them
4. Rehabilitation: attempt to “correct” the personality
of the offender through educational, vocational, or
therapeutic treatment
5. Restoration: seeks to restore the health of the
community, repair the harm done, meet victim’s
needs, and requires the offender to contribute to
those repairs
6. Restitution: seeks repayment through money or
services.
When the first European settlers arrived in
America they brought with them the legal
systems from their native countries, with
included the penalty of death for a variety of
offenses.
The earliest recorded lawful execution in
America was in 1608 in the colony of Virginia.
Since then 19,000 legal executions have been
performed in the United States. [3% women]
From 1977 to 2007:
• 975 people have been executed (over half of
those in Texas, Virginia, and Oklahoma)
• Texas has executed more than three times as
many offenders as any other state
• Almost all have been male
• 58% white and 34% black
Between 1968 and 1972 a series of lawsuits
challenged various aspects of capital
punishment. During this period, an informal
moratorium on executions was observed.
• Furman Decision: held that capital
punishment was unconstitutional because
they gave the jury complete discretion to
decide whether to impose the death penalty
or a lesser punishment [did not rule that the
death penalty itself was unconstitutional only
they way in which it was being administered]
Practical effect of the Furman decision:
Supreme court voided the death penalty laws
in 35 states and more than 600 had their
death sentences vacated. By the fall of 1974,
30 states had enacted new death penalty
statutes designed to meet the court’s
objections.
The constitutionality of the new death penalty
statutes was quickly challenged in 5 cases. The
most dramatic effect of Gregg was the
resumption of executions in Jan 1977.
Five methods of execution:
Hanging, lethal injection, lethal gas, electrocution, and
firing squad
32 states + the US gov’t and US military have capital
punishment
Gregg limited death penalty to those offenders convicted of
capital or aggravated murder; treason, espionage, drug
trafficking in large quantities, and killing any public officer
(added in 1994 federal crime bill)
Supreme Court has barred states from executing inmates who
have developed mental illness while on death row, the
mentally retarded, and those who are under the age of 18
(Roper v. Simmons)
Procedural Reforms Approved in Gregg:
• Bifurcated trial: two-stage trial, if in the guilt phase
the defendant is found guilty then at the penalty
phase the jury must determine whether the
sentence will be death or life in prison
• Guideline for Judges and Juries: must be provided
with lists of aggravating and mitigating factors and
must consider any mitigating factors offered by the
defense
• Automatic Appellate Review: generally considered
by the state’s highest court; if either the conviction
or sentence is overturned then the case is sent back
to trial court – can be appealed through the state
and federal levels
Appeals
• Cases in NC are appealed from the NC District
or Superior Courts to the Court of Appeals; or
from the Court of Appeals to the NC Supreme
Court
• Cases in the US are appealed from the District
Courts to the Appellate Courts; or from the
Appellate Courts to the US Supreme Court
Appeals
• These courts have appellate jurisdiction – the
ability to hear a case on review.
• Courts with appellate jurisdiction use the writ
of certiorari when deciding which cases to
hear – meaning the lower court must deliver
its records to the higher court for review.
Rules for Appeals
Defendants can appeal their convictions either on legal
grounds or on constitutional grounds.
However, they are not entitled to present new
evidence or testimony on appeal if that evidence or
testimony could have been presented at trial.
If you accepted a plea bargain, you can’t appeal.
If new evidence is discovered that was unknown or
unknowable to the defense at trial, then an appeal
can sometimes be made on the basis of new
evidence.
Rules for Appeals Continued….
Burden of proof shifts to the defendant. They
have to show why they’re innocent.
Generally notice to appeal must be filed within
30 to 90 days.
Nearly 80% of state trial court decisions are
affirmed on appeal.
The appeals process is different from the trial
process in several ways:
1. Most arguments presented are made in
writing rather than in open court.
2. A panel of 3 judges hears the case, instead of
a judge and jury
3. Arguments relate to the defendant’s rights,
rather than the actual crime.