Chapter Sixteen
Sentencing
You have so many options when you sentence. You can put a defendant on probation,
order him to be put on work-release and go to a half-way house, or send him to an
institution. But what it comes right down to is that there is no alternative that’s any
good. I guess you could call it a judge’s dilemma.
— Charles Halleck, Judge, Superior Court of the District of Columbia, 1976
KEY WORDS
Key terms to understand for this chapter…
•
•
•
•
•
•
•
•
Cruel and Unusual Punishment
Definite Sentence
Deterrence
Indefinite Sentence
Indeterminate Sentence
Probation
Rehabilitated
Suspended Sentence
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
OBJECTIVES
After completing this chapter, you should be able to…
• Explain the prohibitions against cruel and unusual
punishment.
• Define the various types of punishment.
• Discuss the death penalty issues.
• Explain differences between types of sentences.
• Discuss the nature of probation.
• Define the concept of rehabilitation.
• Explain the use of suspended sentences.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
• To understand more fully the history of punishment
and its severity, we begin by discussing early societies.
• The social world of early mankind comprised separate
isolated groups, or clans, an aggregate of families.
– the eldest male was the ruler in these ancient societies
• If harm was done to a member of the clan by another
member, it was the ruler’s task to right the wrong.
– other clan members were pressed into service for assistance
• If committed by a neighboring clan it was a religious
duty of each wronged clan member to avenge the wrong.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Blood Feud
• Belief was that an injury to any clan member was an
injury to the entire clan, usually ending with a war.
• If the offender could not be located, revenge could be
inflicted on any other member of the neighboring clan.
• As time passed, avenging the wrong became more of a
family responsibility, and the offended family member
had first, foremost responsibility to avenge the wrong.
• Again, if the offender could not be located, then the
revenge would be inflicted on other family members.
– known as the blood feud, often brutal and usually ending in
the death of the offender
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Atonement
• When time passed without a crime’s being avenged,
family members often became disenchanted with the
blood feud, particularly when not personally offended.
• Consequently, members of the offended family became
willing to accept money or property in return for not
inflicting physical retaliation.
• Known as atonement, by the twelfth century, it had
grown in popularity & the blood feud all but abolished.
• Atonement became a source of revenue for kings or the
church, depending on the crime.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Trial
• Not all crimes could be atoned for, so the offender was
required to stand trial, and if found guilty, the offender
was subjected to punishment prescribed for that crime.
– in many instances, the punishment was death
• If death was not imposed, the offender was often
subjected to other forms of severe physical punishment.
• To escape punishment, an offender often entered a
church for sanctuary from pursuers attempting to inflict
punishment.
– the offender was safe as long as he/she remained inside the
church
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Protection Within a Church
• Sometimes the pursuers surrounded the church and
remained there for days to prevent escape, and often
the pursuers tried to have the priests or clergy starve
the offender into submission.
• Usually, priests would have nothing to do with matters
that interfered with the holiness of the sanctuary.
– the beginning of what became known as the benefit of clergy
• Punishment imposed for conviction of a crime was a
mandatory sentence carried out regardless of severity.
– imprisonment was not used at that time
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Imprisonment
• The imprisonment of convicted offenders was, and still
is, a troublesome and expensive form of punishment.
• Imprisonment as a form of punishment was used at
common law in England for a few minor offenses
• Ecclesiastical courts also imposed imprisonment on
convicted clergymen in some instances.
• Death, mutilation, and banishment were still the most
frequently imposed forms of punishment.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Banishment
• When a convicted person was banished from England,
the offender, family & friends, were required to leave.
– his property was also confiscated by the king or the churc,
and banishment became another source of revenue for both
• As late as the early 1800s, England had more than 200
violations carrying a possible death penalty.
• Shortly thereafter, imprisonment and banishment to
Australia were substituted for the death penalty as a
form of punishment.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Early America
• As the colonies were settled, the colonists brought
much of the criminal procedure they knew in England.
– retribution or vengeance was still the punishment philosophy
• The death penalty was frequently inflicted, in a manner
far more inhumane than it had been in England.
• Mutilation and corporal punishment—particularly
whipping—pillory, stocks & public cage were used.
• It is little wonder the framers of the US Constitution
included the Eighth Amendment guarantee against
“cruel and unusual punishment.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Early America
• After time, the colonists began substituting prison for
for the death penalty, allegedly as
a more humane punishment.
• As retribution was still the primary
force behind punishment, little
consideration was given to the
imprisoned offender.
– prisoners often died of neglect
Punishment by a shower bath at the Auburn, New York, prison.
(Source: CORBIS-NY.)
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Early America - Pennsylvania
• William Penn is given credit for the first improvement
in prison conditions & reforms in punishment imposed.
• In 1681, Penn received the charter to a large tract of
land, known as Pennsylvania, moved to a new city he
named Philadelphia and established a government
along the lines of republicanism and religious freedom.
– the death penalty was abolished for all offenses but murder
– about 1683, a jail was erected to confine offenders
• Penn had further reforms in mind, but died in 1718
before they could be completed.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Early America - Penalty Reform
• Penalty reforms for convicted offenders began after the
colonies achieved independence from England.
– improvements were made in confinement conditions
– A 1786 act provided for imprisonment at hard labor for
many crimes that previously carried the death penalty
• Although an improvement, more reform was needed.
– places of confinement soon became overcrowded, with little
supervision.
– there was no segregation according to sex, age, or offense
– liquor was freely sold to inmates, and prostitution practiced
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Present Sentencing Procedure
• Each rule of conduct written over history has required
a punishment established for convicted violators.
– usually, the more serious the crime, the more severe the
punishment
– which punishments should be inflicted for each particular
crime has plagued society for centuries
• As time passed, imprisonment became the accepted
way of punishing an offender, and society turned from
retaliation to the isolation philosophy of punishment.
– instead of trying to get even with the offender, society
attempted to protect itself by imprisonment
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Present Sentencing Procedure
• When penitentiaries were first built in the US, they
were built with the idea of confining the offenders in
maximum security to isolate them from society
• Offenders, called inmates, spent much time locked in
their cells, and required to wear a distinctive uniform.
– for a long time, the uniform was made of black & white
striped material
• Many of the penitentiaries built in the late 1800s and
early 1900s are still in use.
• In most instances, there were no guidelines to assist in
determining how long an offender should be confined.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Isolation
• Early in our history, sentencing of an offender to was
solely the responsibility of the trial judge, and much
depended on the judge’s attitude & philosophy.
• When legislators began to establish penalties for each
crime, they concentrated on the felony.
• There is considerable difference among states on the
sentences that may be imposed.
– in some states, minimum and maximum number of years an
offender must serve are defined for conviction of a crime
– in other states, the law sets forth the maximum length of
imprisonment that may be imposed
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Other Penalties
• While imprisonment became one form of punishment,
it is not the only penalty that may be imposed on a
convicted offender.
• The types of sentences possible for criminal offenders
are set forth in the codes of
the various states.
Sherelle Purnell, eighteen, of Salisbury, Maryland, wearing
a sign reading “I Was Caught Stealing Gas” in front of the
Tiger Mart gas station she stole from in Salisbury,
Maryland.
Though Wicomico County District Court Judge D. William
Simpson authorized the punishment, the unconventional
sentence was the brainchild of Tiger Mart store manager
Jan Phipps.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Other Penalties
• Penalty is still referred to as punishment in most codes,
and may be one or a combination of the following:
imprisonment; fine; probation; suspended sentence;
and in some states, the death penalty.
– removal from, and disqualification to hold public office
are also forms of punishment in some states
• In a few jurisdictions, the terms punishment and
sentence imply imprisonment.
– thus, probation is not considered to be a sentence but rather a
disposition of the case
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Other Penalties
• In most jurisdictions, the term sentence is the judgment
of the court after conviction.
• Sentence is the final disposition of the trial, whether by
imprisonment, suspended sentence, probation, or fine.
– punishment is sometimes more closely associated with
imprisonment than are other forms of sentence
– technically, punishment means any unpleasantness the
convicted offender may suffer
• Restrictions on the offender: imprisonment, suspended
sentence, or probation, are forms of unpleasantness.
– as is financial hardship imposed by fines
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
History of Punishment
Deterrence
• As reformists continued to study punishment, its
purpose shifted from isolation theory to deterrence.
– the movement to rehabilitate the offender followed
• The isolation approach has not been abandoned, as
there are inmates from whom society is safe only
during their confinement.
– neither deterrence nor rehabilitation is applicable to some
hardened criminals
• Whatever sentence is imposed, its primary purpose is
for the protection of society.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Misdemeanor
• On a misdemeanor conviction, statutes of most states
provide the penalty imposed shall not exceed one year
of imprisonment and/or a $1,000 fine.
– most jurisdictions permit the judge to suspend the sentence
and place the offender on probation, grant probation with
provision that a certain amount of time must be spent in
imprisonment; or merely to impose a fine
• The judge may impose a sentence for one year on
multiple charge and have them run consecutively.
– a consecutive sentence must be served before the next begins
– concurrent sentences run at the same time
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Felony
• In a majority of the states, it is still the prerogative of
the trial judge to impose the sentence.
• In some states, the jury will impose the sentence
• In a few states, a jury must be impaneled to impose the
sentence even though a jury trial has been waived.
• Generally, depending on jurisdiction, types of sentence
or imprisonment that may be imposed are
– definite sentence
– indefinite sentence
– indeterminate sentence
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Definite Sentence
• As imprisonment began to be substituted for other
punishment, there were few guidelines to assist judges.
• As retribution, or social retaliation, was the primary
purpose, lengthy sentences were often imposed.
– some judges became arbitrary & discriminatory in sentencing
• To overcome this, legislation was passed in most states
setting forth a prescribed, or a definite mandatory
sentence, required on conviction of a particular offense.
• Judges no longer had any control over the length of
time to be served.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Definite Sentence
• On conviction, the mandatory sentence was imposed,
and the offender required to serve that period of time.
– after the prescribed period, the offender was released back
into society, but never prior to that time
• The first major change came with the introduction of
the conditional release, where a few states passed
legislation permitting time off from the definite
sentence for good behavior.
• Good behavior principally consisted of complying with
prison rules.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Definite Sentence
• The definite sentence was severely criticized by
reformists as being inflexible, and did not permit any
aggravating or mitigating factors.
• Since the procedure was inflexible, judges often
dismissed a charge rather than impose a severe definite
sentence when there were mitigating circumstances.
– an offender was then permitted to go unpunished
• Because of the inflexibility of the definite sentence, it
has all but disappeared from the justice system.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Indefinite Sentence
• As the definite sentence lost favor, it was replaced by
the indefinite sentence, in some states referred to as the
indeterminate sentence or as the determinate sentence.
• With appearance of the indefinite sentence, legislative
bodies passed statutes prescribing maximum penalties
that could be imposed on the convicted offender.
• Under the indefinite sentencing procedure, imposition
of the sentence was returned to the judge in most states.
– a few states provided for the jury to impose the sentence
• The theory was that it enabled the sentence to fit the
offender and not the crime.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Presentence Investigations
• To assist in arriving at an equitable sentence many
judges require a presentence investigation, usually
conducted by a member of the probation department.
– generally includes such matters as the offender’s family
status, educational background, work experience, and prior
criminal record and circumstances surrounding the crime
• Even with the assistance of presentence report, the
sentence still involves a difficult decision for the judge.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Juries Imposing Sentence
• Jury sentencing is a carryover from colonial days,
when colonists had frequent unpleasant experiences
with royal, as well as postindependence judges.
– who were arbitrary & discriminatory in their sentences
• Juries generally do not have access to any presentence
investigative material, and when imposing sentence, it
is often just a calculated guess on what is appropriate.
• Often juries will be extremely harsh or very lenient in
sentencing, because of deep emotional involvement
with a crime committed in their community.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Juries Imposing Sentence
• Getting a jury to arrive at an equitable sentence can be
more difficult than reaching a unanimous verdict.
• Whether a sentence is imposed by a judge or a jury, it
will stipulate the exact number of years to be served.
• With the indefinite sentence, the law prescribes either a
maximum amount of time that may be imposed or a
minimum and a maximum
• From this indefinite period of time, the judge or jury
will decide upon a definite amount of time for the
sentence.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Indeterminate Sentencing
• Passing of time & growing interest in rehabilitation,
has made the indefinite sentence has even more so,
becoming known as the indeterminate sentence.
– because, after serving a portion of the sentence, the inmate
may become eligible for parole, shortening time to be served
• The true indeterminate sentence removes sentencing of
a prescribed number of years from a judge or a jury.
– length of the sentence is determined by a board or committee
• The primary purpose of the indeterminate sentence is to
permit the sentence to more nearly fit the offender and
to assist in the rehabilitation process.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
When is an Offender Rehabilitated
• Determining when an offender is rehabilitated and no
longer a threat to society is almost impossible.
– some never reach that point and serve the maximum time
• However, each inmate is entitled eventually to have the
length of his or her sentence determined by the board.
– generally, the hearing will not be held until the inmate has
served six months to one year of the maximum time
• The board will consider the general attitude of the
inmate toward society, law, and authority as expressed
by the inmate in the appearance before the board.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
When is an Offender Rehabilitated
• After a review of the matter, the board will endeavor to
arrive at an equitable length of time to be served.
• If the inmate demonstrates an inability to conform to
prison regulations or makes no attempt at reform, the
board has authority to reset the length of the sentence.
– even requiring the inmate to serve the maximum time
• It has been interpreted that an offender sentenced under
the indeterminate sentence procedure is sentenced to
the maximum prescribed.
– and any time less than maximum is based on rehabilitation
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Advantages/Disadvantages
• The indeterminate sentence has been attacked by
inmates on the allegation that it violates due process.
– because of its uncertainty, and, as such, is cruel and unusual
punishment
• Courts have held that as long as a minimum and a
maximum sentence prescribed by the legislature are not
disproportionate to the offense committed, the sentence
is not cruel and unusual.
– and inmate reformation permits the maximum to be reduced
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Advantages/Disadvantages
• Proponents of true indeterminate sentencing procedure
allege a board is in a better position than a judge to
determine the sentence that should be imposed.
– the board comes in contact with all convicted offenders who
are imprisoned
– whereas judges are in contact with only those convicted in
their particular court
• The board is able to view the inmates’ progress in an
overview as one large unit and follow this progress
during confinement as well as parole.
– the board can weigh what sentence is likely equitable
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Suspended Sentence and Probation
• Benefit of clergy was carried a step further in England
during the thirteenth and fourteenth centuries, and may
be called the forerunner of the suspended sentence.
• Under certain circumstances, an accused was permitted
to have a trial transferred from the king’s court to the
ecclesiastical court.
– the offender was able to avoid the death penalty, but still
might be imprisoned for life
• Philosophy of the right of benefit of clergy was brought
to America by the colonists.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Suspended Sentence and Probation
• The suspended sentence is recognized in our system of
justice today, in most instances coupled with probation.
– in many jurisdictions, there cannot be a suspended sentence
without probation being imposed for a prescribed period
– in jurisdictions where suspended sentence is permitted
without probation, the judge suspends imposing a sentence
• The offender is returned to society, with no restrictions
other than good behavior.
– if the offender breaks the law again, the judge may impose a
sentence on the original charge as well as the new charge if
the offender is convicted
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Types of Sentencing and Sentences
Suspended Sentence and Probation
• Probation permits the convicted offender to remain free
from custody, but the offender is under supervision of a
person who assists him/her in leading a law-abiding life.
– usually a public officer known as a probation officer
• The primary purpose of the suspended sentence and
probation is to rehabilitate the offender.
• When the convicted offender is granted a suspended
sentence or probation, it is assumed that there is no
threat to society by the offender’s remaining free from
custody.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
The Death Penalty
“The toughest part of this job is sentencing. I’ve lost all
kinds of sleep over sentences. I find it dreadful.”
—Malcolm Muir, Judge, US District Court, 1982
This photo shows the “death chamber” at
the Texas Department of Criminal Justice
Huntsville Unit in Huntsville, Texas.
The executioners room is behind the
glass window, and the injection is
administered via tubes that pass
through the opening in the wall.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
The Death Penalty
• Heated arguments have taken place over the years
concerning the merits of the death penalty.
– those who oppose it do
so on grounds it has no
place in a civilized
society
– equal numbers contend
the death penalty is a
deterrent and as such
should be retained
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
Source: Death Penalty Information Center
reprinted in the Washington Post, March 8, 1995, p. A15.
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Cruel & Unusual Punishment - Furman
• The question of whether or not the death penalty is
cruel and unusual punishment in violation of the Eighth
Amendment was placed before the US Supreme Court
in the case of Furman v. Georgia.
• The Court held the death penalty as such was not cruel
and unusual punishment but that the indiscriminate
manner in which it was applied made the death penalty
cruel and unusual punishment in violation of the Eighth
Amendment.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
The Death Penalty
Cruel & Unusual Punishment - Furman
• The Court in Furman indicated that perhaps, if the
death sentence was to be made mandatory for all of
equal guilt, the sentence would not be discriminatory.
– and thus not violate the Eighth Amendment
• As a result, many legislatures passed statutes making
death mandatory on conviction for certain crimes.
• This mandatory sentence took from the jury or judge
the right to determine the sentence to be imposed on
conviction for crimes previously carrying the alternate
sentence of life imprisonment or death.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
The Death Penalty
Cruel & Unusual Punishment - Woodson
• However, the Court, in Woodson v. North Carolina,3
overruled as cruel and unusual punishment a North
Carolina statute making the death penalty mandatory.
– the Court held the statute did not allow any consideration
to be given to the character and record of the offender
• The Court stated,
– “Consideration of both the offender and the offense in order
to arrive at a just and appropriate sentence has been viewed
as a progressive and humanizing development.”
• Consequently, state statutes making the death penalty
mandatory had to be revised to conform with Woodson.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
The Death Penalty
Cruel & Unusual Punishment - Gregg
• Statutes were then passed allowing consideration
aggravating or mitigating circumstances.
• A Georgia statute was upheld by the Supreme Court in
Gregg v. Georgia, where the Court stated:
– “…imposition of the death penalty for the Crime of murder
has a long history of acceptance.”
– “ …common-law rule imposed a mandatory death sentence
on all convicted murderers.”
– “…For nearly two centuries, this Court, repeatedly and often
expressly, has recognized that capital punishment is not
invalid per se.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
The Death Penalty
Cruel & Unusual Punishment - Furman
• Dissenting justices in the Furman case stated:
– “Punishments are cruel when they involve torture or a
lingering death; but the punishment of death is not cruel,
within the meaning of that word as used in the Constitution.”
– “It implies there something inhuman and barbarous,
something more than the mere extinguishment of life.”
– “The cruelty against which the Constitution protects a
convicted man is cruelty in the method of punishment, not
the necessary suffering involved in any method employed to
extinguish life humanely.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Cruel & Unusual Punishment - Gregg
• In Gregg decision, the Court made some interesting
comments on the death penalty as a deterrent:
– “When people begin to believe that organized society is
unwilling or unable to impose upon criminal offenders the
punishment they deserve, then there are sown the seeds of
anarchy—of self-help, vigilante justice, and lynch law.”
– “Retribution is no longer the dominant objective of the
criminal law, but neither is it a forbidden objective nor
one inconsistent with our respect for the dignity of men.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Cruel & Unusual Punishment - Gregg
• In Gregg decision, the Court made some interesting
comments on the death penalty as a deterrent:
– Indeed, the decision that capital punishment may be the
appropriate sanction in extreme cases is an expression of the
community’s belief that certain crimes are themselves so
grievous an affront to humanity that the only adequate
response may be the penalty of death.
– Although some of the studies suggest that the death penalty
may not function as a significantly greater deterrent than
lesser penalties, there is no convincing empirical evidence
either supporting or refuting this view.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Cruel & Unusual Punishment - Gregg
• In Gregg decision, the Court made some interesting
comments on the death penalty as a deterrent:
– We may nevertheless assume safely that there are murderers,
such as those who act in passion, for whom the threat of
death has little or no deterrent effect. But for many others the
death penalty undoubtedly is a significant deterrent.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Alternate Sentencing
• The mandatory death penalty on conviction of certain
crimes made jurors aware that voting for a guilty
verdict, was voting for execution of a human being.
• Many jurors had reservations about the death penalty,
and when it came time to vote, could not bring
themselves to vote guilty, irrespective of the evidence.
– this inability caused many trials to end with hung juries
• To overcome this problem, many state legislatures
enacted statutes setting forth alternate sentences of life
imprisonment or death on conviction of certain crimes.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Alternate Sentencing - Circumstances
• The statutes further provided the jury was to make the
decision about which penalty was to be imposed.
– a juror could still vote for a guilty verdict, but vote for life
imprisonment after the conviction
• In 2002, the Supreme Court held that determination
about the existence of “aggravating factors” that make
a convicted murder eligible for the death penalty must
be made by the jury and not the judge.
• During the trial or sentence determination hearing, the
jury must consider both aggravating and mitigating
circumstances, and weigh them against each other.
Procedures in the Justice System, Ninth Edition
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© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Alternate Sentencing - Procedures
• When the alternate sentence was made possible, one of
two procedures was generally followed.
– in some states, a trial was first held to determine guilt or
innocence of the accused
– if an accused was found guilty, a second trial was held to
determine the sentence
– in other states, only one trial was held, and the jury would
deliberate first on guilt or innocence, and, if the jury voted
a guilty verdict, they would then deliberate on the penalty
• Both have received the sanction of the Supreme Court.
• The death penalty may be imposed in approximately
two-thirds of the states and within the federal system.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Alternate Sentencing - Appeals
• In most jurisdictions, a death penalty is automatically
appealed to that jurisdiction’s highest appellate court.
– the court will determine if the conviction should be affirmed
and if the death penalty is justified
• The appellate court may affirm the conviction but not
the death penalty, and the case will be returned to trial
court for revision of the sentence.
– or the life sentence may be imposed automatically
• In dissenting opinions in Gregg, Justices Marshall and
Brennan were adamant in their contention that the
death penalty is a violation of the Eighth Amendment.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
I think a judge’s education is very
imperfect when it comes to the
sentencing process.
—Edward Davis, former Chief
of Police, Los Angeles, 1973
This photo is showing a view of Florida’s electric chair.
The chair, built from oak by prison inmates in 1923, was nicknamed
“Old Sparky.”
Before then, most executions were by hanging under the direction
of county sheriffs.
Since then, 233 men have been executed by using Old Sparky.
Procedures in the Justice System, Ninth Edition
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© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Excessive Punishment for Rape
• Appellate courts have at times held a that particular
sentence is excessive and disproportionate to the crime.
– in such an instance, the sentence will be set aside and the
case referred to the trial court for resentencing
• Excessive punishment is not easily determined and
often rests largely upon the personal viewpoints.
• In Coker v. Georgia, the US Supreme Court held that
the death penalty for the rape of an adult woman was
excessive and disproportionate to the crime.
Procedures in the Justice System, Ninth Edition
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© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Excessive Punishment for Rape - Coker
• The Coker Court stated the following:
– “We do not discount the seriousness of rape …It is highly
reprehensible, both in a moral sense and in its almost total
contempt for the personal integrity and autonomy”
– “Short of homicide, it is the “ultimate violation of self.”
– “Because it undermines the community’s sense of security,
there is public injury as well.”
– “Rape is without doubt deserving of serious punishment,
but …it does not compare with murder, which does involve
the unjustified taking of human life.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Excessive Punishment for Rape - Coker
• The Coker Court stated the following:
– “Life is over for the victim of the murderers; for the rape
victim, life may not be nearly so happy as it was, but it is
not over and normally is not beyond repair.”
– “We have the abiding conviction that the death penalty,
which “is unique in its severity and irrevocability,” is an
excessive penalty for the rapist, who, as such, does not take
human life.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Excessive Punishment for Rape - Coker
• Justice Powell, in the majority, dissented in one respect:
– “There is extreme variation in …culpability of rapists.”
– “The deliberate viciousness of the rapist may be greater than
that of the murderer.”
– “Some victims are so grievously injured physically or
psychologically that life is beyond repair.”
– “Thus it may be that the death penalty is not disproportionate
punishment for the crime of aggravated rape.”
– “…it has not been shown that society finds the penalty
disproportionate for all rapists.
– “…I would not prejudge the issue.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Excessive Punishment for Rape - Coker
• Powell’s statement indicates that if legislation were
passed making it possible to impose the death penalty
in aggravated rape cases, such a penalty might not be
declared excessive.
• The Coker decision, in which four justices declared the
death penalty excessive in all instances except murder,
may make the passage of such legislation difficult.
– even if such legislation were passed, there is no assurance the
Supreme Court would not hold the death penalty excessive
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Excessive Punishment for Rape - Coker
• Chief Justice Burger and Justice Rehnquist expressed
concern in Coker case over the majority’s decision:
– “On December 5, 1971, Coker raped and then stabbed to
death a young woman. …later Coker kidnapped and raped a
second young woman. …beat her with a club, and dragged
her into a wooded area where he left her for dead.”
– “…one and one-half years later, …escaped from the state
prison …raped another 16-year-old woman in the presence
of her husband, …abducted her from her home, and
threatened her with death and serious bodily harm.”
– “The Court today holds that the State of Georgia may not
impose the death penalty on Coker.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Excessive Punishment for Rape - Coker
• Chief Justice Burger and Justice Rehnquist expressed
concern in Coker case over the majority’s decision:
– “In so doing, it prevents the State from imposing any effective
punishment upon Coker for his latest rape.”
– “…moreover, bars Georgia from guaranteeing its citizens
that they will suffer no further attacks by this habitual
rapist.”
– “…the Court’s holding assures that petitioner (Coker) and
others in his position will henceforth feel no compunction
whatsoever about committing further rapes”
– “In that respect, today’s holding does even more harm than is
initially apparent.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Excessive Punishment for Rape
• Chief Justice Burger stated that some justices of the
Court are inclined to interject their own feelings.
– by restricting implementation of the death penalty through
strict imitations of its use
• This has also been manifested by some state supreme
court justices in strict interpretation of Witherspoon.
• In 2007 and 2008, several citizen groups pushed for
the Supreme Court to reconsider the possibility of the
death penalty for rape.
– the issue is currently being considered by the Court
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Subsequent Legislation
• Since Coker was handed down, the Supreme Court has
invalidated the death penalty in two other landmark
cases, establishing new approaches to limitations.
– in Godfrey v. Georgia, the Court held the sentence of death
amounted to cruel and unusual punishment, even though two
murders had been committed
– in Enmund v. Florida, Enmund alleged he did not participate
in the actual killing, had no intent to kill (during a robbery),
and the death penalty was disproportionate to the crime
– the Supreme Court agreed with Enmund that the death
penalty in his instance was cruel and unusual punishment
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Subsequent Legislation - Tison v. Arizona
• In Tison v. Arizona, the Court modified the intent set
forth in Enmund, stating that while the defendants had
no specific intent to kill the victims, their mental state
was one “reckless disregard for human life”.
– and the death penalty was not cruel and unusual punishment
under the circumstances
• Even though an appellate court reverses the death
penalty, the offender is not necessarily set free.
– in most instances, the sentence will be reduced to life
imprisonment, or life without the possibility of parole
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Subsequent Legislation
• A life sentence without the possibility of parole may
also be changed to life imprisonment by a governor at
any time.
• Under a life sentence, most offenders are eligible for
parole after serving about twelve years.
• That possibility does not mean that the offender will
be paroled after that period
– an offender sentenced to life usually does not serve until death
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Retarded Defendants - Atkins v. Virginia
• In 2002, the Supreme Court held, six-to-three, that the
Constitution’s ban on cruel and unusual punishment
bars the execution of mentally retarded people.
– a turnaround for the Court that thirteen years earlier found
no reason to bar the execution of the mentally retarded
• Atkins v. Virginia case involved Daryl Atkins, who had
an I.Q. of 59, sentenced to death for a murder and a
robbery committed when he was eighteen years old.
– the majority noted most states prohibit capital punishment
altogether or ban its use against the mentally retarded
Procedures in the Justice System, Ninth Edition
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© 2010 Pearson Higher Education, Inc.
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The Death Penalty
Retarded Defendants - Atkins v. Virginia
• The Supreme Court also noted that public opinion has
demonstrated a steadily dwindling public enthusiasm
for capital punishment in general.
• The decision failed to provide guidance to the states on
what constitutes mental retardation for the purposes of
the capital punishment prohibition.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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Fines
• While the origin of fines as a form of punishment is
lost in history, their early use served a dual purpose.
– money or property was taken from the wrongdoer and paid
to the victim of the crime or to his or her relatives
– the fine was also a source of revenue for the king or church
• As other means of reimbursing the victim became
available, the fine was no longer used for that purpose.
– but levied as a source of revenue for the government
• Use of fines in serious cases has dwindled considerably
since the Supreme Court Williams v. Illinois decision.
– but still employed as a form of punishment for minor crimes
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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Fines
Williams v. Illinois
• Most state statutes provide for imprisonment plus a
specific money amount that can be imposed as a fine.
– judges were able to impose a maximum prison time plus a fine
• If unable to pay the fine, the offender was imprisoned
and “worked out” the fine by being given credit in a
prescribed daily amount.
• In Williams v. Illinois, the Supreme Court held that
imprisoning someone indigent & unable to pay a fine,
beyond the maximum imprisonment prescribed by law,
was in violation of the Fourteenth Amendment.
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By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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Fines
Williams v. Illinois
• Facts show that Williams was convicted of petty theft
and received the maximum sentence provided by law.
– one year imprisonment and a $500 fine
– Williams was also taxed $5 court costs
• The judgment as permitted by Illinois statute, directed
that…
– “if Williams was in default of payment of the fine and court
costs at the expiration of the one-year sentence, he should
remain in jail pursuant to the Illinois Criminal Code to work
off the monetary obligations at the rate of $5 per day.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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Fines
Williams v. Illinois
• The Supreme Court, in Williams, stated the following:
– “We conclude that when the aggregate imprisonment
exceeds the maximum period …and results directly from an
involuntary nonpayment of a fine …we are confronted with
an impermissible discrimination which rests on ability to
pay, and accordingly, we reverse.”
– “It bears emphasis that our holding does not deal with a
judgment of confinement for nonpayment of a fine in the
familiar pattern of alternative sentence of “$30 or 30 days.”
– “We hold only that a state may not constitutionally imprison
beyond the maximum duration fixed by statute a defendant
who is financially unable to pay a fine.”
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By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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Fines
• Some appellate courts contend alternative penalties
results in different treatment for rich & poor offenders.
• The penalty inflicted by “$30 or 30 days” depends on
the offender’s financial ability and personal choice.
– if an offender chooses & is able to pay the fine,
imprisonment may be avoided
– if he/she chooses imprisonment, the fine may be avoided
– if unable to pay the fine, imprisonment cannot be avoided
• An indigent offender has no choice, and alternative
penalties work as a violation of the Equal Protection
Clause.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
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Fines
• To date, the alternative penalty procedure has not
disappeared from the justice system, and fines will
continue to be imposed as a form of penalty for some
time to come.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
Important topics for this chapter…
• Blood feuds resulted when it became a family
responsibility to avenge a wrong.
• Imprisonment as punishment was not used in early
English history.
• Banishment was one of the first forms of punishments.
• The colonies permitted the use of whipping as a
punishment.
• Today, imprisonment is one of the most common forms
of punishment.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• In most states, the judge determines the sentence. In a
few states, like Texas, the defendant may choose to be
sentenced by a jury.
• Most states require a presentence investigation prior to
the imposition of a sentence for a felony conviction.
• Probation is one of the most popular forms of
punishment today.
• The US Constitution prohibits cruel and unusual
punishments.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• The death penalty is considered excessive punishment
for the crime of rape.
• The use of fines as punishment has dwindled since the
Williams v. Illinois case.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Chapter End