Chapter 4
The Punishment of
Offenders
Clear & Cole, American Corrections, 6th
sentencing definition
judicialimposition of a
criminal sanction following
adjudication of a crime
Clear & Cole, American Corrections, 6th
factors influencing sentence
administrative context
of the courts
caseload pressure
presentence report
recom’s of probation officer
sentencing guidelines
or commissions, judicial rules
attitudes & values of judges
Hagan, Sentencing as a Human Process
Clear & Cole, American Corrections, 6th
presentence
report definition
a report prepared by a probation officer,
who investigates an offender’s
background to help the judge select an
appropriate sentence
Clear & Cole, American Corrections, 6th
contemporary philosophies
of punishment
farfrom ideas of ancient/medieval times
(eg, spiritual beliefs re: afterlife & bones;
demonology; sacred duty of the blood feud)
today: f (combination of classical, neo-
classical, positivist schools of thought)
sentencing reflects views re: nature of man,
behavior, fairness, public safety:
causes of behavior (why we act as we do)
mutability (can behavior change?)
justice, desert, & proportionality (what should
offender “get?”)
what will make public safe?
Clear & Cole, American Corrections, 6th
purposes of punishment
Punishment
of the offender
• retribution
Protection
of the public
• deterrence
note conflict: • rehabilitation
you can’t do • incapacitation
• restoration
them all!
Clear & Cole, American Corrections, 6th
“retribution” definition
offender must suffer for wrong-doing
the aim of punishment is to respond in
kind to one who has infringed on rights
of others & so deserves to be penalized;
severity of the sanction should fit
seriousness of the crime.
“eye for an eye”
Clear & Cole, American Corrections, 6th
retribution: basis
free will; man is a free moral agent
his “choice” calls for equal response
Kant’s moral imperative
eg.
England’s “bloody code” 1850
1977 Ca “determinate sentencing law”
“purpose of sentencing is punishment”
Clear & Cole, American Corrections, 6th
retribution: analysis
advantages
satisfies public sense of “justice,” “desert”
disadvantages
severe, harsh, inhumane
expensive: tough prisons are costly
inhibits individual change, improvement
may make offenders even more dangerous
features
harshness, severity, no programs
only backward-looking (toward crime)
Clear & Cole, American Corrections, 6th
“deterrence” definition
purpose of punishment is to get people
to conform their behavior to the
dictates of law by assuring that non-
conformity will cause them more pain
than conformity will give them pleasure
NO!
Clear & Cole, American Corrections, 6th
deterrence: basis
assumes people are rational
people can assess costs, benefits of actions
they will weigh consequences of actions
(Hedonic calculus determines behavior:)
people will choose conduct if
pleasure outweighs pain
to get people to conform, make sure:
(pain of punishment) > (pleasure from crime)!
utility
purpose of punishment is to prevent crime: no
more, no less
Clear & Cole, American Corrections, 6th
deterrence: analysis
advantages
public safety: public feels better
crime prevention: saves money; avoids criminals
disadvantages
crime not always rational
emotional, impulsive, psychological, addiction
miscalculation of utility (by offender or sentencer)
miscalculation of pleasure
offender overestimates value of crime
sentencer underestimate value of crime; note: crime as a “high”
miscalculate pain (or its probability)
sentencer overestimates apprehension, conviction rates
note: pain ≠ “objective”; pain = f (perception)
sentence (eg, prison) may not seen as tough by many
prison = normal for some! even reward!
features: no more/less pain than utility requires
Clear & Cole, American Corrections, 6th
deterrence: aims & effects
“general deterrence”
punishment of any offender is intended to be an
example to the general public, to discourage them
from committing an offense
“special deterrence” (specific / individual)
punishment is intended to discourage a specific
individual offender from committing crime again in
the future
“marginal deterrence” (effect in part, but not
complete)
eg, w/ limit set at 65, speeder reduces illegal speed
from 85 to 75
eg, armed vs. strong-arm robbery (weapon)
Clear & Cole, American Corrections, 6th
“rehabilitation” definition
purpose of punishment is to restore a
convicted offender to a constructive
place in society through some form of
vocational or educational training or
therapy that will provide skills and/or
instill values that will allow offender to
avoid crime
Clear & Cole, American Corrections, 6th
rehabilitation: basis
behavior = f (social, psychological,
economic, physical factors)
if we can manipulate factors,
we can change behavior
objectives: “treat” offender to avoid:
desire to commit crime
need to resort to crime
Clear & Cole, American Corrections, 6th
rehabilitation: analysis
advantages
public
safety, societal improvement,
humanitarian (individual salvation)
disadvantages
difficult to accomplish; often fails
requires knowledge, science
personnel, training, hard work
develop programs, facilities, $$
sentence disparity
sentence according to needs, not crime
features
indeterminate sentence, discretionary
release, small prisons, treatment staff
Clear & Cole, American Corrections, 6th
“incapacitation” definition
purpose of punishment is to deprive
offender of ability to commit crimes
against society, usually by detention of
the offender in prison, or to otherwise
render offender
unable to do harm
Clear & Cole, American Corrections, 6th
incapacitation: basis
less ambitious than social engineering
objective simply public safety
skeptical of our ability to diagnose needs,
provide appropriate programs, or actually
change people
equally skeptical of people’s willingness,
desire to change
Clear & Cole, American Corrections, 6th
incapacitation: analysis
advantages
public safety
can be cheaper (when using technology)
simple (not ambitious)
disadvantages
not a long-term solution to crime
can be costly (if incarceration)
privacy issues (if biology, technology)
some forms too lenient; no “pain”
features
whatever makes offender incapable of
committing crime
Clear & Cole, American Corrections, 6th
5 types of incapacitation
custodial
banishment/transportation
incarceration
mechanical
electronic monitoring/ belt restraint
transmitter/receiver
physiological
castration, sterilization
“chemical” castration (depo-provera)
psychological (A Clockwork Orange)
surveillance
special intensive supervision
video home monitoring
community monitoring (not even sentence)
Clear & Cole, American Corrections, 6th
“restoration” definition
aimof punishment is to repair
the damage done to the victim &
community by an offender’s
criminal act
Clear & Cole, American Corrections, 6th
restoration: basis
long-term solution to crime lies in
making offender directly accountable to
victim & community for consequences of
his crime.
“paying debt” should be more than just
“doing time”
offender should have to repair damage
he has caused
that is better for victim AND offender
Clear & Cole, American Corrections, 6th
restoration: analysis
advantages
public allowed to heal from offense
creates stronger community
offender held accountable to victim--
rehabilitation
disadvantages
not punitive enough for some public
seen as “easy” by some offenders
some victims don’t want contact
features
restitution,community service, interaction
with victims
Clear & Cole, American Corrections, 6th
“community
justice” definition
a model of criminal justice
administration that emphasizes
restorative justice, including
reparation to the victim &
community; also approaches CJA
from a problem-solving perspective,
with citizen involvement in crime
prevention
Clear & Cole, American Corrections, 6th
sentencing themes
get tough! (make offenders pay!)
reform offenders! (still worthwhile)
save money! (economy in sentencing)
sentence equity! (structure discretion!)
won support of both conservatives & liberals!
conservatives:
eliminate judicial discretion: “take away ability of
liberal, molly-coddling judges to let offenders off”
liberals:
justice requires that we “treat similarly situated
offenders similarly”
Clear & Cole, American Corrections, 6th
current sentencing options,
and their dimensions
intermediate
sanctions
how long? (70’s-80’s) how long?
prison/jail probation
(1.3 / .6 mill.) in / out? (≈ 4 mill.)
conditions:
special report?
how often? job?
conditions?
treatment? travel?
Clear & Cole, American Corrections, 6th
“probation” definition
sentence allowing offender to serve
sanction imposed by court while living &
being supervised in community
John Augustus, 1841, Boston bootmaker
bailed out ≈ 2,000 men/women ($1/4 mill.)
(Boston Police Court--Judge Thatcher)
helped find homes, lodging, jobs
1st real alternative to incarceration
more like “diversion” than probation
note: nearly 60% of all adults under
correctional superv. are on probation
Clear & Cole, American Corrections, 6th
“incarceration” definition
a sentence requiring offenders to serve
the sanctions imposed for the most
serious offenses in a “total” facility
designed to hold adult offenders for a
minimum of one year
note: less than 30% of
all adults under correctional
supervision are incarcerated
in prisons & jails
Clear & Cole, American Corrections, 6th
“intermediate
sanctions” definition
a variety of punishments that are
more restrictive than traditional
probation, but less severe and less
costly than incarceration
Clear & Cole, American Corrections, 6th
sentence disparity definition
a divergence in the types
& lengths of sentences
imposed for the same
crime or for crimes of
comparable seriousness by
offenders with similar
backgrounds when no
reasonable justification for the
divergence can be discerned
Clear & Cole, American Corrections, 6th
structuring sentences:
4 basic schemes
unstructured sentencing
1. “indeterminate” sentencing
structured sentencing
2. “determinate” sentencing
3. “mandatory” sentencing
4. sentencing “guidelines”
Clear & Cole, American Corrections, 6th
1. indeterminate
sentencing definition
period of incarceration, with minimum &
maximum terms determined by judicial or
legislative authority at time of sentencing
release usually decided by parole board, as f
(offender’s behavior)
goal: to reform offender (rehabilitation)
NY, 1876 (Elmira Reformatory)
faith in science, human change
relationship of indeterminate s’g rehabilitation
term is usually reduced by “good time”
used as primary scheme in 36 states
Clear & Cole, American Corrections, 6th
2. determinate
sentencing definition
disillusionment with rehabilitative ideal
sentence of incarceration involves a fixed
term of years, determined in advance &
imposed at time of sentencing
release is automatic, upon expiration
of fixed term
associated with concept of retribution
period is usually reduced by “good time”
used as primary scheme in 14 states
Clear & Cole, American Corrections, 6th
3. mandatory
sentencing definition
a sentence specifying a required minimum
term of incarceration for certain offenders
and/or circumstances (also called enhancement)
used in some form in all 50 states
… for specific crimes:
drug possession, trafficking
DUI
sex offenses
… for specific circumstances:
prior criminal history
use of firearm
serious bodily injury
substantial property damage
Clear & Cole, American Corrections, 6th
4. sentencing
guidelines definition
scheme of benchmark sentences designed to
assist judges in selecting sentence
guidelines are based on either:
past sentencing practices of judges, or
sentence recommendations by legislature or
commission for specific types of cases
judge must give reason for deviation
deviations usually subject to review by court or
commission
17 states have adopted scheme
no new states since ‘94
Clear & Cole, American Corrections, 6th
criteria built into guidelines
sentence is based on 2 dimensions
offender score
criminal history
background factors--education, stability
offense severity score
severity of crime
degree of harm/risk to victims
degree of damage to property
use of weapon
recommended sentences are expressed
on a grid
Clear & Cole, American Corrections, 6th
how guidelines work
(Minnesota Guidelines Grid)
minor <--------------------------------> serious
CRIMINAL HISTORY SCORE
serious <---------------> minor
OFFENSE SEVERITY
0-1 2 3 4 5
0-1
2
3
4
5
Clear & Cole, American Corrections, 6th
how guidelines work
(Minnesota Guidelines Grid)
minor <--------------------------------> serious
CRIMINAL HISTORY SCORE
serious <---------------> minor
0 1 2 3 4 5 6+
OFFENSE SEVERITY
drug s ale 12 12 12 13 15 17 19
(18 -20)
ch k fo rgery 12 12 13 15 17 19 21
(20 - 22)
t hef t-mi no r 12 13 15 17 19 22 25
(18 -20) (21 – 23) (24 – 26)
********* ******* ******* ******* ******* ******* ******* *******
1 º as s ault 86 98 110 122 134 146 158
(81-91) (93-103) (105-115) (117-127) (129-139) (141-151) (153-163)
3 º murde r 150 165 180 195 210 225 240
(144-156) (159-171) (174-186) (189-201) (204-216) (219-231) (234-246)
2 º murde r 306 326 346 366 386 406 426
(229-313) (319-333) (339-353) (359-373) (379-393) (399-413) (419-433)
note: for yellow squares: judge may opt for non-jail sentence;
for others, presumptive commitment is to state prison.
Clear & Cole, American Corrections, 6th
Now, you try it!
determine guideline sentence for the
following offender ...
offense = assault in the first degree
criminal history score = 3
note: a range of months shown in
parentheses means you (the judge) can
select a term anywhere within the range.
What is the guideline?
Does it make sense to you?
Clear & Cole, American Corrections, 6th
the solution
(Minnesota Guidelines Grid)
minor <---------------------------------> serious
CRIMINAL HISTORY SCORE
0 1 2 3 4 5 6+
minor <-------------> serious
drug s ale 12 12 12 13 15 17 19
OFFENSE SEVERITY
(18 -20)
ch k fo rgery 12 12 13 15 17 19 21
(20 - 22)
t hef t-mi no r 12 13 15 17 19 22 25
(18 -20) (21 – 23) (24 – 26)
********* ******* ******* ******* ******* ******* ******* *******
1 º as s ault 86 98 110 122 134 146 158
(81-91) (93-103) (105-115) (117-127) (129-139) (141-151) (153-163)
3 º murde r 150 165 180 195 210 225 240
(144-156) (159-171) (174-186) (189-201) (204-216) (219-231) (234-246)
2 º murde r 306 326 346 366 386 406 426
(229-313) (319-333) (339-353) (359-373) (379-393) (399-413) (419-433)
note: for yellow squares: judge may opt for non-jail sentence;
for others, presumptive commitment is to state prison.
Clear & Cole, American Corrections, 6th
other “get-tough” reforms besides determinate
& mandatory sentencing
truth-in-sentencing laws
three strikes laws
chain gangs
Clear & Cole, American Corrections, 6th
“truth-in-
sentencing” definition
special
laws requiring completion of nearly all of
maximum sentence (eg, 85%)
40 states; provisions vary
Arizona:
homicide, rape, sex off’s --> all of sentence
all other offenses --> 85%
1994: federal gov. allocated most of $10 bill. in
prison construction funds to states adopting such
laws
laws expected to increase prison populations,
correctional construction & operations costs
by 2001, several states began to repeal these laws,
due to prison growth & cost
Clear & Cole, American Corrections, 6th
“three strikes
& you’re out” definition
special mandatory sentencing laws calling for
long prison terms for repeat felons
“fad” from 1993 to 1995
by ’96: enacted by 23 states & federal gov.
provisions vary:
what triggers law? (2, 3, or 4 “strikes”)
what is a “strike?” (“felony,”; “serious or violent
felony”; even some misdemeanors which can be
charged as felonies in states like California (so-
called “wobblers”)
what is “out?” (fixed term, eg, 25 yrs;
indeterminate term, eg, 25 to life; LWOP (life
without parole)
Clear & Cole, American Corrections, 6th
chain gangs
Alabama, Arizona, Florida, Iowa, Maine
backfired: not used as intended/imagined
authorities won’t risk using serious offenders;
so only minor offenders allowed
can’t “work” effectively with chains
so, either little work done, or don’t use chains
cost of supervision in field is much higher
that in-custody costs
so, used less than intended
Clear & Cole, American Corrections, 6th
punctuating the sentence:
how it ends...
discretionary release by admin. body
eg, parole board
includes some states with such provisions
under old sentencing laws
(eg, Ca.)
automatic release
1. mandatory release
must be released; max term less good time
2. expiration of term
“max” out; served all of time owed
Clear & Cole, American Corrections, 6th
reductions in sentence:
getting out of “jail” free?
good time
unitsof time subtracted from a sentence, for
good conduct
clemency
executive or legislative forgiveness for crime,
usually accompanied by some reduction of
sentence
pardon
executive act excusing one from a crime &
the civil consequences of crime
commutation
executive act shortening one’s sentence for a
crime
Clear & Cole, American Corrections, 6th
“good time” definition
amount of time by which an inmate’s
sentence may be reduced, at the
discretion of prison administrators, as a
reward for good behavior or participation
in vocational, educational, and/or
treatment programs
most prisoners serve no more than 1/3 of
the average sentence imposed for their
offense category
Clear & Cole, American Corrections, 6th
“good time”: not for everyone
statutory (“compensatory”)
awarded automatically
must have no disciplinary “write-ups”
awarded at a rate of 1/5 to 1/2 off term
meritorious
earned for behavior, program participation
eg, Ca. “work incentive law” (day for day)
heroic (eg, save guard/inmate; 1 yr.)
not available in Utah, Montana, Hawaii
varies (Va, sentence reduced 50%; Miss., 15%)
Clear & Cole, American Corrections, 6th
“straight time”:
post-release supervision
exists in some form in all 50 states
usually called “parole”
other forms:
court may impose term of ‘probation’ after
prison term
release is followed by period of “community
custody & supervision”
release from prison is “conditional”; offender
is subject to specified conditions
Clear & Cole, American Corrections, 6th
