PART 3 - CHAPTER 13 Sentencing

• Jurisdiction: United States

Chapter 13 Sentencing

CHAPTER OBJECTIVES

After reading this chapter, you should be able to:

■ Describe the variety of different sentencing options available in the federal and state legal systems.
■ Discuss the use of sentencing guidelines and the degree to which judges are given discretion in determining an individual's sentence.
■ Explain the difference between probation and parole.
■ Discuss the arguments for and against the imposition of the death penalty.
■ Explain the differences among federal, state, and local detention facilities, and between publicly and privately run prisons

INTRODUCTION

This chapter covers the nature of the punishments that judges can impose and the process used in determining what those penalties will be. In Chapters 14 and 15, we will cover appeals, post-conviction relief, pardons, and other related procedures.

In cases in which the defendant is found not guilty on all counts, the defendant will be released from custody (if incarcerated at the time of the trial) or otherwise free to go, and funds that were posted for bail will be refunded.¹ The Fifth Amendment double jeopardy clause prevents the government from reprosecuting the defendant on those same charges.²

In those relatively rare cases in which the jury could not agree on a verdict for one or more of the counts, the prosecutor has the option of either retrying the defendant on some or all of the charges related to those counts or dismissing the charges.³ On the other hand, when a defendant is found guilty and post-verdict motions have been denied, the case moves on to the sentencing and appeals stages.

A. TYPES OF PUNISHMENT

The severity of punishment generally varies in proportion to the seriousness of the offense. For minor infractions, such as simple traffic citations, ordinance violations, and lesser misdemeanors, the penalty is typically a small fine. In cases involving more serious crimes, the punishment usually involves incarceration, and in some jurisdictions, even death.

Before discussing the sentencing process, it is useful to identify the wide range of sentences that are authorized for different type of offenses. A sentence is a judgment formally pronouncing the punishment to be imposed on a person who has been convicted of a crime.

In the federal system, the sentencing judge is authorized to impose fines, restitution, imprisonment, and probation.⁴ State court judges have these options as well as a variety of additional sentencing alternatives, such as court supervision, traffic school, and substance abuse treatment.

1. FINES, RESTITUTION, ASSESSMENTS, SURCHARGES, AND COSTS

All jurisdictions authorize judges to impose fines in misdemeanor cases, and most also allow it in felonies.⁵ Fines often are the only penalty available for ordinance violations, minor traffic offenses, and misdemeanors.

The statute or local ordinance creating the offense usually establishes an upper limit for the fine but leaves the actual dollar amount up to the judge's discretion. Sometimes the amount of the fine is defined in terms of multipliers of the amount of the defendant's financial gain or the victim's loss. Judges will often take the defendant's financial resources into account before imposing large fines, so someone who is wealthy may be ordered to pay a much larger fine than an indigent defendant. For instance, former vice president Dick Cheney's chief of staff, Scooter Libby, was ordered to pay the maximum fine of $250,000 as part of his sentence for perjury and obstruction of justice.⁶

Restitution is money paid to the victims of the crime to compensate them for their losses. Judges consider several factors in deciding whether to order restitution, such as the amount of victim's loss resulting from the crime; the defendant's financial resources; and the defendant's earning ability and financial needs.⁷ In the federal system, the judge must order restitution when the defendant is convicted of certain offenses, such as violent crimes, crimes against property, drug offenses, consumer product offenses, sexual abuse of children, and telemarketing fraud.⁸

The restitution amount can be staggering in some white-collar crime cases. For instance, the district judge ordered the ex-congressional aide Michael Scanlon to pay his victims over $19 million as part of a plea agreement in a fraud and corruption case, and the New York financier Bernard Madoff agreed to make restitution in the sum of $171 billion to the victims of his Ponzi scheme. Unfortunately, the victims don't always receive all the money that the judge orders. Despite the U.S. District judge's forfeiture order requiring Madoff to turn over all of his assets, the victims probably will never be fully compensated for their losses.

In addition to fines and restitution orders, the sentencing judge usually orders the defendant to pay court costs and various assessments.⁹ The court costs are monetary reimbursements for such things as the expenses of subpoenaing witnesses, providing probation services, and conducting drug testing. Assessments are payments to fund court-connected programs related to the crime.

2. SUPERVISION, PROBATION, AND PAROLE

In the context of sentencing, there are situations in which criminal offenders are not incarcerated but do have special limitations placed on what they can do. Some of these judicial dispositions are non-convictions, whereas others are criminal convictions.

a. Court Supervision

For less serious offenses and infractions, such as traffic tickets and minor offenses, the violators may be eligible for court supervision. With court supervision, the judge imposes conditions on the defendant and takes the case under advisement for a fixed period. If the conditions are satisfied, the case is dismissed and the defendant is not convicted. Typical conditions include refraining from committing other offenses while on supervision, payment of fines and costs, performing public service work, undergoing substance abuse treatment, and completing traffic school. Courts do not give court supervision for felonies or to chronic offenders, and the supervision period usually ranges from 3 to 24 months.

b. Probation

Probation is a sentencing alternative to incarceration in which the offender is allowed to continue to live in the community but must abide by certain conditions set by the judge. Unlike court supervision, the offender is first convicted of the crime.¹⁰ Furthermore, the conditions of probation are much more imposing than those of court supervision. The defendant may be ordered to stay away from the victim, consent to random drug testing, and refrain from possessing a firearm. The individual is also required to regularly report to a probation officer. An example of a state court probation order appears in Exhibit 13.1.

If a defendant either commits another crime or violates one of the conditions of probation, the prosecutor will file a petition to revoke probation (PTR). Usually, the government takes this action when the offender commits a crime, flunks a random drug test, or chronically fails to report to the probation officer. If this petition is granted, the judge may revoke probation and resentence the defendant.

3. INCARCERATION

Incarceration, mandatory confinement in a facility that limits one's ability to move around as the person wishes, is the penalty that comes to most people's minds when they think of a criminal sentence. Jails are facilities controlled by a county or another local governmental authority to hold criminal defendants awaiting trial and offenders convicted in state court of misdemeanors. Prisons, also known as penitentiaries, are facilities controlled by the state or federal government to house convicted felons. Federal misdemeanor offenders also may be sentenced to prison.

There are many variations of prison facilities. They range from maximum-security adult prisons to minimum-security juvenile "boot camps." Some are run by the federal government, some by state governments, and some by private, for-profit corporations. Within the same prison, there often are separate cells and cell blocks for different levels of offenders.

To protect them from being molested or otherwise negatively influenced by adult criminals, juveniles typically are held either in separate juvenile detention facilities or in special, separate sections of local jails. In some jurisdictions, younger adults may be sentenced to serve their time in a boot camp in lieu of prison. These boot camps are frequently set up in remote rural areas, house their residents in tents or cabins, and maintain a military type of training and atmosphere. This sentence is usually imposed on first-time offenders who are physically capable of withstanding the rigors of the program. In jurisdictions where this option is offered, it is in high demand because the duration of incarceration is significantly shorter than the prison term that the offender would likely receive. Some inmates are given jobs in the prison laundry or kitchen, and some are even trained to assist other inmates do legal research in the library.

Exhibit 13.1: Order of Probation

Wisconsin college student Anthony Scholfield was convicted of felony burglary after a search of his apartment uncovered more than 850 pairs of stolen women's underwear. The judge sentenced him to ninety days' periodic jail incarceration so he could attend school and work. He also was ordered to stay away from his female victims and pay $8,873.04 in restitution. Released after two years' probation, Scholfield committed a similar offense two years later. The court's judgment of conviction and sentencing order appears below.

DISCUSSION QUESTION

1. What are the advantages and disadvantages of private, for-profit prisons?

a. Periodic Imprisonment

Sometimes probation is combined with incarceration in what is known as periodic imprisonment. In this situation, the convicted defendant is sentenced to jail but is permitted to leave the jail during...