Author:Jeffrey Lehman, Shirelle Phelps

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The post-conviction stage of the criminal justice process, in which the defendant is brought before the court for the imposition of a penalty.

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If a defendant is convicted in a criminal prosecution, the event that follows the verdict is called sentencing. A sentence is the penalty ordered by the court. Generally, the primary goals of sentencing are punishment, deterrence, incapacitation, and rehabilitation. In some states, juries may be entitled to pronounce sentence, but in most states, and in federal court, sentencing is performed by a judge.

For serious crimes, sentencing is usually pronounced at a sentencing hearing, where the prosecutor and the defendant present their arguments regarding the penalty. For violations and other minor charges, sentencing is either predetermined or pronounced immediately after conviction.

Sentencing in the United States has undergone several dramatic transformations. In the eighteenth century, the sentencing of criminal defendants was left to juries. If a defendant was convicted, the jury decided the facts that would affect sentencing, and a predetermined sentence was imposed based on those findings. In the late eighteenth century, legislatures began to prescribe imprisonment as punishment, replacing such punishments as public whipping and confinement in stocks.

Beginning in the late nineteenth century, legislatures began to pass statutes that left sentencing to the discretion of judges. This movement toward indeterminate sentencing allowed judges to order a sentence tailored to the needs of both the defendant and society. Under sentencing statutes, a sentence could be any combination of PROBATION, fines, restitution (repayment to victims), imprisonment, and community service. Judges were allowed to consider a wide range of evidence in fashioning a sentence, including MITIGATING CIRCUMSTANCES.

In the 1950s, Congress passed a spate of federal legislation requiring that judges impose mandatory minimum sentences for drug offenses. These laws directed that defendants must serve a minimum number of years in prison upon conviction for certain offenses, and prevented judges from reducing sentences in consideration of mitigating factors. In the 1960s, these laws came under attack for failing to deter drug crimes. Moreover, prosecutors were reluctant to prosecute mandatory minimum cases because they were considered unjustly severe.

By the late 1970s, indeterminate sentencing had fallen into disfavor. Many perceived that crime rates were soaring, and a powerful lobby emerged demanding sentencing reform. These critics argued for longer prison sentences, and they also pushed for uniformity in sentencing, noting that discretionary sentencing produced widely various sentences for the same crime.

Several states' legislatures enacted sentencing guidelines in the 1970s and early 1980s. These guidelines increased punishment for criminal offenses and limited judicial discretion in sentencing by identifying the punishment required upon conviction for a particular offense. Under many of the new sentencing statutes, PAROLE for prison inmates was either abolished or restricted to certain offenses. Conservatives hailed this "truth-in-sentencing" framework as a victory over liberal judges. Liberals endorsed sentencing reform because it purported to eliminate the possibility of racial disparity in sentencing.

Following the lead of these state legislatures, Congress passed the Sentencing Reform Act of 1984 (SRA) (Pub. L. No. 98-473, 98 Stat. 1987 [1984] [codified in 18 U.S.C.A. §§ 3551?3556 (1988 & Supp. V 1993)]). The SRA abolished parole for federal prisoners and reduced the amount of time off granted for good behavior.

The SRA also established the U.S. SENTENCING COMMISSION (USSC) and directed it to create a new sentencing system (28 U.S.C.A. §§ 991(b), 994(a)(1)-(2) [1988]). Between 1984 and 1987, the USSC crafted the Federal Sentencing Guidelines. Since Congress did not object to the guidelines, they became effective on November 1, 1987 (28 U.S.C.A. § 994 [1988 & Supp. V 1993]).

The Federal Sentencing Guidelines shift the focus in sentencing from the offender to the offense. The guidelines categorize offenses and identify the sentence required upon conviction. Judges are allowed to increase or decrease sentences or depart from the guidelines, but only if they have a very good explanation and clearly state the reasons on the record.

Upward departures, or increases in sentences, are easy to achieve under section 1B1.2 of the sentencing guidelines. This section allows the sentencing judge to consider all "relevant conduct," including the circumstances surrounding the conviction, offenses that were committed at the same time as the charged offense but were not charged, prior convictions, and acts for which the defendant was previously tried but acquitted.

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In limited circumstances, judges may decrease a sentence. For example, a judge may downwardly depart if the defendant accepts responsibility for the crime or committed the crime to avoid a more serious offense. Prosecutors often challenge decreased sentences on appeal, and they usually win because the guidelines call for adherence in all but exceptional cases.

Prosecutors receive tremendous discretion in the sentencing process, and they have virtually taken over the sentencing process in federal court. Under the guidelines, prosecutors can easily increase or decrease a sentence by tinkering with the number of counts either in the initial charge or pursuant to a plea agreement. For example, a prosecutor may not use evidence of certain conduct in pursuing a criminal charge. However, upon conviction...

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