Week Six Assignment Sentencing Submitted by Travis Hance

The philosophy of the court systems within the United States is an ever-evolving quest for fair and measured justice. It is a quest to protect the rights and freedoms of both the citizens as well as the suspects in a crime. Throughout history, the concepts of justice, sentencing, and correction have been based on four major factors that thread the human makeup. These are religion, morals, values, and emotions. An examination of different societal makeups shows how each of these factors plays an integral part in that group’s application of justice, and therefore sentencing. Several centuries ago, the concept of sentencing was vague, and in no way tied to a judicial process. A local magistrate or other authority figure was empowered to examine and judge wrongdoers, whether innocent or guilty. Punishment was often harsh, and often included torture and death. The base view of the people was that sin, and therefore criminal behavior, was proof of the suspects lack of moral fortitude, and whatever consequences the judge deemed prudent were deserved. The concept of ‘innocent until proven guilty’ was alien. As societies evolution progressed, the citizenry began to demand a more refined system, in which judges or magistrates did not wield ultimate authority in criminal cases. Philosophers became obsessed with the concepts of fair government, which could only be brought about by representation of the populace that they presided over. This led naturally to the concept that the criminal was aware of their actions. Sin was not the reason for criminal activity, rather a choice that had to be consciously made. Therefore, sentencing philosophies changed to try to convince potential wrongdoers that the consequences outweighed the potential benefits. As our society has continued to evolve, the need to punish criminals is still recognized. However, a new methodology has started to evolve, the concept of reformation. While we still impose sanctions, remove the criminal from interaction with society, and seek to provide deterrence, modern methods also promote rehabilitation. This is the concept that once punishment has been endured, there is hope that the criminal-now-turned-citizen might rejoin society. The five goals of modern sentencing and punishment

Retribution

Retribution is one of the oldest of human concepts. Even within the Bible, the idea of retribution is expressed as ‘an eye for an eye, a tooth for a tooth’. Oddly enough, this simple statement also expresses a level of measurement based on offense. However, our society chooses to interpret the concept of retribution, the easiest way to explain what society requires can be defined as a call for punishment of wrongdoers. Incapacitation Incapacitation is the restraint of the criminal from society in order to prevent additional harm. Within the past few centuries, and in some third world countries, the concept of incapacitation involved physical mutilation. While the amputation of hands would certainly discourage thievery, modern society demands a different approach, which has resulted in the concept of imprisonment as a form of incapacitation. Deterrence Deterrence is a more modern approach to battle against crime. Where retribution and incapacitation are reactive, deterrence is a proactive approach. It attempts to influence the criminal mind before additional criminal activities are committed. Rehabilitation Rehabilitation is a concept that addresses the physical and psychological needs of the criminal. While retribution and deterrence work through fear of future consequences, rehabilitation addresses the core of the individual with the expressed goal of making changes, so that the reformed criminal might become a productive member of society once more. Restoration The concept of restoration is one that has developed recently. The goal is not simply to punish the criminal actions, but to establish a path forward. It also changes the past concepts of retribution by involving both criminal and the injured party in a healing process. All parties must take place in the process that moves the criminal from the point where justice has been served and dues have been paid, to the potential outcome of once again becoming a productive member of society. While imperfect, the concept is noble and worth pursuit. While there will almost always be a subset of hardened criminals that refuse to conform, there are a large number of offenders within the system that simply need a chance to improve themselves. These are the inmates targeted through the restoration concept to receive education so that they may rejoin society with productive, non-criminal skills.

Sentencing

The concept of proportionality sentencing has developed recently as society has turned more attention to individual rights. This concept in its most basic form reflects that sentencing must also reflect the severity of the crime. In other words, a court would not inflict the death penalty for a parking ticket. Equity in sentencing is therefore vital because of the vast breadth of our society. While on one side of the nation a certain standard might be held, it would be unthinkable that on the other side of the nation a similar criminal action would be judged differently. Therefore, the concept of equity means that all citizens, regardless of race or creed, receive justice in its purest achievable form. Within both concepts enters another idea, that of social debt. Repeat offenders obviously have failed to take advantage of the programs that a modern society has put in place. With repetitive criminal action comes the concept of enhancement. In its most basic form this means that the more crime you commit, the harsher the punishments will become. Structured sentencing is a relatively new concept. While a trial’s determination might assign a period of years for criminal behavior, the structured sentencing concept allows that the criminal might become rehabilitated faster than average, and the sentence can thereby be reduced due to good behavior, or progress shown. Such sentencing can also include a mix of determined time and community service, which is almost always based on the severity of the crime committed. Determinate sentencing is, however, relatively fixed. It is the model by which an offender is assigned a term of imprisonment. While such time might be reduced through good behavior, the model in its most basic form would require the same punishment for the same criminal, regardless of circumstance. Finally we come to voluntary or advisory guidelines. Such guidelines are often the result of previous cases and briefs, which can be of benefit to judges and attorneys. While they may provide valuable insight into the methodology of prosecuting and sentencing criminals, actual law does not require them.

Relationships between sentencing and punishment As we examine the various complications between the trial phase, sentencing, and punishment, it is easy to see how a society must hold to its ideals. While the system continues to evolve, we must protect the rights of the citizens as well as those of the suspect. A fair and just court must carry out sentencing. In cases of trial by jury, the jury must be balanced, and have no previous knowledge of the case. This controversy has arisen recently with jurors accessing information via the Internet, even though otherwise sequestered. While the suspension of rights is something reprehensible, we should strive to be a society willing to temporarily, voluntarily

suspend our rights in the pursuit of justice. If not for the noble ideal of the pursuit of justice, at least because we wish our fellow citizens to do the same for us. The only change that I would make at this point within our legal system is the reduction in the ability to sue anyone for anything. The concept of recidivism, or undesirable behaviors, as judged by societal norms can hopefully continue to be avoided as our judicial system evolves. We as a society must demand a fair and balanced system. Punishments must fit the crime, and should be swift. The level of punishment should not only fit the crime, but should also take into account the criminals background, intent, and also whether reckless or negligent behaviors were involved. Modification of current sentencing norms to take into account such factors may turn first time offenders away from crime, when they see that society cares that they become rehabilitated. In addition, if a prison sentence is assigned, useful skills should be encouraged. While physical fitness and television can prove to be useful, I feel that part of a prison sentence should be the requirement to receive either a technical certificate or a college degree. With education comes greater opportunities, and I see such as the best possible means to avoid recidivism. In summary, as our court systems have evolved over the centuries, we can see marked changes in the concepts and philosophies surrounding both the judicial process and sentencing. As we continue to evolve, we as a society, and especially those of us serving in an official capacity, have a sacred trust to continue promoting the best ideals of justice. Our first trust is to protect society, to act as the sheepdog, which protects the flock from wolves. Our second trust, which is much harder, is to protect the rights of the wolves throughout the process. When we achieve this ideal, I believe that we will have reached the ultimate standard of justice.