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Supplement Notes

Non-Constitutional Sources of Sentencing Rights

Statutes, court rules, and state constitutions frequently give defendants rights
during sentencing proceedings that go beyond those imparted by constitution
Factors Considered at Sentencing
Sentencing judges can take into considerations a defendants perjury even if they
havent been charged with it yet because a D who can lie on the stand is less
likely to be a good candidate for rehabilitiation
A prior misdemeanor conviction obtained when an indigent D was not represented
by counsel but which didnt result in incarceration can be a factor when
sentencing D in a subsequent criminal case.
A Ds refusal to cooperate by giving up criminal activities of others can in some
cases be considered when sentencing
o If D says like I cant give you names b/c they might retaliate judge can
decide if thats legit and take into consideration
Illegally Obtained Evidence
o Supreme ct hasnt decided whether illegally obtained evidence is fully
o Most cts have held that such evidence is admissible during a sentencing
hearing, at least when the searchs purpose was not to find evidence to
enhance Ds sentence.
Cts weighed the costs of applying the 4th Amendment exclusionary
rule against the benefits of applying the rule in the sentencing
One of the costs is the withholding of evidence- which can lead to
imposition of overly lenient or otherwise inappropriate penalties on
convicted offenders
Costs generally outweigh any benefit that exclusion of evidence
might have in deterring violation s of the 4th by police officers.
CTs reasoned that suppression of evidence has deterent effect by
making that evidence inadmissible in trial, but inadmissibility at
sentencing hearing wont yield much if any benefit in terms of
deterrence- unless violation occurred for purpose of locating
evidence to enhance Ds sentence.
Victim impact statements ARE allowed at sentencing hearings
o But families cannot give descriptions and opinions of Ds crimes
Ch. 4- Sentencing Statutes and Guidelines
Two central decisions that must be made when sentencing a criminal defendant
o 1. The In-Out Decision: Should D be sentenced to prison or should they be
punished in the community?
o 2. Length, Amount, and Conditions of Sentence
Indeterminate Sentencing Statutes

o Judge imposes sentence ranging of time falling in parameters set by the

One argued advantage of parole system is that parole boards,
drawing on advice of correctional officials who have been able to
closely observe prisoners during confinement can best determine
when a prisoner is ready to be released
Also claim that parole system relieves prison crowding
Two major problem stem from indeterminate sentencing structures
First, they generate uncertainty- augmenting stress and
tension that inevitably attend incarceration- this stress and
tension an interfere w rehabilitation. Prisoners may also
start to resent others when they see other inmates be
released on parole while theyre stuck
Second- theres an enormous disparity in length of
confinement of comparable prisoners that can result from
reltively uncurbed sentencing discretion of judges
Determinate Sentencing Statutes
o Determinate-Discretionary Sentencing
Judge selects sentence from range set by legislature- judge, not
parole board defines amount of time that person will be confined
Althuogh such statutes delineate the range from which a judge will
select a finite prison sentence for a particular crime, other statutes
often authorize the judge to impose a community-based sanction if
imprisonment is unnecessary
Also the sentence judge imposes can be reduced by good-time
credits- sentenced reduced
Earned-time is also a thing- prisoners must work, school, or
participate in other programs that make it more likely they wont
commit crimes when they get out
o Presumptive Sentencing
Defines presumptive sentence that legislature wants imposed for a
certain crime.
One of the problems with this is presumptive sentencing statutes
tend to fall prey to political pressures
They rarely are determined by legislautres thoughtfully reading
research to decide appropriate sentences, instead its response to
legislatures competing to show the public how tough they can be
on crime
o Mandatory Sentences
Statutes require offenders serve at least a specified amount of time
in prison for particular crimes
Lots for drugs
Three Strikes law is a type of mandatory sentence
Makes lawmakers look tough

But in reality mandatory minimum sentences are easily

Often circumvented because their own rigidity can lead to
imposition of unjust sentences
o Sentencing Guidelines
Two types, 1) presumptive 2)advisory
Presumptive: sentences drafted by sentencing commission
by using a grid
Advisory: give judges more discretion than presumptive
o Serve as starting point for judge
Federal sentencing guidelines have been subject to harsh criticism
o They are based on incorrect premise that incarceration is the only form of
tough punishment
o They were also drafted without regard to available prison resources

Ch. 5- Community Based Sanctions

Community based sanctions offer a lot of advantages
o 1. Cheaper than incarceration
o 2. If offfenders are employed they can continue to work if punished within
the community, enhancing their rehabilitation prospects and the likelihood
that they will be able to pay restitution to the victims of their crimes
o 3. Economic burden on taxpayers that stems from punishment of criminal
offenders can be diminished further as offenders working within the
community pay taxes and support their families instead of having the
public support them through welfare
o 4. If offenders remain in the community, family ties can be preserved
which in turn will enhance likelihood that rehabilitative endeavors will be
o 5. Offenders can avoid the criminogenic influences that prevail in prisons
and jails, the dependency that incarceration fosters, and the psychological
harm that often comes with confinement
o 6. Crowding in jails can be alleviated or avoided making correctional
facilities safer and easier to manage and less likely to be embroiled in
Community based Sentencing Options
o Probation
One of most frequentl imposed criminal sanctions
Probation sentences can vary greatly
Intensive supervision probation can be utilized for
offenders needing more supervision, generally required to
meet w probation officers several times a week and subject
to random house visits and drugs tests, frequently required
to get substance-abuse treatment and work or go to school
Probation can be combined with incarcerative sentences


Split sentence- go to jail then get period of probation

Shock incarceration- offenders placed in boot camps,
confined for usually 3-6 months and subject to strict
discipline, physical exercise, and hard labor
Researches have found boot camps dont have lower
recidivism rates compared to community penalties or
o Boot camps lack treatment programs that help
offenders address problems that contributed to their
criminal choices
Day Reporting Centers
Centers vary in how they operate, common pattern is for offenders
to report to a center every day and write itinerary for the day and
where they will be at all times.
Staff members confirm throughout the day they are where they
said they will be
Offenders can also be required to spend a defined amount of time
at day reporting center itself- partaking in mandated educational,
counseling, or other treatment programs.
Home Confinement- Electronic Monitoring
Europe uses fines a lot
Advantageous in many ways
Frees up resources that can be used for the supervision or
incarceration of offenders for whom such supervision or
incarceration is necessary
Fines underutilized in US
US currently lacks collection and payment monitoring
systems needed to enforce these fines
Restitution, Fees, and Denial of Government Benefits
Primary purpose of restitution is to compensate victim for injuries
caused by the rime
Restitution has to be amount that they can pay, or else theres a real
risk the order will induce the offender to rob Peter to pay Paul
Another type of financial penalty is to require offenders to defray
costs of processing their cases through criminal justice system
Residential fees for offenders stayig in work-release centers
or other correctional residential facilities
Restitution collection fees,
Fees for substance abuse treatment
Probation supervision fees
Community service fees
House arrest fees
Community Service

Pay back community for harm caused

Many Advantages
But its rarely used
One of chief roadblocks to widespread imposition is lack of central
agency in many jx that would coordinate and implement
community service sentences
Comprehensive and Integrated Corrections Systems
o Needs to be structure in place to ensure that these sanctions are achieving
their objective and operating as cost-effectivlely as possible
o ABA thinks states should establish presumption that community based
sanction is the most appropriate penalty for the following types of
Those convicted of misdemeanors
Those convicted of nonviolent felonies
Those who violate a condition of their probation
Some JX have established drug courts, tailor their responses to drug violations

Chapter 6- The Death Penalty

Constitutionality in General
o Not per se unconstitutional
o Three penological objectives are arguably furthered by death penalty
Incapacitation (once people are dead, they can and will commit
no further crimes)
Racial Disparity in the Imposition of the Death Penalty
o Studies found race has bearing on likelihood of receiving penalty
Vague and Mandatory Death Penalty Statutes
o Court held death penalty statutes that mandate imposition of death
penalty are unconstitutional (violates 8th amendment)
1. It conflicts with societal standards of decent
2. Second reason for saying it violates 8th was that it left
decision whether to impose death penalty within uncurbed
discretion of the jury
3. Third reason is that it abridged right of defendants under 8th
amendment to an individualized sentencing determination in a
capital case mandatory death penalty statutes lump all first
degree murders into an amorphous mass, treating all of them as
deserving of death sentence
Right to Present Mitigating Evidence in Capital Cases
Death Sentence for Rape
o Death penalty cant be imposed
Death Sentence for Felony Murder
o Death sentence can be used RARELY for felony murder

Death Sentence for Retarded Defendents

o Ds mental retardation is a mitigating circumstance, but executing a
rere is NOW unconstitutional
o It conflicts with our evolving standards of decency
o They also are at special risk for wrongful execution because they are
more likely to confess to a crime that theyre innocent and are often
inept witnesses, and their mental deficiencies impede their ability to
assist their lawyers in preparing & presenting their defense
Death Sentence for Juveniles
o Nope
Insane Prisoners
o Cant execute insane people
Modes of Execution
o Most jx use lethal injection
o Firing squad and electric chair arent unconstitutional
o To see if a method of execution is cruel and unusual. See whether
their execution method creates untoward, readily avoidable risk of
inflicting severe and unnecessary pain
Three factors are weighed
1. Degree of risk that the execution ethod will cause
significant pain
2. The severity of this pain
3. The existence of readily available alternative that will
increase materially the likelihood that the prisoner will
not suffer pain
Policy Debate around death penalty
o Errors, innocent people being sentenced to death

Chapter 7- Cruel and Unusual punishment and NonCapital Cases