Sentencing refers to a sanction or punishment imposed for the conviction of a criminal act. Sentencing decisions are generally made by the presiding judge and can take place in federal, state, or local courts. There are typically two types of sentences that can be imposed: custodial and noncustodial sentences. Each type of sentence can vary greatly, depending on many legal and extralegal factors. Since the 1970s, guidelines and reforms have been implemented to reduce judicial discretion and disparities in sentencing. This article focuses on sentencing in the United States.
Sentencing Philosophies
Many common philosophies exist regarding the purpose of sentencing an individual for a crime that he or she committed. These philosophies range from attempting to change the behavior of the specific criminal before and after a crime was committed, to outright punishment for engaging in crime. Sentencing philosophies include retribution, incapacitation, rehabilitation, and deterrence.
Retribution refers to punishing an individual based on the crime that he/she committed. The sentence imposed under this philosophy must be proportionate to the crime that was committed. Retribution serves no greater purpose than to punish an individual for committing a crime.
Incapacitation is used as a sentencing philosophy to restrict an individual’s ability to engage in crime by incapacitating the individual. Incapacitation can be used to protect the greater good of society.
Rehabilitation is guided by the notion that an individual should only receive enough punishment to alter the individual’s future behavior. Rehabilitation as a sentencing philosophy is tailored to a component of individualized justice.
Deterrence is used to discourage the individual from engaging in future crime with fear of future punishments. Deterrence is also used to dissuade the general public from engaging in criminal behavior through fear of likely penalties or sanctions that would be imposed if caught committing a crime.
Types of Sentences
A sentence for the violation of a criminal code can be custodial and/or noncustodial. Custodial sentences are punishments that require that the defendant be remanded to prison, jail, or some other types of closed institution where the defendant will remain for the duration of the sentence. With some exceptions, misdemeanor charges can result in a jail sentence of up to 1 year, while felony charges result in prison sentences of longer than 1 year. Noncustodial sentences include probation, suspended execution/imposition of sentence, and fines. In some instances, defendants may receive a sentence that includes both custodial and noncustodial components. For instance, a defendant may receive a jail sentence and a fine or a short jail sentence followed by a term of probation. The type of sentence imposed can vary greatly based on legal factors, such as crime severity and defendant’s prior record, as well as extralegal factors, such as the defendant’s age.
Sentencing Systems
Two main systems can account for the structure of sentencing policies in the United States, each of which is based on a different theoretical approach about the purpose of punishment. The two systems include indeterminate and determinate sentencing. Until the mid-1970s, most states followed the indeterminate approach. Indeterminate sentencing systems are rooted in the notion of rehabilitation and individualized justice, leaving the time that will actually be served on the sentence to the discretion of judges and parole boards. In this approach, judges have great discretion on the sentence length handed down, so long as the upper limit of the sentence does not violate previously established maximum penalties. For example, a judge may impose a sentence of 2–8 years for a defendant charged with a felony that has a maximum penalty of 10 years. The time then served on the sentence is at the discretion of a parole board. A parole board may deem the defendant rehabilitated after 2 years but can also deny release and make a defendant remain incapacitated until the upper limit of their sentence has been served. Since the 1970s, indeterminate sentencing has been criticized for being applied indiscriminately, leading to disparities in sentencing as a result.
During the 1970s, backlash about the effectiveness of indeterminate sentencing and criticism about the ability of prisons to rehabilitate offenders led many states to abandon indeterminate sentencing systems for determinate, or fixed, sentencing schemes. Determinate sentencing systems eliminated parole boards and placed the decision of sentence lengths entirely at the control of judges. A sentence that is set at 12 years would have to be served out entirely, minus any good time credits. Under the determinate sentencing approach, the purpose of punishment shifts from rehabilitation and is placed on the notion of incapacitation. Sentencing under this scheme is more about holding and punishing offenders, rather than treating prisoners to reduce future criminal behavior. A major criticism of determinate sentencing systems is the lack of motivation it provided for inmates to improve themselves. Since rehabilitation was no longer the guiding philosophy behind sentencing, inmates who tried to improve themselves through education or training, for example, would spend the same amount of time incarcerated as those who did nothing to improve themselves. A second criticism of determinate sentencing laws is the inability of the criminal justice system to oversee the behavior of offenders once they are released, since parole is no longer an option.
Sentencing Guidelines
The vast amount of discretion held by judges and parole boards under the indeterminate and determinate sentencing systems led many states in the early 1980s to establish sentencing guidelines to limit discretion and disparities. Many of these guidelines are outlined by state-sponsored sentencing commissions. Although there was a push for all states to establish permanent sentencing commissions, only about half did so and many have been dismantled. As of 2007, there were 17 permanent sentencing commissions in the United States. Sentencing commissions are made up of many actors of the criminal justice system, such as prosecutors, judges, and defense attorneys. The primary purpose of sentencing commissions is to draft sentencing guidelines, publish related reports, and amend any sentencing guidelines as needed.
Following the role of some states, the U.S. Congress passed the Sentencing Reform Act in 1984, which went into effect on November 1, 1987, that established federal sentencing guidelines. Sentencing guidelines do not entirely remove discretion from the judges but provide a much more narrow range of possible sanctions for a crime. Sentencing guidelines rely on the current charge that a defendant is facing, in combination with the defendant’s criminal history. Based on these two components, guidelines would provide judges with an acceptable sentence range to be imposed. When judges depart from the established sentencing guidelines, they are required to provide justification for the departure.
In 2005, two Supreme Court decisions changed the way that sentencing guidelines could be implemented. United States v. Booker and United States v. Fanfan both challenged the factors that judges could take into account when making sentencing decisions. The U.S. Supreme Court ruled that sentencing guidelines could act as a recommendation template for judges, but that guidelines could not be used to definitively restrict criminal sentences. Both decisions were meant to reduce disparity in sentencing but have been found to have the opposite effect and led to increased disparities based on the offender’s characteristics.
Other Sentencing Systems
Sentencing in the United States has also been influenced by other sentencing schemes, including mandatory minimum sentencing and habitual offender legislation. Mandatory minimum sentences impose a fixed penalty, target specific crimes, and do not allow judges to take into account mitigating factors when deciding punishments. As of 2010, there were over 195 federal offenses that had mandatory minimum sentences. While mandatory minimum sentences apply to a wide range of crimes, they are more commonly associated with sentences for drug crimes. For example, the Fair Sentencing Act that was passed in 2010 imposed an 18:1 differential for powder cocaine and crack. This means that the sentence for having 1 gram of crack will be equivalent to being charged with possession of 18 grams of powder cocaine.
Habitual offender sentencing laws target defendants who are charged with similar crimes on multiple occasions. Habitual offender laws allow judges to hand down increased sanctions each time the defendant is sentenced. Three-strikes legislation is an often-imposed type of habitual offender law. Three strikes was initially implemented in Washington in 1993 and was adopted in 24 other states within the next year. Three strikes laws are meant to provide long-term sentences for individuals charged with a third violent or serious felony.
There are widely held criticisms regarding mandatory minimum sentences and habitual offender legislation. The design of the policies still allows for a great deal of discretion by both judges and prosecutors, leading to differential treatment of offenders charged with similar crimes. Prosecutors may choose to reduce the charge of the crime to bypass the legislation or to coerce a guilty plea. Another criticism is the fact that these sentencing policies may lead to relatively low-level offenders, who pose little risk of reoffending, being incarcerated for prolonged periods of time. In general, mandatory minimum sentencing and habitual offender laws have been applied inconsistently and have led to sentencing disparities.
Results of Sentencing Policies
The aftermath of the shifts in sentencing policies in the United States has led to several consequences that affect society. One of the major costs of sentencing policies is the growth in incarceration rates in the United States. Sentencing policies were enacted as a response to the rise in violent crime experienced throughout the 1970s and 1980s, leading to more defendants being incarcerated. Despite the decline in violent crime during the 1990s, more punitive sentencing policies were continued to be implemented and enforced. This has resulted in an incarceration rate much higher than any other developed nation. In 2016, prisons in the United States held more than 655 inmates per 100,000 people. Sentencing policies have further resulted in inmates being incarcerated for much longer periods, leading to an aging process in U.S. prisons. Habitual offender laws, for instance, have resulted in low-risk elderly offenders to be required to remain in prison, despite the decreased likelihood of recidivism.
Another result of sentencing policies that afforded great discretion to judges and prosecutors at the charging and sentencing phases of criminal case processes has led to pronounced disparities in the application of sentencing. Many of the sentencing policies that have been implemented in the United States are tied to specific crimes, which are generally highly correlated with race. It is argued that even when taking into account criminal involvement and many other legal factors, racial minorities are much more likely to be sentenced to prison and to receive longer sentences.
References:
- Kutateladze, B. L., Andiloro, N. R., Johnson, B. D., & Spohn, C. C. (2014). Cumulative disadvantage: Examining racial and ethnic disparity in prosecution and sentencing. Criminology, 52(3), 514–551. Retrieved from https://doi.org/10.1111/1745-9125.12047
- Reitz, K. R. (2007). Sentencing. In J. Q. Wilson & J. Petersilia (Eds.), Crime and public policy (pp. 467–498). New York, NY: Oxford University Press.
- Stemen, D., Rengifo, A., & Wilson, J. (2005). Of fragmentation and ferment: The impact of state sentencing policies on incarceration rates, 1975–2002. Vera Institute of Justice. New York
- Sutton, J. R. (2013). Structural bias in the sentencing of felony defendants. Social Science Research, 42(5), 1207–1221. doi:10.1016/j.ssresearch.2013.04.003
- Tonry, M. (1996). Sentencing matters. New York, NY: Oxford University Press.
- United States Sentencing Commission. (2005). United States Sentencing Commission Guidelines Manual. Government Printing Office. Washington, DC
Court Cases
- United States v. Booker, 543 U.S. 220 (2005)
- United States v. Fanfan, No. 05-1953 (1st Cir., 2006)