In Chapter 2, we learned how substantive criminal laws define what behaviors are crimes; the same laws also stipulate the permissible punishments for different crimes. All three branches of government impact criminal punishment. One of the most important duties of a judge is to impose a sentence, which means determining the appropriate punishment for an offender upon conviction. Thus, punishing offenders is a judicial function. At the same time, because of a trend toward mandatory sentencing (discussed in the following chapters), much of the discretion in sentencing has been removed from judges and placed on the prosecutors who decide the charges a defendant will face. As such, punishing offenders may rightly be considered an executive function. Finally, the lengths of sentences and types of punishment that attach to the various crimes is a product of the legislative process. In the last 30 years, through ballot measures, propositions, referendum, and initiatives, the people (the general public through voting) have also played a large role in deciding the types and lengths of punishment.
Criminal sentences ranges widely – from confinement sanctions (ex. incarceration in prisons and jails), community sanctions (ex. probation), monetary sanctions (ex. fines), physical sanctions (ex. capital punishment) and civil sanctions (ex. civil commitment for violent sexual incarceration in boot camps). Different kinds of sentences, and sentencing mechanisms, typically align to different sentencing or punishment philosophies. Throughout this chapter, we should consider what kind of sentencing/punishment philosophy – or understanding of offenders, their offense, and the purpose of punishment – is expressed through different types of sentencing. There are 5 broad philosophies, which often operate concurrently in a given sentence:
- Retribution – sentences that seek to impose suffering on the defendant, as compensation for the suffering they have caused
- Incapacitation – sentences that seek to prevent a specific offender from re-offending, by imposing practical limitations on their movement or body.
- Rehabilitation – sentences that seek to address and “fix” aspects of the offender that contributed to their criminality
- Deterrence – sentences that seek to prevent other from offending, by threatening a severe a punishment if caught
- Restoration – sentences that attempt to reconcile the offender, victim, and larger community through practices that emphasize mutual healing
As noted above, one sentence, or sentencing actor, might combine many of the above philosophies. Consider an individual sentenced to 25 years in prison for second-degree homicide. Facing a quarter-century of incarceration is certain to cause the offender suffering, and that period of confinement will also prevent them from harming others outside the prison (incapacitation). While incarcerated, the offender may be offered extensive counseling, treatment for mental illness or substance use disorders, and educational or vocational training – all methods of rehabilitation. Moreover, those who learn of this severe sentence may be effectively deterred from committing a similar crime. Sentences of incarceration are not known for promoting restorative justice – although there are some exceptions (see the news story below.) Although people question the efficacy of prison, regarding it as little more than a factory for producing future criminals, incarceration can protect society from dangerous offenders. In other words, it is, by definition, effective at incapacitation, but studies show that is it much less effective at rehabilitation. In fact, serving time in prison often reinforces criminal risk factors.
The next four sections will explore 4 different kinds of sentencing mechanism: indeterminate, determinate, sentencing guidelines, and mandatory minimums/sentencing enhancements. State and federal approaches to sentencing have shifted in response to prevailing criminal justice thinking and philosophies, with criminal codes often incorporating more than one single approach. These approaches endorse a spectrum of judicial discretion. Indeterminate sentences, at one end, are those that allow judges and parole boards the most discretion and authority. Determinate sentences, at the other end, allow little or no discretion. Currently, most states are following determinate sentencing coupled with sentencing guidelines, mandatory minimums and other sentencing enhancements.
Restorative Justice After Homicide
In 2010, 19-year-old Conor McBride shot and killed his girlfriend of three years, 19-year-old Ann Margaret Grosmaire, during an argument. Facing the death of their only child, the Grosmaires made an unprecedented decision – to forgive Conor, with conditions that led to his personal improvement, and made the community stronger. In a joint negotiation with a local prosecutor, the Grosmaires agreed to a sentence of 20 years, plus probation, for Conor.
Read more about this remarkable process here. You can also watch a PSA on teen dating violence, made by Conor, and sponsored by the Florida Restorative Justice Association, below.