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Wednesday, July 31, 2019
Criminal Sentencing Essay
A basic question in criminal sentencing is â€Å"What are the purposes of criminal sentencing?† Scholars, too, reflect on the purposes of punishment. There are commonly four identified purposes: Retribution. The oldest but considered the most important purpose for sentencing is retribution, that is, inflicting on an offender suffering comparable to that caused by the offense. An act of social vengeance, retribution is grounded in a view of society as a system of moral balance. When criminality upsets this balance, punishment exacted in comparable measure restores the moral order, as suggested in the biblical dictum â€Å"An eye for an eye.†While contemporary critics of retribution sometimes charge that this policy lacks the force to reform the offender, it still remains a strong justification for punishment. A second purpose for sentencing, deterrence amounts to the attempt to discourage criminality through punishment. Initially, deterrence arose as the banner of reformers seeking to end what they saw as excessive punishments based on retribution. Critics asked, â€Å"Why put someone to death for stealing if that crime could be discouraged with a prison sentence?† As the concept of deterrence in sentencing gained widespread acceptance, execution and physical mutilation of criminals were gradually replaced by milder forms of punishment such as imprisonment.                       There are two types of deterrence, specific deterrence demonstrates to the  individual offender that crime does not pay while in general deterrence, the punishment of one person serves as an example to others. Rehabilitation. The third purpose for sentencing, rehabilitation, involves reforming the offender to preclude subsequent offenses. It resembles deterrence by motivating the offender to conform. But rehabilitation emphasizes constructive improvement while deterrence and retribution make the offender suffer. In addition, while retribution demands that the punishment fit the crime, rehabilitation focuses on the distinctive problems of each offender. Thus identical offenses would call for similar acts of retribution but different programs of rehabilitation. Social protection. A final purpose for sentencing is social protection, or rendering an offender incapable of further offenses either temporarily through incarceration or permanently by execution. Like deterrence, social protection is a rational approach to punishment and seeks to protect society from crime.                The different forms of sentencing used in different jurisdictions include institutional sanctionsâ€â€time to be served in prison or jail; and noninstitutional sanctionsâ€â€fines and forfeiture of the proceeds of crime, and service of the sentence in the community in the form of probation or parole. Recently the arsenal of punishments has been considerably enlarged by the creation of mixed sanctions and alternatives to either institutional or noninstitutional sanctions. The following are the variety of options for sentencing: Death penalty. In thirty-six states (as well as the federal courts), courts may impose a sentence of death for any offense designated a capital crime, for example, first-degree murder. Incarceration. The defendant may be sentenced to serve a term in a local jail, state prison, or federal prison. Probation. The defendant may be sentenced to a period of probationary supervision                within the community. Split sentence. A judge may split the sentence between a period of incarceration and a period of probation. Restitution. An offender may be required to provide financial reimbursement to cover the cost of a victim’s losses. Community service. An offender may be required to spend a period of time performing public service work. Fine. An offender may be required to pay a certain sum of money as a penalty and/or as an alternative to or in conjunction with incarceration. This leads us to the next question, â€Å"What are some reforms that have been proposed? A recent reform growing out of the victims’ rights movement in the sentencing process is the consideration of statements by the victim, known as â€Å"victim impact statements†(VIS). Twenty-six states have mandated the use of VIS in criminal cases, while another twenty-two states have adopted so-called â€Å"victim bills of rights†that include recognition of the right of a victim to present a VIS. In the VIS, the victim provides a statement about the extent of economic, physical, or psychological harm suffered as a result of the victimization. The victim also can make a recommendation about the type of sentence an offender should receive. Usually the VIS is incorporated into the pre-sentence investigation report written by the probation officer. Research has revealed that a judge’s choice of a sentence is influenced much more by legal considerations than by victim preferences in cases where VIS has been presented (McGarrell, 1999). The third reform proposal is â€Å"restorative justice.†Restorative justice has been a feature of justice systems for a long time, though it was little used until a group of criminologists in the United States and the Commonwealth countries brought the idea back to life. The term restorative justice was virtually unknown a decade ago, and it is still in search of a commonly accepted meaning. Yet, the literature related to this subject has grown rapidly, so that we venture to define it in terms offered by Howard Zehr, published in a symposium of The Justice Professional, entitled â€Å"Criminology as Peacemaking.†Zehr provides contrasting paradigms between the traditional, retributive sense of justice and the newly emerging (or reemerging) restorative sense of justice.            If the proposed reform of restorative justice were adopted, where would that leave us with respect to the traditional â€Å"aims†or â€Å"justifications†of criminal justice? As to retribution (or just desserts), we would still be limited to never imposing an obligation (sanction) that outweighs the harm done. As to incapacitation, even the staunchest advocates of restorative justice recognize that some offenders are far too dangerous to be returned to the community and that their separation from the community is necessary. But the prison population could be vastly reduced. As to resocialization or rehabilitation, the very idea is built into restorative justice, which aims at   restoring the community. Some of the current issues in federal sentencing according to the U.S. Sentencing Commission at https://www.ussc.gov. are the following: The issue on the amendment pertaining to offenses involving cocaine base (â€Å"crack†) and the amendment pertaining to certain criminal history rules, see 72 FR 28558 (May  21, 2007); 72 FR 51882 (September 11, 2007), should be applied retroactively to previously sentenced defendants. The issue of the Judicial Conference of the United States, the and the United States Sentencing Commission has decided to establish a standing victim’s advisory group pursuant to  28 U.S.C.  § 995 and Rule 5.4 of the Commission’s Rules of Practice and Procedure. It was stated that the purpose of the advisory group is (1) to assist the Commission in carrying out its statutory responsibilities under 28 U.S.C.  § 994(o); (2) to provide the Commission its views on the Commission’s activities as they relate to victims of crime; (3) to  disseminate information regarding sentencing issues to organizations represented by the   advisory group and to other victims of crime and victims advocacy groups, as appropriate; and (4) to perform any other functions related to victims of crime as the Commission requests. The victims’ advisory group will consist of not more than 9 members, each of whom may serve not more than two consecutive 3-year terms. The issue on New York’s Rockefeller laws to curb the drug trade – which directly contributed to a dramatic increase in the state’s prison population costing the state millions of dollars, but failing to impact drug trafficking. According to a New York  Times editorial, â€Å"New York has made incremental changes to the Rockefeller laws in recent years, but has stopped short of restoring judicial discretion.†A governor-appointed commission charged with studying state sentencing practices, however, has produced a report calling for the end of â€Å"indeterminate sentencing†– the process by which a judge imposes a minimum and a maximum sentence and the Parole Board decides when to release an offender. It further suggests that nonviolent offenders be considered for community-based treatment instead of prison. Finally, Gov. Elliot Spitzer’s commission recommends restoring prison-based educational and training programs as a means of helping to lower recidivism rates. The website of the Sentencing Project at http://www.sentencingproject.org. mission is to promote reforms in sentencing law and practice, and alternatives to incarceration through their advocacy and research. Moreover, the Sentencing Project provides defense lawyers with sentencing advocacy training and to reduce the reliance on incarceration. Hence, the Sentencing Project has become the leader in the effort to bring national attention to disturbing trends and inequities in the criminal justice system with a successful formula that includes the publication of groundbreaking research, aggressive media campaigns and strategic advocacy for policy reform. As a result of The Sentencing Project’s research, publications and advocacy, many people know that this country is the world’s leader in incarceration, that one in three young black men is under control of the criminal justice system, that five million Americans can’t vote because of felony convictions, and that thousands of women and children have lost welfare, education and housing benefits as the result of convictions for minor drug offenses. Thus, the Sentencing Project is dedicated to changing the way Americans think about crime and punishment which coincide with the interests of the National Association of Sentencing Advocates. References            McGarrell, E.F. Restorative Justice Conferences. Indianapolis, IN: Hudson Institute, 1999; Edmund F. McGarrell, â€Å"Cutting Crime through Police-Citizen Cooperation,†American Outlook, Spring 1998, pp. 65–67. The Sentencing Project at http://www.sentencingproject.org. U.S. Sentencing Commission Available at https://www.ussc.gov. Zehr, H.  â€Å"Justice as Restoration, Justice as Respect,†The Justice Professional 11,    nos. 1–2 (1998), pp. 71–87.
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