Punishment & Sentencing
After a defendant is convicted or pleads guilty, he must be sentenced. Sentencing is typically done at a separate hearing and reflects societal norms and values. The type of sentence and its magnitude represents a judgment about the wrongfulness of that act, the defendant’s liability, and the threat posed by the incident and the individual. The sentence might serve any number of goals, including deterrence, protecting the public, and retribution, among others. Sentencing is one of the most potent actions any government can take against the governed: the deprivation of status, property, liberty, and even life itself.
Below, we have identified some of the key issues that arise when determining how a defendant is sentenced and the academic literature on those issues. The research collected here addresses essential questions for those interested in exploring important questions: Why do we punish? How are sentencing decisions made? What are the consequences of U.S. sentencing law and policy?
The United States is the global incarceration leader with nearly 700 inmates for every 100,000 inhabitants and a total custodial population of around 2.3 million people, constituting almost a quarter of the world’s inmates. U.S. penal policies are the most punitive among Western nations, as measured by the probability of incarceration upon conviction and the length of incarceration. The nation’s comparatively and historically high rates of incarceration have led to what numerous commentators refer to as “mass incarceration,” which has had a disproportionate impact on particular groups, especially communities of color, which often lacks a sound justification for the level and distribution of punishment.
The research presented here discusses the rise of mass incarceration in the United States and the resulting problems.
Judges typically set sentences. Sentencing guidelines channel the exercise of their discretion in one of two ways. Some set forth a “narrative” stating the general principles of sentencing, identifying those characteristics of the offense and offender that should shape sentencing decisions, and setting out policies on the appropriate circumstances for certain types of sentences. Others employ a numerical scheme, assigning points or setting levels for particular crimes and criminal histories, with adjustments for aggravating and mitigating factors. The ability to deviate from the guidelines depends on whether the scheme is voluntary or mandatory. Each of these schemes possesses its own set of issues that call for reform.
Indeterminate sentencing refers to the practice of sentences for a range of time, such as a prison term of one to 10 years, with the actual release date determined by a body other than the court (e.g. a parole board), or to a system where the trial court has broad and perhaps unguided discretion to set punishment in a given case. In contrast, determinate sentencing typically involves a specific term of incarceration (e.g. 10 years’ imprisonment) without eligibility for early release via parole. Determinate sentencing is often used interchangeably with the phrases “definite,” “fixed,” “flat,” or “mandatory” sentencing. A mandatory sentence deprives judges of all discretion.
Mandatory minimum sentences tend to follow a basic pattern: someone who commits a given crime must be sentenced to at least the minimum prison term. Some of the best examples involve drug-related crimes. For instance, if a defendant possessed and intended to distribute 500 grams (1.1 pounds) of methamphetamine, he must be sentenced to at least 10 years’ imprisonment under the federal rules. Still other mandatory minimums focus on repeat offenders. The “three strikes” laws enacted in about half of the states and by the federal government are good examples of this kind of law. An offender must receive a life sentence or a multi-decade prison term if he has already been convicted of a specified number of specified felonies.
The research presented here discusses the types of sentencing schemes, including mandatory minimums and their resulting problems in U.S. sentencing.
Disparities in punishment may take a variety of forms, many of which flow from the discretion afforded judges. A given judge may punish inconsistently across cases; different judges within a given jurisdiction may hand down different sentences in similar cases; or judges in different jurisdictions may issue sentences which are harsher or lighter than judges in another jurisdiction. Disparities are not always illegitimate. For instance, citizens of different communities may hold distinct views on crime and punishment, leading to different sentences for similar crimes. Other types of disparities are far harder to justify. The most troubling disparities stem from the influence of illegitimate considerations such as race or ethnicity.
The research presented here discusses the problem of disparities, particularly racial disparities, in U.S. sentencing.
Not everyone convicted of a crime is sent to prison. However, alternative punishments can also have serious consequences. Such punishments often place serious demands on offenders and impose intensive court and community supervision. That said, alternatives to incarceration can repair harms suffered by victims, provide benefits to the community, treat the drug-addicted or mentally ill, and rehabilitate offenders. Having these alternative options can also reduce prison and jail costs and prevent additional crimes in the future.
The research presented here discusses the types of alternatives to sentencing and how they can be used to reform the criminal justice system.
Each year, the United States locks up hundreds of thousands of people. As public sentiment about appropriate sentencing changes, or as prisoners rehabilitate themselves or no longer pose a risk to public safety, there is no good mechanism to reconsider or alter the sentence. A number of jurisdictions are exploring new mechanisms to safely reduce sentences when circumstances warrant doing so. Second look sentencing allows courts to reevaluate a person’s sentence after significant time served in prison to determine whether the sentence still makes sense or is in the interest of justice.
The research presented here discusses the second look sentencing, and how it can be used to reform the criminal justice system.
Experts and Affiliates on Punishment & Sentencing
Professor of Law and Deputy Director - Academy for Justice
Arizona State University
Douglas A. Berman
Robert J. Watkins/Procter & Gamble Professor of Law and Executive Director of the Drug Enforcement and Policy Center
The Ohio State University
Beth A. Colgan
Professor of Law
University of California, Los Angeles
Brandon L. Garrett
L. Neil Williams, Jr. Professor of Law and Faculty Director of the Center for Science and Justice
Nancy J. King
Lee S. & Charles A. Speir Professor of Law
Amelia D. Lewis Professor of Constitutional and Criminal Law and Founder and Director - Academy for Justice
Arizona State University
John S. Shannon Distinguished Professor of Law, Joel B. Piassick Research Professor of Law, Professor of Psychology, and Professor of Psychiatry and Neurobehavioral Sciences
University of Virginia
Wade H. and Dores M. McCree Collegiate Professor of Law
University of Michigan
Visiting Assistant Professor and Associate Deputy Director - Academy for Justice
Arizona State University
Milton Underwood Professor of Law, Affiliate Professor of Psychiatry, and Director of the Criminal Justice Program
Stephen F. Smith
Professor of Law
University of Notre Dame
Edwin E. Huddleson, Jr. Professor of Law and Faculty Director of the Stanford Criminal Justice Center
Ronald F. Wright
Needham Y. Gulley Professor of Criminal Law
Wake Forest University