Question One: Four Modern Sentencing Options
Sentences are punishments for convicted defendants. The prescription of punishments for crimes is found in both federal and state statutes. There are four traditional sanctions that can be imposed in the modern criminal justice system are; the death penalty, imprisonment, probation, and fines. They are discussed in the ensuing sections.
Death Penalty, this is the most extreme sentence option. In the United States, 38 states have laws that can impose capital punishment. Majority of these states use lethal injection while some use electrocution to end the life of the accused. The death penalty is usually reserved for very serious crimes like first-degree murder under aggravating circumstances.
Imprisonment, most state laws require the judges to impose determinate prison sentences, whilst others require the judge to give indeterminate sentences, which leaves the time for releasing the offender in the hands of the prison officials. Most crimes that would attract this sanction are felonies like armed robbery, and burglary.
Probation, this is the most frequently used criminal sanction. It is a sentence that an offender serves in the community in lieu of incarceration. Probationers should adhere to conditions set out in the probation, such as obeying the law, paying fines and restitution. Any violation of the terms in the probation may lead to arrest and incarceration. Probation is the preferred sentence when the crime or offence is nonviolent, and the convict is not a repeat offender.
Fines, these are common for first time offenders convicted of crimes such as shoplifting, minor drug possession, and traffic violations. In more serious offences, judges can impose fines alongside imprisonment. In most instances if the fine is not paid, the offender will go to jail. The essence in most cases is to deprive the offender of the proceeds of the crime.
Question Two: Structured Sentencing Model
This is a model of criminal punishment that includes determinate and commission-creative presumptive sentencing schemes. It also includes voluntary sentencing guidelines. These guidelines are recommendations or policies that do not have anchorage in law. In determinate sentencing, the offender is given a fixed term that may be reduced upon a demonstration of good time or gain time. Indeterminate sentencing, on the other hand, is a model of criminal punishment that encourages rehabilitation through the use of general and relatively unspecific sentences. Within the states that allow for indeterminate sentences, the judges are only allowed to pass sentences within the confines of the law, however, their release is more often allowed to the prison’s discretion.
There are several factors that are put into consideration before such a sentence is passed. These will mostly include; the motive of the accused, the intended harm, the victim contribution, the damage inflicted, the offender’s mental state, the likelihood of a successful rehabilitation, and the offender’s contribution. But there has been a lot of criticism directed at this approach to sentencing. Due to its case-specific approach, it results to inequality in sentencing because offences that are supposedly similar may attract different jail terms. On the hand, the judge’s personality may be a factor to the sentencing; a situation that may put the criminal justice system on uncertainty. Others have also criticized the dishonesty that comes from a sentencing pegged on offender cooperation. This is usually done by deducting the amount of time to be served in prison on a given sentence based on other extenuating factors.
Presumptive sentencing is also another model of criminal punishment that has to meet certain conditions. Within this framework, a sentencing commission develops a range of sentences which the judges have to follow or provide written reasons for departure. Such departures may be reviewed by an appellate review to determine.
Question Three: Goals of Restoration and Rehabilitation
Restoration is a sentencing goal that builds on community participation and restorative practices in an attempt to make the victim a better person again while rehabilitation on the other hand, is an attempt to reform the criminal offender. This by extension refers to that state of mind of the offender that demonstrates remorse and a future ability to avoid committing the offence. While rehabilitation has been one of the goals of the criminal justice system for so long, its effectiveness has always been in doubt until recent years.
The difference between retributive and restorative justice goals lies in their definition and process action. Rehabilitation assumes that criminal behavior can be dissuaded away from offenders by non-punitive methods. While this goal is about helping the offender to shun criminality, it normally goes on alongside incarceration. The offender may be counseled or put through mental health programs, substance abuse counselling, education and professional trainings. In some instances, a judge may sentence someone to attend rehabilitative programs as part of probation or it may be included in a stipulation of the plea bargain. The fundamental rationale for rehabilitation is the notion that criminal conduct would come from those who are flawed, often not through a fault of their own. Issues such as poverty, mental health, childhood trauma have been identified as triggers of criminality, thus a cure from these may alleviate recidivism. Offences that can attract rehabilitation include theft, aggravated assault or other violent crimes. Restorative justice is a theory that emphasizes repairing the harm caused or revealed by unjust behavior. Restoration is best accomplished through inclusive and cooperative processes. This model is usually applicable in criminal offences that are non-violent. They could be damages occasioned to goods, assault or loss of property. This strategy is applicable not only in criminal law but also in enforcement of regulations in school, workplaces.
Question Four: The Role of the Victim in the Criminal Justice System
For almost five decades now, the role of the victim in the criminal justice system has undergone tremendous transformation. From a position of obscurity in the justice process, the victims have now been moved into the fray making the previously two persons’ duel to become a triangulation of interests. While in some jurisdictions the victims have had their rights to be involved in the trial process put in law, some have tried to incorporate their sentiments through the Victim Impact Statements.
The need to incorporate the victim in the trial process picked pace in the 1970s through the Victim’s Rights Movement. The sentencing process now includes considerations of the victim’s need. The passage of the Crime Victims’ Rights Act (CVRA) in 2004 ushered in this new era. Through this Act, the victims have the following rights under federal laws; to be reasonably protected from the accused, to be given timely notices as to any proceedings, to be included in the proceedings, to be reasonably heard in the proceedings, to confer with the federal prosecutor, right to a full and timely restitution, to proceedings free from unreasonable delays, and to be treated with fairness and respect. The increasing number of states that have enacted legislations towards victim involvement is a positive indication that the victims have a role to play. However, there has criticism towards the CVRA. Daniella Levine’s thoughtful piece has espoused some of the procedural challenges in victim involvement. But criticism notwithstanding, there are some gain to be made. Properly understood, crime victim’s right will not hinder the functioning of the CJS, because it will form part of the checks and balances required in order to meet the goals of the system. A good example would be during plea bargain, where they can highlight the potential defects in the agreement. There is also a possibility of therapeutic healing when the victim is allowed to voice their opinions particularly at sentencing.
Question Five: The Courts and the Death Penalty
As at 1 April 2008, death penalty was authorized in 38 states, the Federal Government, and the US Military. Those jurisdictions that have not enacted the death penalty include 13 states, and the District of Columbia. Some of the landmark cases that have been about the death penalty are discussed in the ensuing section.
William Henry Furman v State of Georgia, 408 U.S. 238 (1972)
This was a United State Supreme Court decision that ruled on the requirement for a degree of consistency in the application of the death penalty to avoid inconsistency with the Constitution. Furman had been tried and found guilty for murder, based mostly on his statements but the sentence was never carried. The court ruled that Georgia’s death penalty statute allowed a jury unguided discretion, making it arbitrary and capricious. At its closure, there was a moratorium on capital punishment throughout the United States for about five years.
Troy Leon Gregg v State of Georgia, 428 U.S. 153 (1976)
About five years after the ruling on Furman v Georgia, the United State Supreme Court ruled that a two stage procedural requirement was necessary for the elimination of arbitrariness. Moreover, the court stated that the imposition of the death penalty is not an automatic violation of the Eighth and Fourteenth Amendment. The holding further stated that if the jury is furnished with standards to direct and limit the sentencing discretion, and the jury’s decision is subjected to meaningful review, then the death penalty may be constitutional. If however, the death penalty is mandatory, such that there is no provision for mercy based on the characteristics of the offender, then it is unconstitutional. The defendants in this case were seeking to have the death sentence declared as unusual and cruel punishment after they had been found guilty and the death sentence passed by the different state courts.
References
Herminda, J. (2010). Criminal Law. Toronto: Kluwer Law International.
Herring, J. (2011). Criminal Law. New York: Palgrave Macmillan.
Samaha, D. (2010). Criminal Law. New York: Cengage Learning.
Schmalleger, F. (2013). Criminal Justice: A Brief Introduction. New York: Pearson Education.
