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The post-conviction stage of the criminal justice process, in which the defendant is brought before the court for the imposition of a penalty.If a defendant is convicted in a criminal prosecution, the event that follows the verdict is called sentencing. A sentence is the penalty ordered by the court. Generally, the primary goals of sentencing are punishment, deterrence, incapacitation, and rehabilitation. In some states, juries may be entitled to pronounce sentence, but in most states, and in federal court, sentencing is performed by a judge.
For serious crimes, sentencing is usually pronounced at a sentencing hearing, where the prosecutor and the defendant present their arguments regarding the penalty. For violations and other minor charges, sentencing is either predetermined or pronounced immediately after conviction.
Sentencing in the United States has undergone several dramatic transformations. In the eighteenth century, the sentencing of criminal defendants was left to juries. If a defendant was convicted, the jury decided the facts that would affect sentencing, and a predetermined sentence was imposed based on those findings. In the late eighteenth century, legislatures began to prescribe imprisonment as punishment, replacing such punishments as public whipping and confinement in stocks.
Beginning in the late nineteenth century, legislatures began to pass statutes that left sentencing to the discretion of judges. This movement toward indeterminate sentencing allowed judges to order a sentence tailored to the needs of both the defendant and society. Under sentencing statutes, a sentence could be any combination of Probation, fines, restitution (repayment to victims), imprisonment, and community service. Judges were allowed to consider a wide range of evidence in fashioning a sentence, including Mitigating Circumstances.
In the 1950s, Congress passed a spate of federal legislation requiring that judges impose mandatory minimum sentences for drug offenses. These laws directed that defendants must serve a minimum number of years in prison upon conviction for certain offenses, and prevented judges from reducing sentences in consideration of mitigating factors. In the 1960s, these laws came under attack for failing to deter drug crimes. Moreover, prosecutors were reluctant to prosecute mandatory minimum cases because they were considered unjustly severe.
By the late 1970s, indeterminate sentencing had fallen into disfavor. Many perceived that crime rates were soaring, and a powerful lobby emerged demanding sentencing reform. These critics argued for longer prison sentences, and they also pushed for uniformity in sentencing, noting that discretionary sentencing produced widely various sentences for the same crime.
Several states' legislatures enacted sentencing guidelines in the 1970s and early 1980s. These guidelines increased punishment for criminal offenses and limited judicial discretion in sentencing by identifying the punishment required upon conviction for a particular offense. Under many of the new sentencing statutes, Parole for prison inmates was either abolished or restricted to certain offenses. Conservatives hailed this "truth-in-sentencing" framework as a victory over liberal judges. Liberals endorsed sentencing reform because it purported to eliminate the possibility of racial disparity in sentencing.
Following the lead of these state legislatures, Congress passed the Sentencing Reform Act of 1984 (SRA) (Pub. L. No. 98-473, 98 Stat. 1987  [codified in 18 U.S.C.A. §§ 3551–3556 (1988 & Supp. V 1993)]). The SRA abolished parole for federal prisoners and reduced the amount of time off granted for good behavior.
The SRA also established the U.S. Sentencing Commission (USSC) and directed it to create a new sentencing system (28 U.S.C.A. §§ 991(b), 994(a)(1)-(2) ). Between 1984 and 1987, the USSC crafted the Federal Sentencing Guidelines. Since Congress did not object to the guidelines, they became effective on November 1, 1987 (28 U.S.C.A. § 994 [1988 & Supp. V 1993]).
The Federal Sentencing Guidelines shift the focus in sentencing from the offender to the offense. The guidelines categorize offenses and identify the sentence required upon conviction. Judges are allowed to increase or decrease sentences or depart from the guidelines, but only if they have a very good explanation and clearly state the reasons on the record.
Upward departures, or increases in sentences, are easy to achieve under section 1B1.2 of the sentencing guidelines. This section allows the sentencing judge to consider all "relevant conduct," including the circumstances surrounding the conviction, offenses that were committed at the same time as the charged offense but were not charged, prior convictions, and acts for which the defendant was previously tried but acquitted.In limited circumstances, judges may decrease a sentence. For example, a judge may downwardly depart if the defendant accepts responsibility for the crime or committed the crime to avoid a more serious offense. Prosecutors often challenge decreased sentences on appeal, and they usually win because the guidelines call for adherence in all but exceptional cases.
Prosecutors receive tremendous discretion in the sentencing process, and they have virtually taken over the sentencing process in federal court. Under the guidelines, prosecutors can easily increase or decrease a sentence by tinkering with the number of counts either in the initial charge or pursuant to a plea agreement. For example, a prosecutor may not use evidence of certain conduct in pursuing a criminal charge. However, upon conviction or a guilty plea, the prosecutor can, in the sentencing hearing, introduce that evidence to increase the defendant's sentence. At this point, if the prosecutor is able to prove by a preponderance of the evidence that the defendant committed the acts, the court is obliged to increase the defendant's sentence.
Furthermore, state police officers and prosecutors can make secret decisions about what cases to refer to federal prosecutors. State prosecutors can thus pressure defendants to enter a guilty plea in state court to avoid federal sentencing. The decision on whether to move the court for a downward departure in exchange for substantial assistance to law enforcement is also left to the prosecutor.
At first, many federal judges refused to recognize the Federal Sentencing Guidelines. In Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989), the U.S. Supreme Court held that the guidelines did not violate the separation-of-powers doctrine and were not an excessive delegation of legislative power. Since the Mistretta decision, federal courts have abandoned the indeterminate approach to sentencing and have used the sentencing guidelines to determine criminal sentences.
As part of the Comprehensive crime control act of 1984 (Pub. L. No. 98-473, Title II, October 12, 1984, 98 Stat. 1976 to 2193), Congress passed legislation requiring mandatory minimum sentences for drug and firearm offenses (Pub. L. No. 98-473, §§ 503(a), 1005(a), 98 Stat. 2069, 2138  [amending 21 U.S.C.A. § 860 (formerly § 845a), 18 U.S.C.A. § 924(c)]). In 1986, as public fears of drug abuse increased, Congress enacted the Anti-Drug Abuse Act of 1986 (Pub. L. No. 99-570, 100 Stat. 3207 ). This act created mandatory minimum sentences for drug trafficking and distribution, using the quantity of the drug involved to determine the minimum terms of imprisonment. In 1988, Congress broadened the mandatory minimums to cover conspiracy in certain drug offenses (Anti-Drug Abuse Act of 1988 [Pub. L. No. 100-690, § 6470(a), 102 Stat. 4377 (21 U.S.C.A. §§ 846, 963 )]).
The 1988 act also established a minimum sentence for simple possession of crack cocaine. Under 21 U.S.C.A. § 844(a) (1988 & Supp. II 1990 & Supp. III 1991), a first-time offender caught with five grams of a mixture or substance containing a "cocaine base" must be sentenced to no less than five years in prison. In contrast, a person must possess at least five hundred grams of powder cocaine to receive a five-year sentence (21 U.S.C.A. §§ 841(b)(1)(B) (ii)-(iii) [1982 & Supp. V 1987]).
Sentencing Guidelines: Fair or Unfair
Sentencing guideline systems for determining criminal sentences have dramatically changed the way punishment is meted out in U.S. courtrooms. Twenty-two states and the federal government use sentencing guidelines, which require a judge to calculate a criminal sentence using a mathematical formula. Points are assigned based on the defendant's offenses, prior criminal record, and other factors. A total is calculated, and the sentence is computed. A judge has very little room to depart from the sentence mandated by the guidelines.
There has been controversy over the fairness and the legitimacy of using sentencing guidelines, with the most criticism directed at the U.S. Sentencing Guidelines. The criticism comes mostly from defense attorneys and judges, who argue that the guidelines give prosecutors too much power in the criminal justice system and give too little discretion to judges to shape a sentence to fit the individual defendant. Defenders of sentencing guidelines contend that they are a vast improvement over the way sentencing has traditionally been done, eliminating "judge shopping" and the Arbitrary and disparate sentencing practices that come with unbridled judicial discretion.
Congress authorized the U.S. Sentencing Guidelines in 1984. The U.S. Sentencing Guidelines Commission, a seven-member panel appointed by the president and confirmed by the Senate, issued the first set of guidelines in 1987. The guidelines have been constantly changed, mostly by the commission, but also by congressional legislation. In addition, Congress has exercised its Veto power over amendments proposed by the commission. By 1996 the federal guidelines had grown to an 850-page manual, containing complex formulas for computing different types of sentences.
Proponents of federal sentencing guidelines believe that they reduce sentencing disparity and guarantee harsher punishment for federal felons, many of whom are convicted for selling illegal narcotics. Before the guidelines were created, the proponents argue, defendants tried to avoid judges who handed out tough sentences and to find one who would be lenient. Thus, in one court a bank robber would get an eighteen-year sentence, while in another a robber convicted of the same crime would receive only five years in prison. In addition, there was evidence to suggest that minorities received the harshest treatment. Sentencing guidelines have, therefore, reduced the arbitrary dispensation of punishment.
Proponents also contend that because the guidelines provide predictable sentences, they serve as a deterrent to crime. Criminals know the formula of past conviction plus new conviction equals a certain criminal sentence. Criminals no longer can play the angles in the criminal justice system to their advantage but must face a definite punishment.
Defenders of the guidelines also believe that the reduction of judicial discretion reduces the stress suffered by federal trial judges. No longer do judges have to wrestle with their emotions in devising an appropriate sentence. The guidelines provide an efficient means of delivering a criminal sentence that conforms to public policy goals set out by Congress and the guidelines commission.
Critics of the federal guidelines contend that while the idea of uniform criminal sentences may seem attractive, in practice the guidelines have created another arbitrary system of sentencing. A major criticism is the shift in power from the judge to the federal prosecutor. Because the criminal charge will trigger, upon conviction, a particular sentence in the guidelines, a prosecutor's charging decision is the most important one in the case. A prosecutor can determine whether a defendant's time in prison is short or long by manipulating the charges and a case's extenuating circumstances.
Critics argue that prosecutorial discretion has replaced judicial discretion, allowing defendants who hire defense counsel knowledgeable in the workings of the guidelines to negotiate plea agreements that reduce the charges and accompanying jail time. Defendants with less effective counsel receive longer sentences. Critics point to the disparate sentences received by defendants involved in the same crime. Therefore, it is clear that prosecutors can manipulate the charges, with judges powerless to change the sentencing outcome.
Critics, especially federal judges, decry the loss of discretion to shape a criminal sentence that is appropriate to the individual. The federal guidelines impose mathematical formulas, reducing a human being to the number of points on a sentencing grid worksheet. Judges are forced to ignore the particular circumstances of the case and the individual and hand out the sentence dictated by the guidelines. Those judges who depart from the guidelines and give more lenient or more severe sentences invariably invite appellate review of their decisions.
Another criticism is that the guidelines reflect political concerns more than penological ones. Critics charge that Congress, in its zeal to be regarded as tough on crime, has imposed severe penalties that are out of proportion to the nature of some of the offenses. In addition, Congress has vetoed some sentencing commission revisions to the guidelines that it has regarded as politically unacceptable.
Critics also object to the growing complexity of the guidelines, analogizing the various provisions to the Internal Revenue Code. The sentencing commission's continuous revisions, contend critics, have undermined the stability of the guidelines and lessened the goals of predictability and uniformity.
In 1994, Congress moved to limit the applicability of mandatory minimums to low-level, nonviolent drug offenders. Under 18 U.S.C.A. § 3553(f), a judge may use the guidelines instead of the statutory minimum sentence if (1) the defendant does not have a criminal history of more than one point (one minor conviction, such as a petit misdemeanor); (2) the defendant did not use violence or credible threats or a firearm in the offense and did not coerce another to do so; (3) the offense did not result in death or serious bodily injury; (4) the defendant was not an organizer of others in the offense and was not engaged in a continuing criminal enterprise (such as a Racketeering scheme or the functioning of a street gang); and (5) by the time of the sentencing hearing, the defendant has informed the prosecutor of all the facts surrounding the case, including facts regarding offenses related to the case.
Also in 1994, Congress exercised its power over sentencing by passing the Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. No. 103-322, September 13, 1994, 108 Stat. 1796). Under provisions of this act, violent offenders convicted of their third felony must be sentenced to life imprisonment (Pub. L. No. 103-322, §§ 70001–70002, 108 Stat. 1796, 1982–1985  [codified as amended at 18 U.S.C.A. §§ 3559, 3582(c)(1)(A) (1988)]).
Mandatory minimums are not the same as the Federal Sentencing Guidelines. Mandatory minimum sentences remove all discretion from the sentencing judge, whereas the guidelines allow for some leeway. In United States v. Madkour, 930 F.2d 234 (2d Cir. 1991), Michael P. Madkour, a recent graduate of the University of Vermont with no criminal record, received a mandatory minimum sentence of five years in federal prison for possessing more than one hundred marijuana plants with an intent to manufacture marijuana. Under the guidelines, the prison sentence would have been 15 to 21 months.
The most common punishments identified in state statutes are community service, probation, fines, restitution, and imprisonment. In the 1990s, some southeastern states authorized sentences of hard labor on chain Gangs. Many states have also reinstated the death penalty. Death penalty sentences are usually delivered by a jury, not a judge, and only after a hearing.
Criminal defendants are sentenced at a sentencing hearing. In the hearing, the judge may consider all relevant evidence, testimony, and a presentence report from a probation or court services officer. The rules of evidence do not apply in presentencing hearings, so Hearsay and other fallible evidence may be introduced. In both federal and state courts, the sentencing hearing is preceded by a presentence investigation and report. These are conducted by a court services or probation officer, who then submits the report to all parties to the prosecution. At the hearing, the prosecutor and defendant are entitled to argue against the recommendations for sentencing made in the presentence report.
In many states, courts still possess the authority to craft sentences within the bounds of sentencing statutes. In these states, criminal statutes contain a sentencing provision that identifies minimum and maximum punishments for specific crimes. For example, in Georgia, a person convicted of hunting alligators without a license "shall be punished by a fine of not less than $500.00 and, in the discretion of the sentencing court, imprisonment for not more than 12 months" (Ga. Code Ann. § 27-3-19). This means that the judge must order a fine of at least $500 and may also order imprisonment of up to 12 months.
Many states have also passed so-called three-strikes-and-you're-out laws. Under these laws, when a person receives a third criminal conviction, the person's sentence is enhanced considerably. California's version of the three-strikes law has been at the center of attention in the legal community due to two high-profile cases that eventually reached the U.S. Supreme Court. Under California's law, if a person with two prior felony convictions is convicted for a third time, he or she will receive a greatly enhanced sentence. Cal. Pen. Code Ann. § 667 (West 1999). Some defendants have received convictions of 25 to 50 years for petty thefts.
In one California case, Leandro Andrade was convicted of stealing five video tapes from a K-Mart store. The petty theft charges were tried as felonies, and when he was convicted, he received two consecutive 25 years sentences. In another case, Gary Ewing, who was on parole from a nine-year prison term, was convicted of stealing three golf clubs. He received a sentence of 25 years. Both Andrade and Ewing appealed their sentences, alleging that California's law constituted Cruel and Unusual Punishment in violation of the Eighth Amendment to the U.S. Constitution.
The Supreme Court disagreed with both Andrade and Ewing. In Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003), the Court held that Ewing's sentence was not grossly disproportionate and, thus, not in violation of the Eighth Amendment. The crime he committed constituted a felony, and the decision of the California legislature to enhance the sentence of a repeat offender was within the discretion of the legislature. The Court also upheld the conviction of Andrade in Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, L. Ed. 2d (2003). The Andrade's case, the court found that the Ninth Circuit Court of Appeals had erred in granting Habeas Corpus relief because a California state court had not contradicted established federal law when it ruled that the California statute was constitutional. The Ninth Circuit had previously ruled that the three-strikes law violated the Eighth Amendment.
Opponents of determinate sentencing claim that it will result in increased crowding of prisons and greater costs of incarnation. Proponents note that the enhanced sentencing will result in long-term cost savings because repeat offenders will no longer be on the street. These supporters say that the state and federal governments will save on property loss, losses from pain and suffering, lost wages, police security, and medical insurance costs resulting from the crimes of these offenders.
Some judges who have become dissatisfied with high rates of Recidivism have exercised their sentencing discretion by meting out innovative punishments intended to address the specific criminal conviction or the conviction history of the specific criminal. For example, a judge in Wilmington, North Carolina, gave a shoplifter the option of either serving a prison term or standing outside J.C. Penney carrying a sign that advised passersby of her transgression. Similarly, in Seattle, a youthful car thief was sentenced to 90 days in detention, a monetary fine, and 16 months of supervision, during which time he was required to wear a sign saying, "I'm a car thief." Critics, including the American Civil Liberties Union (ACLU) deplore such punishments as forms of public humiliation.
Juvenile court judges possess tremendous discretion in sentencing. In 1995, Judge Wayne Creech, of the Berkeley County Family Court, in South Carolina, ordered 15-year-old Tonya Kline to be physically tied, 24 hours a day, to her mother, Deborah Harter. This order was imposed on Kline and Harter after Kline was charged with truancy, shoplifting, and housebreaking. Under the tethering conditions, Kline and Harter were allowed to separate only to go to the bathroom and to shower.
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Parson, Elizabeth A. 1994. "Shifting the Balance of Power: Prosecutorial Discretion Under the Federal Sentencing Guidelines." Valparaiso University Law Review 29.
Reitz, Kevin R. 2002. "American Law Institute, Model Penal Code: Sentencing, Plan for Revision." Buffalo Criminal Law Review 6.
Spohn, Cassia C. 2002. How Do Judges Decide?: The Search for Fairness and Justice in Punishment. Thousand Oaks, Calif.: Sage.
"United States Supreme Court Rejects Constitutional Challenge to California Three Strikes Law." Witkin Legal Institute. Available online at <www.witkin.com/pages/recent_dev_pages/current_pages/constitution_law_ewing.htm> (accessed August 26, 2003).
Wytsma, Laura A. 1995. "Punishment for 'Just Us'—A Constitutional Analysis of the Crack Cocaine Sentencing Statutes." George Mason Law Review 3.