3.8. Substantive Law: Punishment: Incarceration and Confinement Sanctions
3.8. Substantive Law: Punishment: Incarceration and Confinement Sanctions
Lore Rutz-Burri
Substantive criminal law not only defines what behaviors are crimes but also the law that determines the permissible punishment for criminal behavior. All three governmental 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. Because of the trend toward mandatory sentencing, discussed below, much of the discretion of sentencing has been removed from judges and placed on the prosecutors in their screening and charging decision-making. 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, without regard to who may be committing the offense, is a product of the legislative process. In the last 30 years, through ballot measures, propositions, referendums, and initiatives, the people (the general public through voting) have played a large role in deciding the types and lengths of punishment.
Incarceration/Confinement Sanctions
Confinement sanctions include incarceration in prisons and jails, incarceration in boot camps, house arrest, civil commitment for violent sexual offenders, short-term shock incarceration, electronic monitoring, and split probation (when incarceration is imposed as a condition of probation). Most believe that confinement is the only effective way to deal with violent offenders. Although people question the efficacy of prison, regarding it as little more than a factory for producing future criminals, incarceration does protect society outside the prison from dangerous offenders. Prison is effective at incapacitation, but rarely is it effective at rehabilitation. Serving time in prison often reinforces criminal tendencies.
State and federal approaches to incarcerating individuals have shifted in response to prevailing criminal justice thinking and philosophy. Over time, governments have embraced four different approaches to sentencing offenders to incarceration: indeterminate, indefinite, determinate, or definite. Criminal codes may incorporate more than one single approach. These approaches can be seen as a spectrum of judicial discretion. Indefinite and indeterminate sentences, at one end, are those that allow judges and parole boards the most discretion and authority. Determinate and definite sentences, at the other end, allow little or no discretion. Currently, most states are following determinate sentencing coupled with sentencing guidelines, mandatory minimums, habitual offender statutes, and penalty enhancement statutes.
Indeterminate-Indefinite Sentencing Approach
For much of the twentieth century, statutes commonly allowed judges to sentence criminals to imprisonment for indeterminate periods. Under this indeterminate sen