6.1. Introduction to Sentencing in the U.S.
Lore Rutz-Burri and Kate McLean
In Chapter 2, we learned how substantive criminal laws define what behaviors are crimes; the same laws also stipulate the permissible punishments for different crimes. All three 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. At the same time, because of a trend toward mandatory sentencing (discussed in the following chapters), much of the discretion in sentencing has been removed from judges and placed on the prosecutors who decide the charges a defendant will face. 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 is a product of the legislative process. In the last 30 years, through ballot measures, propositions, referendum, and initiatives, the people (the general public through voting) have also played a large role in deciding the types and lengths of punishment.
Sentencing Philosophies
Criminal sentences ranges widely – from confinement sanctions (ex. incarceration in prisons and jails), community sanctions (ex. probation), monetary sanctions (ex. fines), physical sanctions (ex. capital punishment) and civil sanctions (ex. civil commitment for violent sexual incarceration in boot camps). Different kinds of sentences, and sentencing mechanisms, typically align to different sentencing or punishment philosophies. Throughout this chapter, we should consider what kind of sentencing/punishment philosophy – or understanding of offenders, their offense, and the purpose of punishment – is expressed through different types of sentencing. There are 5 broad philosophies, which often operate concurrently in a given sentence:
- Retribution – sentences that seek to impose suffering on the defendant, as compensation for the suffering they have caused
- Incapacitation – sentences that seek to prevent a specific offender from re-offending, by imposing practical limitations on their movement or body.
- Rehabilitation – sentences that seek to address and “fix” aspects of the offender that contributed to their criminality
- Deterrence – sentences that seek to prevent other from offending, by threatening a severe a punishment if caught
- Restoration – sentences that attempt to reconcile the offender, victim, and larger community through practices that emphasize mutual healing
As noted above, one sentence, or sentencing actor, might combine many of the above philosophies. Consider an individual sentenced to 25 years in prison for second-degree homicide. Facing a quarter-century of incarceration is certain to cause the offender suffering, and that period of confinement will also prevent them from harming others outside the prison (incapacitation). While incarcerated, th