KIM WOODS Criminal Justice Multiple Choice

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Assignment8B

Use the answer sheet to respond to the following questions. When completed, post your answer

sheet through the Assignments section. There is one correct answer per question, and each

answer is worth two points.

Example:

Which amendment protects against unreasonable searches and seizures?

a) First Amendment

b) Fourth Amendment

c) Fifth Amendment

d) Sixth Amendment

e) None of the above.

The correct answer is “B,” so you would enter “B” on the answer sheet for this assignment. One

point would be awarded for this question as the question was answered correctly.

1. Sentencing agents who act beyond the limits of their authorized discretion or otherwise

impose an unconstitutional sentence

a) can be held liable in civil court and ordered to pay damages to the defendant.

b) can be held criminally liable and may be charged with violating the defendant’s constitutional

rights.

c) can have their decision reviewed and overturned by an appellate court.

d) All of the above.

e) None of the above.

2. Judges and juries are limited in the sentencing process by

a) society’s needs and expectations.

b) plea bargain agreements.

c) the recommendations of the prosecutor.

d) All of the above.
e) None of the above.

3. The Eight Amendment

a) specifies penalties for certain criminal offenses.

b) requires that punishment be proportionate to the offense.

c) prohibits compulsory sentences.

d) all of the above.

e) None of the above.

4. At sentencing, the judge tells the defendant, “This is your third time appearing before me for a

charge of driving under the influence. You have been given two chances, and I owe it to the

people of this district to impose a sentence that will finally get your attention and, hopefully,

make this your last offense. Therefore, I sentence you to three years in prison.” This best

exemplifies which sentence philosophy?

a) retribution

b) incapacitation

c) deterrence

d) All of the above.
e) None of the above.

5. At sentencing, the judge tells the defendant, “You have been given several opportunities to

change your behavior, and, the last time you were before me, I agreed to a plea bargain that

allowed you to complete treatment rather than going to prison. I cannot allow you to continue

posing a threat to the community. Therefore, I sentence you to five years in prison, where we

know you will not cause harm.”

a) retribution
b) incapacitation
c) deterrence
d) All of the above.
e) None of the above.

6. At sentencing, the judge tells the defendant, “You not only harmed the victim, you created

fear within the community. The court has no mercy for you, and I sentence you to ten years in

prison, a sentence you truly deserve.” This best

exemplifies which sentence philosophy?

a) retribution
b) incapacitation
c) deterrence
d) All of the above.
e) None of the above.

7. At sentencing, the judge tells the defendant, “Your crime cannot be overlooked, but your

honesty about your drug use indicates that you want to be a productive member of society.

Therefore, I order you to complete the Alcohol and Drug Addiction Program, which will give

you the opportunity to overcome your addiction and get your life back on track. This best

exemplifies which sentence philosophy?
a) retribution
b) incapacitation
c) deterrence
d) All of the above.
e) None of the above.

8. The defendant pleads guilty to intentionally damaging a number of mailboxes while walking

home intoxicated. Which of the following sentences is most consistent with the philosophy of

restorative justice?

a) The defendant is sentenced to seven days in jail.

b) The defendant is ordered to complete an alcohol treatment program.

c) The defendant is ordered to replace the damaged mailboxes.

d) All of the above.
e) None of the above.

9. The most commonly applied sanction in the lower courts is

a) community service

b) monetary fine.

c) probation.

d) imprisonment.

e) None of the above.

10. The defendant is unemployed and has no source of income that allows him to pay the

standard $500 fine for the offense of which he has been convicted. Which of the following is

true?

a) The defendant can be jailed due to his inability to pay the fine.

b) The defendant must be given an alternate sentence, such as community service.

c) The court can seize and sell any property owned by the defendant to pay the fine.

d) All of the above are true.

e) None of the above are true.

11. Probation

a) seeks to punish offenders.

b) requires regular face-to-face meetings between defendants and probation officers.

c) can be used for any offense, including murder.

d) All of the above.
e) None of the above.

12. Which of the following is not true of the history of prisons?

a) Prior to the 17th century, prisons were used as the primary method of punishment for those

convicted of crimes.

b) Until the 17th century, most convicted criminals were either executed or subjected to corporal

punishment rather than being imprisoned.

c) The first American prison held prisoners in solitary confinement in an attempt to reform

them.

d) All of the above are true.
e) None of the above are true.

13. Jails

a) are designed for long-term confinement of convicted felons.

b) offer less flexibility than prisons, which are generally funded and operated by states.

c) are often limited as a sentencing option, primarily due to overcrowding.

d) All of the above.
e) None of the above.

14. Which of the following is not currently a method of execution in the United States?

a) electrocution

b) hanging

c) lethal injection

d) All of the above are currently methods of execution in the United States.

e) None of the above are currently methods of execution in the United States.

15. All of the following are capital offenses (meaning those convicted of these offenses can be

sentenced to death) in at least one state, except

a) aircraft hijacking.

b) aggravated robbery.

c) perjury.

d) All of the above are capital offenses.

e) None of the above are capital offenses.

16. During voir dire, a juror tells the court she is 100% opposed to the death penalty and could

never vote to send someone to their death, no matter how heinous the crime. Which of the

following is true?

a) The juror’s comment cannot be considered as the Supreme Court ruled such personal beliefs

and opinions cannot be taken into consideration when selecting a jury.

b) The juror’s comment can be considered, and the juror can be excluded from the jury solely

because of her opposition to the death penalty.

c) The juror’s comment can be considered, and the juror cannot be excluded from the jury solely

because of her opposition to the death penalty.

d) The juror’s comment is irrelevant as only judges can impose the death penalty.

e) None of the above.

17. In Furman v. Georgia (1972), the Supreme Court ruled the death penalty

a) was unconstitutional.

b) could not be administered in an arbitrary manner.

c) could be imposed only for pre-meditated murder.

d) All of the above.

e) None of the above.

18. Which of the following is not an argument against capital punishment, as presented in the

text?

a) There is definitive evidence that innocent people have been wrongly convicted and executed.

b) The death penalty is used in a racially discriminatory manner.

c) Executions are more costly than life-long imprisonment.

d) All of the above are presented in the text as arguments against capital punishment.

e) None of the above are presented in the text as arguments against capital punishment.

19. The defendant is convicted as a sex offender and ordered by the court to place the following

This is an example of

a) home confinement.

b) creative sanctions.

c) restorative justice.

d) All of the above.
e) None of the above.

20. Which of the following is an example of day fines?

a) The offender must report to a detention or treatment center during the day but is allowed to

return home at night.

b) The offender must pay a fine equivalent to three days of pay.

c) The offender must perform community service for five days.

d) All of the above are examples of day fines.

e) None of the above are examples of day fines.

21. The process for establishing an appropriate penalty for a violation of law is known as

a) sentencing.

b) deliberation.

c) equitable consideration.

d) judicial contemplation.

e) None of the above.

22. In preparation for the responsibility of determining sentences,

a) judges receive extension training in sentencing philosophies and objectives.

b) judges are prohibited from relying on attorneys to help determine sentences.

c) judges often rely on other judges to help them develop a sense of appropriate sentences.

d) All of the above.
e) None of the above.

23. Pre-sentence investigation reports

a) are required in every criminal case that comes before the court.

b) are prepared only after a defendant is convicted or agrees to plead guilty.

c) are generally prepared by investigators within the prosecutor’s office or police detectives.

d) All of the above.
e) None of the above.

24. Following a pre-sentence investigation, a probation officer recommends a defendant be

placed in an alcohol treatment program. Which of the following is true?

a) The judge may consider the recommendation but is not bound by it.

b) The judge must incorporate the treatment program into the defendant’s sentence but is free to

add other sanctions.

c) The judge must accept and implement the recommendation without change.

d) The recommendation must be approved by the prosecution and the defense before being

presented to the court.

e) None of the above.

25. During sentencing hearings,

a) witnesses testify about what they saw or heard in regards to the crime for which the defendant

is charged.

b) victims of the families of victims are generally not allowed to testify as they may unfairly

prejudice the sentencing agent.

c) the defense, not the prosecution, has the burden to prove mitigating factors.

d) All of the above.
e) None of the above.

26. In terms of sentencing hearings,

a) defendants have a constitutional right to request sentencing by a jury.

b) judges are prohibited from overturning sentences imposed by juries.

c) evidence excluded at trial because it was illegally obtained can be presented at the sentencing

hearing.

d) defendants have the right to cross witnesses against them.

e) None of the above.

27. Under which of the following circumstances can judges enhance sentences?

a) The judge believes the defendant committed perjury, whether true or not.

b) The defendant refused to cooperate with police and prosecutors.

c) The defendant was charged but not convicted of crimes in the past.

d) All of the above.
e) None of the above.

28. At the sentencing hearing, the prosecution argues the defendant should be given a more

severe sentence because he used a weapon. This is considered a _____ factor.

a) legal

b) extra-legal

c) organizational

d) mitigating

e) None of the above.

29. Extra-legal variables in sentencing

a) are those which have legally permissible influences on legal decisions.

b) undermine the general concept of fairness and justice.

c) include evidence of a prior criminal record and the seriousness of the crime.

d) All of the above.
e) None of the above.

30. Organizational factors in the sentencing decision include

a) characteristics of sentencing judges.

b) the age of the offender.

c) the type of plea.

d) All of the above.
e) None of the above.

31. Research on murder cases shows that which of the following has the more significant

influence on sentencing decisions?

a) the race of the victim

b) the race of the offender

c) the race of the investigating officer

d) the race of the judge

e) All of the above have equal influences on sentencing decisions.

32. Under indeterminate sentencing,

a) judges must impose a specific sentence set by law.

b) judges decide whether or not defendants go to prison.

c) judges must specify a period of imprisonment rather than a general range (for example, three

years in prison rather than one to five years in prison).

d) All of the above.
e) None of the above.

33. Under sentencing guidelines,

a) judges may revise sentences upwards only (more severe).

b) judges may revise sentences downwards only (less severe).

c) judges may revise sentences upwards or downwards but must justify their actions.

d) judges may revise sentences upwards or downwards without any justification.

e) judges cannot revise sentences under any circumstances.

34. Mandatory sentences

a) are generally favored by judges because they remove the burden of sentencing.

b) may be struck down as unconstitutional if they are not proportional to the crime.

c) usually define the maximum sentence for an offense to prevent discrimination.

d) All of the above.

e) None of the above.

35. Which of the following is not an attempt to limit sentencing discretion?

a) Presumptive sentencing

b) Indeterminate sentencing

c) Mandatory sentencing

d) All of the above attempt to limit sentencing discretion.

e) None of the above attempt to limit sentencing discretion.

36. Appellate court decisions

a) are binding on all lower courts within its jurisdiction.

b) are binding only on the parties of a particular

case.

c) do not establish legal precedent, which is a legal process of the legislative branch.

d) provide guidance to lower courts but do not bind them to appellate decisions.

e) None of the above.

37. Arguments for the policymaking power of courts include

a) courts are more heavily influenced by and responsive to the political will of society.

b) courts must rule narrowly on the legal issues of a particular case.

c) courts are better able to protect minority rights.

d) All of the above.
e) None of the above.

38. Judicial review

a) allows the U.S. Supreme Court and the supreme courts of each state to review legislation,

court decisions, and executive acts that are challenged in court to determine their

constitutionality.

b) means that courts can independently decide to oversee the laws enacted by the legislature and

the executive branch.

c) gives the legislative and executive branches to oversee actions of the judicial branch.

d) All of the above.
e) None of the above.

39. Which of the following is true of the appellate courts structure?

a) With respect to Constitutional issues, the decisions of federal courts are usually not binding

on state

courts.

b) The court decisions of one state are usually legally binding on courts in a neighboring state.

c) The ultimate appellate court on constitutional matters is the U.S. District Court of the District

of Columbia.

d) All of the above.
e) None of the above.

40. Criminal convictions in state trials can be appealed directly to the federal courts if

a) the defendant can show state appellate courts cannot be neutral and unbiased.

b) there is a federally guaranteed right at issue.

c) the case involves a capital crime (one punishable by death).

d) All of the above.
e) None of the above.

41. According to the Supremacy Clause,

a) only the Supreme Court can determine matters of constitutionality.

b) federal judges are supreme to state judges as they require presidential appointment.

c) federal laws take precedence over state laws when the two conflict.

d) All of the above.
e) None of the above.

42. Which of the following is true of federal courts of appeals?

a) Decisions are made by three-judge panels.

b) Judges are appointed by Congress.

c) There are fifty federal courts of appeals – one for each state.

d) All of the above are true.
e) None of the above are true.

43. Appeals can be made on the basis

a) of disputes about the facts of a case.

b) that the defense disagrees with the outcome of the case.

c) that the law was misapplied.

d) All of the above.
e) None of the above.

44. Appellate courts

a) usually relitigate factual issues brought up at trial to determine guilt or innocence.

b) assume facts noted in trial court records of proceedings are correct.

c) usually uses the trial court’s record but reviews the evidence and the law without deference to

the trial

court’s rulings.

d) All of the above.
e) None of the above.

45. The Fifth Amendment prohibition against double jeopardy

a) means that a person cannot be tried by two different types of courts on the same charges.

b) means that a person cannot be prosecuted at both federal and state levels.

c) means that a person cannot be charged with more than one crime at a time.

d) All of the above.
e) None of the above.

46. To file an appeal, a person must have standing, which means the person must have

a) a legally recognized interest in the case.

b) the financial resources to pay for the appeal.

c) the ability to attend all required court sessions.

d) All of the above.
e) None of the above.

47. Which of the following is true of appeals?

a) Appeals must be filed within a certain time period following trial, but there is no time limit

for claims of actual innocence.

b) The general legal principle underlying appeals of criminal law and procedure is that the issue

being appealed must have been raised earlier at trial.

c) Generally, the final judgment of a trial court cannot be appealed.

d) All of the above are true.

e) None of the above are true.

48. Which of the following errors generally cannot be appealed?

a) Error in the trial judge’s interpretation of the law.

b) Error in the conduct of trial proceedings.

c) Error committed by the defense.

d) All of the above errors can be appealed.

e) None of the above errors can be appealed.

49. Upon hearing the appeal and reviewing all relevant documents, the appellate court

determined the trial court needed to review the issues brought in the appeal and sent the case

back to the trial court for further consideration. In this example, the appellate court ____ the

case.

a) affirmed

b) reversed

c) remanded

d) overturned

e) None of the above.

50. The Supreme Court

a) must hear all cases appealing Court of Appeals decisions if they involve constitutional issues.

b) does not authority to review legal issues that concern only state constitutions or statutes.

c) grants review of a case only if at least five of the nine justices (a majority) agree to accept the

case.
d) All of the above are true.
e) None of the above are true.

51. During the appeals process, the burden of proof is on

a) the prosecution to prove its actions during trial were legal and proper.

b) the trial judge to prove he or she strictly adhered to all legal procedures throughout the trial.

c) the appellant to prove proper legal procedures were not followed during the trial.

d) All of the above are true.

e) None of the above are true.

52. Due to stare decisis, appellate courts are predisposed to _____ lower court decisions.

a) affirm

b) reverse

c) remand

d) reject

e) None of the above.

53. The defense takes its case all the way to the Supreme Court, but the Court rules against the

defense, affirming the lower court’s decision. What appellate options are available to the

defense?

a) The defense can appeal to the U.S. Senate, which can overturn the Supreme Court’s decision

with a simple majority vote.

b) The defense can appeal to the President, who can overturn the Supreme Court’s decision with

an Executive Order.

c) The defense can re-file an appeal with the federal Court of Appeals that originally heard the

case.

d) The defense can request that the Attorney General review the Court’s decision.

e) The defense has no further options to appeal the case.

54. During the appeals process,

a) each side is usually given one hour to argue its case.

b) each side is expected to submit a brief, which is a one-page summary of key points of their

case.

c) courts usually issue a written opinion explaining their decision.

d) All of the above are true.
e) None of the above are true.

55. The U.S. Supreme Court hears about _____ cases a year.

a) 50 to 75

b) 100 to 200

c) 250 to 300

d) 500

e) None of the above.

56. Prior to the industrial era, the primary source of control for the actions of juveniles was

a) their parents.

b) the schools.

c) the church.

d) the police.

e) juvenile courts.

57. Early juvenile courts

a) operated under the principle of parens patriae, which means they were considered criminal

courts.

b) focused on punishment as a way to reduce juvenile delinquency rates.

c) generally opposed due process rights for youthful offenders.

d) All of the above.
e) None of the above.

58. Kent v. United States (1966) is an important case because it

a) granted juveniles all due process rights afforded to adults.

b) expressed the Supreme Court’s dissatisfaction with the juvenile justice system and

acknowledged juveniles have at least some due process rights.

c) called into question the principle of parens patriae.

d) All of the above.
e) None of the above.

59. Jury trials in juvenile courts

a) are prohibited by the Supreme Court’s 1971 decision in the case of McKeiver v. Pennsylvania.

b) are required in cases involving serious charges that could result in more than five years

detention.

c) are guaranteed by the Six Amendment.

d) are available only to juveniles transferred to the adult court system.

e) None of the above.

60. The prosecutor works in a state with concurrent jurisdiction. He receives a case of a juvenile

charged with armed robbery and attempted murder. Which of the following is true?

a) The case must be heard in the juvenile court.

b) The case must be heard in the adult court.

c) The prosecutor can request permission from the juvenile court judge to transfer the case to the

adult system.

d) The prosecutor can prosecute the case in either the juvenile or adult court, whichever he

chooses.

e) None of the above.

61. Defendants in adult courts must be proven guilty beyond a reasonable doubt. The standard

or burden of proof in the juvenile courts is

a) Beyond a reasonable doubt

b) Preponderance of the evidence

c) Probable cause

d) Reasonable suspicion

e) None of the above

62. According to a 1997 study of the Cook County, Illinois, Juvenile Court, the average

juvenile court hearing lasts

a) one hour

b) 45 minutes

c) 30 minutes

d) 15 minutes

e) None of the above

The following questions are optional. You will not be penalized if you choose to not answer

these. These questions serve as extra credit, but your grade cannot exceed 125 points.

63. Under the concept of statutory exclusion,

a) juvenile cases can be transferred to the adult system only after a waiver hearing.

b) prosecutors are barred from initiating a case against juveniles under a certain age.

c) a waiver hearing is not required for a juvenile to be tried as an adult.

d) prosecutors have discretion to try juveniles as either adults or juveniles.

e) None of the above.

64. Which of the following is true of the juvenile court intake process?

a) The primary source of referrals is parents.

b) All juveniles arrested by police must be referred to the juvenile court intake officer, who

determines whether the case is referred for prosecution.

c) Only prosecutors and judges have the authority to dismiss cases prior to the adjudication

hearing.

d) Since the early 1990s, a greater percentage of cases are being referred for formal prosecution

rather than handling the case informally through informal probation or a referral to a social

service agency.

e) None of the above.

65. In re Gault (1967) is a landmark case in the juvenile justice system. It provided juveniles all

of the following legal protections, except

a) the right to a hearing before the case is transferred to the adult system.

b) the right to a transcript of proceedings.

c) the right to be represented by an attorney.

d) In re Gault provided juveniles all these rights.

e) None of the above.

Assignment

B Answer Sheet

Please post the completed answer sheet as an attachment through the Assignments section.

YOUR NAME:

Your Answer (Letter Only)

Question Number

Your Answer (Letter Only)

Question Number			Your Answer (Letter Only)	Question Number
1	3 1	6 1
2	32	62
3	33	63
4	34	64
5	35	65
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30	60

P A R T I V

Post-Conviction Process

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The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc

Step 13

The Punishment Dilemma

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383

❖

In the previous chapter, we learned about the important events in a criminal trial.
Once an individual has been convicted or has pled guilty, the focus of the court
changes from determination of guilt to the determination of an appropriate penalt

This role is generally believed to be a sentencing agent’s (i.e., a judge’s or jury’s

)

most difficult task. The violation of all laws carries some potential penalty, even if
the sentence is ultimately suspended. Before we can discuss the imposition of
penalties, however, we must first examine where sentencing agents derive their
power, what philosophies guide sentencing, and what options are available at sen-
tencing. This chapter focuses on these three area

DISCRETION

Determining penalties is yet another stage in the court system that allows for and
requires discretion (i.e., the power or ability to act according to one’s judgment or
beliefs). Just as prosecutors need to make choices about what charges to file, sen-
tencing agents need to be able to make reasoned choices about which sentences fit
the crime. Of course, they cannot make choices that are ludicrous or unconstitu-
tional. The choices they make must fit within the limits of their discretion (that is,
how they can legally exercise their discretion) or they run the risk of being over-
turned or changed at the appellate level.

The first factor that limits judges and juries in the sentencing process is th

U.S. Constitution. According to the Eighth Amendment, sentences must not be
“cruel and unusual.” Generally, this means that sentences cannot involve torture or
other brutal practices. An early U.S. Supreme Court case that involved this issue
was Weems v. United States (1910). Among other things, Weems had been sen-
tenced to fifteen years of “hard and painful labor” in chains for making false entries
into official records while working for the U.S. government in the Philippine
Islands. The Supreme Court ruled that the sentence was not proportionate to

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The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

Weems’ offense and thus invalidated it. Sentencing agents, then, have to ensure
that the sentences they impose are not too disproportionate to offenders’ crimes.
Beyond Weems, however, the Court has not offered much of a definition of what
constitutes cruel and unusual punishmen

A more recent usage of the Eighth Amendment includes cases in which over-
crowding at prisons is an issue. In essence, some appellate and supreme courts
have ruled that double- and triple-celling of inmates is a cruel punishment. Judges
know they cannot sentence offenders to prisons that are under a decree to reduce
their populations unless other offenders are released to make room for the new
arrivals (e.g., Meyer and Jesilow, 1993). This may mean that offenders who judges
feel deserve jail are sentenced with other options.

A second factor that limits sentencing agents is criminal statutes. All criminal
statutes list the potential penalties for engaging in the proscribed activity. Those
who burglarize homes in California, for example, face a sentence of two to six
years in prison. New Jersey burglars can expect a sentence of three to five years in
prison. Burglars in other states face penalties set by their state’s legislature. Judges
cannot sentence burglars to the death penalty because penal codes do not allow this
sentence for burglars.

The third factor is related to the second, and is the role played by compulsory
sentencing laws. Although they will be discussed more in the next chapter, it is
important to mention that sentencing agents must, in theory, heed whatever com-
pulsory sentencing laws have been put in place by their legislative bodies. The
most common compulsory sentencing schemes are mandatory sentencing laws,
which require judges to impose mandatory minimum sentences. Compulsory
schemes also include sentencing guidelines designed to narrow judges’ discreti

and sentence enhancements, which mandate additional penalties for certain offend-
ers (e.g., the use of a gun or specific type of weapon while committing another
crime may result in the imposition of additional time in prison).

The fourth factor in discretion is society’s role. Before imposing sentences,
judges need to consider what the public wants for particular offenders or types of
offenders. Elected judges need to remain responsive to their constituents’ needs in
order to get re-elected. Even if they are appointed, judges must consider the politi-
cal ramifications of imposing sentences that are not consistent with the public’s
wishes. Some scholars argue that judges in small communities are most affected by
these constraints because each judge “knows the content of his sentencing remarks
will be on page one of the local paper” (Kunkle, 1989, p. 75).

The final factor limiting discretion is the sentencing philosophy to which the
court or state legislature ascribes. Sentencing philosophies embody the purposes
we have for punishing criminals and are very important, as they sometimes dictate
which punishments are appropriat

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PUNISHMENT PHILOSOPHIES

There are four generally recognized punishment philosophies: deterrence, incapac-
itation, rehabilitation, and retribution. Some scholars argue that there is a fifth pun-
ishment philosophy, restoration (e.g., Branham and Krantz, 1994, p. 6). Although
the goal of each philosophy: is to prevent crime, they differ dramatically in their
approaches. We will discuss each of the five in turn. Boxes 13.1 through 13.5 will
present a number of interview segments with judges to illustrate the sentencing
philosophies.

Deterrence

According to the principle of deterrence, the purpose of punishment is to prevent
crime by convincing or scaring individuals not to commit crimes because they or
others have been punished for violating a law. When people decide not to park in a
handicapped space because they have been fined or do not want to be fined, they
have been deterred from the illegal activity.

One early scholar who wrote about deterrence was Cesare Bonesana, March-
ese de Beccaria (1738–1794). Beccaria was a classical theorist who argued that
criminals are rational human beings who make choices based on free will. He said
criminals choose to commit crimes because the benefits outweigh the costs. The
way to prevent crime, then, is to raise the “costs” of crime. Among other things, he
recommended that certainty, celerity (speed), and severity be considered when
designing an effective system of punishment (Beccaria, 1775/1983).

Certainty means the assurance with which one can expect to be punished fol-
lowing a crime. Beccaria argued that criminals could not be deterred from crimes
unless they felt certain they would be punished. If only a small percentage of crim-
inals are punished for violating a particular law, others may be likely to break the
same law with the assumption that they will not be caught. This is one reason why
motorists are more likely to speed when they do not see police officers. Similarly, I
have had students tell me they are less likely to cheat when their professor brings in
extra proctors to help keep an eye on things; they feel the chances of getting caught
and punished are higher when the proctors are present. In a nutshell, these students
are talking about certainty.

But, many factors contribute to the fact that the certainty of punishment for
any given crime is not at optimally high levels. First, fewer than half of crimes are
reported by victims (Harlow, 1985; Bureau of Justice Statistics, 2000, p. 94), so the
perpetrators of the unreported crimes never face the specter of arrest or punish-
ment. Certain crimes, especially white-collar offenses, might go undetected by the
victims so they are not even reported, much less prosecuted. Cases are eliminated
at various stages in the justice system by officials exercising their discretion (e.g.,
police officers may sometimes issue warnings rather than taking more formal

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actions, or prosecutors may decline to prosecute in some cases because of eviden-
tiary or other concerns). Given these realities, certainty of punishment does not
exist for all crimes.

Celerity is the swiftness with which criminals are punished. Beccaria argued
that people are less able to attach meaning to punishments that are long overdue.
For example, children who are told to “Wait till your father gets home” may forget
why they are being punished once daddy finally gets home. Further, some crimi-
nals may break laws because they know they will not be punished for months,
sometimes years, after their crimes.

Severity refers to the harshness of the penalties imposed on offenders. Becca-
ria felt that penalties should be severe enough to deter people from crimes, but rea-
sonable enough that all guilty parties will be reported and punished; that is,
sentences must not be too lenient nor too strict. To illustrate, consider the penalty
for cheating on papers. If the penalty was to rewrite the paper, some people would
be willing to turn in their classmates, and professors would agree to penalize the
cheaters. On the other hand, if the penalty was expulsion from the school, even on
a first offense, very few students would be turned in and punished because many
people would consider that penalty to be unreasonable. Only cheaters who were
already outcasts would be subjected to such a system of justice, leading to dispari-
ties in sentences. Another example of this is the reluctance of some juries to con-
vict defendants accused of nonviolent crimes if the jurors suspect the case is a

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Cesare Beccaria (1738–1794) is considered the father of classical theory. Beccaria and his followers
argued that criminals are rational human beings who make choices based on free will. To prevent
crime, Beccaria felt punishments must be swift and certain, and sufficiently severe to deter would-be
offenders. SOURCE: Illustration courtesy of the Granger Collection.

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“three strikes” case that will result in a very long sentence for the defendant. Bec-
caria argued that certainty and celerity were far more important than severity. Even
if the penalties were mild, knowing that all offenders would be detected and pun-
ished would still deter people from crime.

There are two types of deterrence: general and specific. Specific deterrence
(also known as individual deterrence) occurs when criminals are deterred fro

future crimes because they themselves have been punished. My friend Elena does
not jaywalk because she once received a ticket for doing so. Whenever she starts to
jaywalk, she hears money trickling from her bank account to pay the fine. Another
of my students told me he will never park in a handicapped space because he was
given 100 hours of community service for a past infraction. Both of these individu-
als had been affected by specific deterrence. Whenever convicted criminals say
they wish to avoid going back to jail, specific deterrence is operating.

General deterrence, on the other hand, takes place when others (the com-
munity in general) are deterred because they know criminals are punishe

Although I have never been ticketed, I do not jaywalk because my friend Elena
received an expensive ticket for jaywalking. In fact, none of her friends jaywalk
because we do not want to get tickets. Whenever would-be offenders decide they
do not want to be punished because they have seen others receive distasteful penal-
ties, general deterrence is at work. Sometimes, judges will acknowledge the value
of general deterrence during sentencing. For example, one low-level money laun-
derer was told by a federal judge that she was sentenced to two weeks incarcera-
tion, even though the prosecutor had not called for any incarceration, because he
wanted to “send a message that if you commit a crime of this sort, you will go to
jail” (Neumeister, 2000). The judge felt she did not deserve a longer sentence
because the role she played was minimal, but wanted to emphasize deterrence in
the minds of other would-be criminals.

In summary, under deterrence, criminals are hypothesized to be rational indi-
viduals who weigh the costs and benefits of illegal acts and decide that the benefits
of crime outweigh the costs (Blumstein, Cohen, and Nagin, 1978, p. 19). Offenders
are punished, then, to maintain the perception that crime has high costs, thus
thwarting the commission of illegal acts.

Critics of deterrence point to its seeming inconsistencies with popular
thought and the findings from research on the psychology of decision-making.
Because the philosophy is rooted in the concept of the greatest good for the great-
est number, certain offenders should go unpunished, according to deterrence theo-
rists. Jeremy Bentham (1823, 1948, p. 177), for example, argued that crimes
committed by offenders whose skills were needed by the rest of society (e.g., a
community’s only doctor) should go unpunished. We see hints of this phenomenon
today when doctors who work in low-income areas are not prosecuted or are not pun-
ished for medical fraud because the system is not able to readily replace them (e.g.,
Jesilow, Pontell, and Geis, 1993). Bentham also held that punishments—executions

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or other penalties—that would anger the populace or other governments should not
be carried out (e.g., the uproar by the United States to reduce Michael Faye’s pun-
ishment after he was sentenced to be caned in Singapore). These ideas are repug-
nant to those who argue that criminals should not escape punishment solely
because of their status in society.

Other critics argue that it is impossible to know whether the impact of punish-
ment (the costs of crime) deters potential offenders because we cannot accurately
determine how much benefit a certain crime represents to an offender or how much
cost a given punishment delivers. This is due to the fact that according to deter-
rence theory, each offender theoretically weighs the costs and benefits of commit-
ting a crime according to his or her own subjective perception. Thus, there will be
individual differences between potential offenders in how they perceive the risks
and rewards of crime. For example, which is considered worse by offenders, a year
of intensive supervision probation or a year in prison? Several research teams have
found that offenders (especially recidivists and single men) report that they would
prefer prison due to their belief that probation is stricter or more difficult to com-
plete (Crouch, 1993; McClelland and Alpert, 1985; Petersilia and Piper Des-
chenes, 1994). Their preference for jail cannot be blamed merely on difficulties in
making such decisions without facing them; Petersilia and Turner (1990) found

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388 The Punishment Dilemma

A tangible example of deterrence in Dorset, England. This sign from the early 1700s illustrates two
important concepts in punishment. First, the sign represents a clear attempt to deter would-be offend-
ers from damaging the bridge through the threat of severe punishment. Second, the sign mentions the
penalty of transportation for life for those who damage the bridge. Between 1718 and 1776, some
thirty to forty thousand offenders were sentenced to transportation from England to America.
Between 1787 and 1869, approximately 162,000 criminals were transported from England to Aus-
tralia (Newbold, 1999). SOURCE: Courtesy of Jon’a Meyer.

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that nearly one fourth of a sample of offenders who were offered the opportunity to
participate in an intensive probation program preferred instead to go to prison!

Another difficulty in assessing deterrent value of punishments is that punish-
ments affect different people in dissimilar ways. A fine, for example, may be of little
consequence to a wealthy business owner but may be overwhelming to an unem-
ployed person. Other penalties also affect people differently. Some individuals are
traumatized by even short jail terms, whereas others seem able to tolerate prison
terms of several years. To some, community service is a way to serve their commu-
nities; others view it as a shameful, stigmatizing punishment. Some scholars
believe that although deterrence (especially general deterrence) has not worked
well for reducing street crimes, it may be more effective when applied to white-
collar criminals, who are arguably more likely to consciously contemplate the conse-
quences of their crimes (e.g., Braithwaite and Geis, 1982). The list of comparisons
could go on if we had unlimited space to consider them here.

Others argue that not all people act of their own free will. The mentally ill, for
example, may commit crimes due to reasons other than their exercise of clear
thought; that is, they may commit crimes that reflect the influence of their illness
on their thinking processes. It may also be difficult to deter crimes of passion, in
which offenders are so incensed that they are temporarily unable to act in a rational
manner. Individuals who catch their spouses in bed with other lovers, for example,
are unlikely to weigh the costs and benefits of a criminal act before taking some-
times lethal actions. Consider the last time you wanted to punch someone. Chances
are you were furious and were not in the mood to consider the pros and cons of
crime. Modern laws take this lack of free will into account by allowing complete or
partial defenses for the mentally ill and for crimes committed in the heat of pas-
sion. If a reasonable person would be incensed by the situation faced by the defen-
dant, then the defendant might qualify for a lesser charge or lower degree of the
crime (e.g., second-degree rather than first-degree assault).

Other critics argue that this utilitarian philosophy allows for the sanctioning
of innocent people (e.g., Rawls, 1955). Because deterrence relies on making exam-
ples of others, it would not be evil to punish an occasional innocent to deter others
if the sanctioning meant the greatest good for the greatest number. Bentham (1823/
1948, p. 183), for example, advocated punishing offenders for crimes that had not
yet been detected because it was often difficult to uncover all crimes committed by
offenders. This criterion is less likely to be cited as good policy today, but there are
some offenders who were “made an example of,” even if their actions were not
necessarily the most egregious, in order to keep the perceived costs of punishment
high. For example, after a man who falsely claimed he had provided Columbine
shooters Eric Harris and Dylan Klebold with bomb-making materials was arrested
and booked into jail for making a false report, the local sheriff commented,
“Maybe this will slow down some of these crackpot calls that we’re getting” (Vogt,
1999). The sheriff’s comments show that the man was essentially being made an

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example of to prevent others from making such calls, especially as he was the only
one (of presumably many offenders, given the sheriff’s comments) charged with
such an offense. In fact, he could have received a harsher sentence than others who
played a role in facilitating the offense. See Box 13.1 for three interview segments
that illustrate deterrence as a sentencing philosophy.

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390 The Punishment Dilemma

BOX 13.1

Judges’ Comments on Deterrence

This and the following four boxes presents extracts from interviews with eleven judges to illus-
trate each of the five sentencing philosophies. As you read the following interview segments,
think about how they demonstrate deterrence.

General deterrence:

[Regarding driving-under-the-influence (DUI) cases]: You hear cases on both sides,
does incarceration really help? Should we put these people in home confinement
because the jails are so crowded? I feel really strongly that punishment is a deter-
rent on DUI cases. I think that this is demonstrating that people are drinking less at
noon, people are very aware of designated drivers. I think a lot of this has to do with
fear of going to jail.

Specific deterrence:

[Regarding littering offenses]: A $271.00 fine and picking up trash for eight hours
is heavy enough, don’t you think? The point of the law is deterrence, so a person
will never, ever do it again. And I don’t think you have to fine somebody $500.00 to
accomplish that purpose. If a $271.00 fine and picking up trash for eight hours
doesn’t do it that guy or gal is crazy. I have not had a repeat littering offender;
maybe if I did I would jack it up a little.

Both specific and general deterrence:

With respect to deterrence, I think we have to look at a couple of aspects of it. One,
is this particular defendant going to be deterred from committing future similar
crimes, or from committing future crimes at all? Is the punishment here strong
enough to make the guy understand? . . . The next aspect of deterrence is whether
or not other people in similar circumstances might be deterred from this type of
crime because of the type of sentence this kind of defendant gets in this situation.
So, deterrence is something that has to be considered when you’re indicating some-
body’s punishment. The thing of sending a message out of this room is not just
between me and the defendant. Society is all involved in this, so I have to justify
society’s sense of fairness and I have to think of the deterrent value of the sentence.

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Rehabilitation

Rehabilitation is an effort to end criminal behavior by “curing” offenders of their
criminality. According to this philosophy, punishment is a form of treatment
administered to criminals (MacNamara, 1977).

Advocates of rehabilitation agree with Beccaria that humans act of their own
free will, at least most of the time (Menninger, 1959). However, rehabilitation
efforts often reflect a positivist approach to crime and punishment, that is, an
approach that asserts that human behavior is at least partially determined or influ-
enced by a variety of factors. Thus, crime cannot be deterred by the mere threat of
punishment. Consider drug abuse and sales. Would any rational person use and sell
drugs when the penalties are so harsh? What about murder? Only a “crazy” person
would commit murder. This gets to the core of the rehabilitation model.

Crime occurs when “sick” people do illegal things. They may be suffering
from physical illnesses (e.g., chemical imbalances), psychological disorders (e.g.,
compulsive obsessions), addictions (e.g., drugs or alcohol), or social disorders
(e.g., inability to control their anger). Consider, for example, kleptomaniacs,
whose shoplifting results from a psychological illness. Whatever the cause, reha-
bilitation advocates argue that society owes it to itself and individual offenders to
try to cure them before releasing them back into society. The treatment sometimes
consists of administration of drugs, psychotherapy, or retraining and education
programs.

Of course, rehabilitation does not mean that we should try a few cures and
then give up and release the offender. The model assumes that if we cannot cure a
given offender, we need to “provide for his indefinitely continued confinement” to
protect society (Menninger, 1959, p. 62). It is this belief that leads advocates of the
rehabilitation model to support indeterminate sentences where offenders are
paroled (i.e., released into the community under supervision after being incarcer-
ated) after they can demonstrate that they have been cured. Karl Menninger (1959),
an eloquent supporter of rehabilitation, once said:

With more use of the indeterminate sentence and the establishment of scientific diagnostic
centers, we shall be in a position to make progress in the science of treating antisocial trends.
Furthermore, we shall get away from the present legal smog that hangs over the prisons,
which lets us detain with heartbreaking futility some prisoners fully rehabilitated while
others, whom the prison officials know full well to be dangerous and unemployable, must be
released, against our wishes, because a judge far away . . . said that five years was enough.
(pp. 63–64)

This is where many criticisms of rehabilitation arise. First, how do we know when
an offender has been cured? Many offenders who are paroled commit new crimes.
At best, this shows how difficult it is to predict with any accuracy whether individ-
uals will recidivate. Further, the rehabilitation model is based on the premise that

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we can cure offenders, and some doubt whether this assumption is accurate
because of the difficulty in reliably predicting human behavior. Research evaluat-
ing a variety of programs intended to rehabilitate has not given cause for optimism;
however, the evidence does show that some rehabilitative efforts are quite effective
for particular types of offenders (e.g., Walker, 2001).

Second, how is the nature of the treatments utilized? Some inmate writers,
like Jack Abbott (1981), have written of the terrors of the medical model. Some
offenders have been forced into painful medical procedures (e.g., lobotomies or
drug treatments) that may not be successful or whose side effects are worse than
the disease, all in the name of finding a cure for crime.

Third, some employees of the criminal justice system doubt that rehabilita-
tion can be effective in reducing crime if participation in programs is voluntary
(MacNamara, 1977), and argue that therapies undertaken involuntarily are less
likely to be effective. Still others contend that we cannot force criminals to undergo
therapies that might not work. This is complicated by the fact that a number of
criminals do not want to be cured of what the rest of society determines to be crim-
inal. To illustrate, consider my friend Sylvia, who showed me some blurry pictures
she had taken. When I told her to stand farther from her subject when using her
instamatic camera, she told me that she liked the pictures somewhat blurry because
they looked more surreal. She considered the photos to be artistic and did not want
the problem to be ended! Like Sylvia and her preference for out-of-focus photo-
graphs, alcoholics and drug addicts often do not feel that their preference for sub-
stance use needs to be cured. Some criminals, such as prostitutes and gamblers,
may not even view their activities as criminal and resent efforts by those appointed
by the justice system to prescribe suitable remedies.

Other people have taken issue with the idea of judges surrendering their sen-
tencing power to psychologists and social workers. They feel that judges have been
given the power to sentence and should fulfill that obligation. Criminals should not
be given the opportunity to avoid culpability by turning to social workers who can
absolve them of their responsibility by arguing that crime results from the actions
of “sick” people who need to be healed, so criminals cannot be blamed for their
actions (if criminals cannot be held responsible, then they certainly should not be
penalized for their crimes).1 Some scholars argue that this medicalized view is
untrue; not all criminals commit crimes attributable to one or more assorted mal-
adies, and those who do break laws deserve to be punished for their transgressions
(Dalrymple, 1992; Wasserstrom, 1980). See Box 13.2 for two interview segments
that illustrate rehabilitation as a sentencing philosophy.

Incapacitation

Incapacitation involves attempts to physically restrain offenders from victimizing
others. For the most part, incapacitation is the belief that we can prevent crimes by

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isolating offenders from the rest of society, thus preventing them from committing
further crimes against the populace (Blumstein, Cohen, and Nagin, 1978, p. 64).
When offenders are behind bars, they cannot victimize the rest of society. Prosecu-
tors have long understood the importance of incarceration in their efforts to protect
the public from offenders (Kunkle, 1989).

Adherents of incapacitation argue that the benefits of incarceration need not
include deterrence or rehabilitation (Blumstein, Cohen, and Nagin, 1978, p. 64).
The value of prison, in and of itself, is protection of the public. Under this philoso-
phy, it is irrelevant whether prison-based treatment programs work or potential
offenders are deterred by the prospects of going to prison. The value of incapacita-
tion lies in its ability to restrain offenders who would otherwise victimize society.

In theory, incapacitation is not limited to prison or jail. House arrest and com-
mitment to in-patient drug treatment programs, for example, keep offenders off the
streets for the duration of their sentence. Nonincarcerative approaches may also

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Punishment Philosophies 393

BOX 13.2

Judges’ Comments on Rehabilitation

This is the second in a series of five boxes that present extracts from interviews with eleven
judges to illustrate each of the five sentencing philosophies. As you read the following interview
segments, think about how they demonstrate rehabilitation.

People to me that are into substance abuse are really abusing themselves. . . . When
they have been arrested three or four times, it is a despairing thing because it’s hard
to find help for them. If you can get those people in a day-to-day facility, you can
change their outlook toward using these substances. I am concerned if we are really
doing any good with putting people in jail for Health and Safety Code violations.
Some of these sentences are a mandatory ninety days. These people go right out and
do crimes again and if they are not getting some kind of help, I don’t know what
good jail sentences do. I also realize that people who are abusing drugs are also
stealing, etc. It is all compounded.

In the misdemeanor range, you’re concerned that “Hey, this person isn’t a bad per-
son; they can be salvaged.”. . . You take a look at the individual defendant, whether
he has a drug problem, an alcohol problem, or he has an unemployment problem or
whatever’s causing him to do this. We have some programs, such as Domestic Vio-
lence Diversion Program, which I believe is the most successful rehabilitation type
program. Everyone that goes to this program comes back reporting how fantastic it
is. . . . It feels good to see a husband and wife smiling again with their children,
coming back with a progress report—they have it working again. Whatever the fac-
tors were that were causing the problems, this program appears to help people face
those factors and get rid of them and get on with their lives.

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serve the ideals of incapacitation. Newly developed Intensive Supervision Programs
(ISPs) may so closely monitor offenders that it is difficult for them to continue com-
mitting crimes. Innovative devices like breath-testers, which require convicted
drunk drivers to “blow clean” before starting their cars, are based on incapacitation.
Prescription drugs such as antabuse serve to prevent alcoholics from drinking
because they are made ill if they do. Regardless of its effectiveness, castration is an
incapacitation-based attempt to prevent sexual deviants from recidivating.2

Some followers of incapacitation believe that a majority of crimes are com-
mitted by relatively few individuals, and argue that crime rates will go down if
these few offenders are selectively incarcerated (e.g., Wilson, 1985). There is some
truth to this argument. Wolfgang, Figlio, and Sellin (1972, p. 88) found that
“chronic recidivists” (juveniles who had committed at least five earlier offenses)
accounted for more than half of all new offenses in their Philadelphia sample. Sim-
ilarly, Blumstein and Cohen (1987) found that one tenth of a sample of imprisoned
robbers admitted to committing seventy or more robberies a year before being
incarcerated. It appears, then, that some offenders commit crimes at a higher rate
than others. It is this rationale that underlies many “three strikes and you’re out”
policies; unfortunately, current prediction techniques are inadequate for the task of
identifying these “career criminals.”

Critics of incapacitation argue that incarceration does not prevent crime; it
merely relocates it to the inside of prisons. Many violent offenders continue to vic-
timize others while in prison. And, once they are released, nothing stops them from
resuming their criminal behavior. Further, inmates are introduced to new crimes,
such as gang membership and smuggling ventures, that they may not have commit-
ted while in the free world.

Other critics note offenders’ amazing abilities to circumvent incapacitative
measures. Some offenders on house arrest find ways to leave their homes unde-
tected. Forced prescriptions cannot work when offenders do not take them. Breath-
testers installed in drunk drivers’ cars cannot determine who is “blowing clean”
(the offender or a friend or family member recruited to blow into the device) before
igniting the ignition. Even castration does not always work; Robert Martinson
(1974, p. 36) once remarked, “Where there’s a will, apparently there’s a way”
when discussing rapes committed by castrated men. In short, incapacitation cannot
work if offenders bypass their sentences. Of course, as offenders find ways to out-
wit their sentences, the criminal justice system is quick to refine the conditions or
devices that were designed to incapacitate.

Another criticism of incapacitation is that policies such as preventive deten-
tion, which were designed to incapacitate, raise grave due process questions. Crit-
ics argue that because even the most sophisticated techniques currently available
are not very accurate at predicting behavior, incapacitation policies result in the
unnecessary confinement of many people who would not actually have committed
a future crime. See Box 13.3 for two interview segments that illustrate incapacita-
tion as a sentencing philosophy.

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Retribution

Retribution is one of the most misunderstood punishment theories. Some people
mistakenly believe that retribution, also referred to as just deserts, justifies any
penalty, no matter how harsh.

Retribution is based on the concept of lex talionis (“an eye for an eye”). Dur-
ing the very earliest eras of justice, what we now call crimes were treated as private
wrongs; victims or their families were allowed and expected to exact vengeance
against the individuals who caused them harm (e.g., Schafer, 1977). This resulted
in blood feuds, which impeded civilization’s progress, so the existing system of
justice was transformed into one in which offenders were tried and punished by
their communities, rather than relying on informal norms of justice that had
resulted in blood feuds. In many respects, punishment of offenders by the govern-
ment is society’s replacement of the right of the victim or the victims’ family to
seek vengeance (except through civil suits).

Ancient law and justice codes reflect the initial stages of this transformation
and clearly illustrate the idea of “an eye for an eye.” In ancient times, one who
wronged someone else met with the same fate he had bestowed on his victim (e.g.,
knocking out the tooth of an equal meant that one’s own tooth would be knocked
out). Other penalties were tied to the crime itself, such as barbers who had their
hands amputated for destroying a slave’s markings. Lex talionis is best seen in the
following excerpt from the Code of Hammurabi (circa 1700 B.C.):

• If a son strike his father, his hands shall be hewn off.
• If a man put out the eye of another man, his eye shall be put out.
• If he break another man’s bone, his bone shall be broken.

According to retributive theory, we punish offenders to take away any advantages
they might have gained from their illegal acts. Under this way of thinking, criminals

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Punishment Philosophies 395

BOX 13.3

Judges’ Comments on Incapacitation

This is part of a series of five boxes that present extracts from interviews with eleven judges to
illustrate each of the five sentencing philosophies. As you read the following interview seg-
ments, think about how they demonstrate incapacitation.

Especially on . . . DUI cases, we are looking at protecting the public by suspending
licenses. . . . If we have a very dangerous person, it is important that he is put some-
where so the public will be safe.

In terms of sentences, violent crimes . . . generally warrant incarceration for protec-
tion of the victims, and not only [the] victim of that crime, [but] potential victims
who may testify.

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deserve to be punished for the wrongs they have committed (Hawkins, 1944; Kant,
1797/1995). In fact, this is the only acceptable justification for punishment, accord-
ing to retribution theory. Offenders must be guilty of the crime for which they are to
be punished and may only be given the amount of punishment that they deserve
(Hawkins, 1944; von Hirsch, Wasik, and Greene, 1989). It would be unacceptable,
for example, to harshly penalize parking violators simply because society wants to
rid itself of this problem.

Supporters of retribution argue that it is morally wrong to allow a guilty party
to escape punishment (Hawkins, 1944). Plato (circa 380 B.C./1953), in his dia-
logue, Gorgias, argued that because punishment cleared the conscience that a
criminal should “run to the judge, as he would to the physician, in order that the
disease of injustice may not be rendered chronic” (p. 573). Punishment, then, is
something to which mankind is entitled. To allow the guilty to avoid punishment is
to deny them the dignity of choosing their actions, a dignity expressly reserved for
man (Hawkins, 1944; Morris, 1968).

Retribution does not allow for the punishment of innocent parties or for the
discipline of those who for some reason cannot be held responsible for their
actions (Morris, 1968). The insane, for example, should not be punished for
actions tied to their mental illness. Further, the crimes must result from voluntary
actions (Berns, 1989). Even the ancient Code of Hammurabi recognized that some
people would commit crimes for which they should not be punished (e.g., uninten-
tional injuries caused during a quarrel were not punished if the offender paid the
victim’s physician’s fees).

By punishing offenders, we restore the balance society seeks and satisfy soci-
ety’s desire for revenge (Berns, 1989; Hawkins, 1944). Criminals have misappro-
priated society’s benefits for themselves and have thus gained an “unfair
advantage” over law-abiding citizens (Morris, 1968). Punishment based on retribu-
tion removes that advantage and attempts to restore balance to society, while estab-
lishing proper parameters of behavior (Grupp, 1971, pp. 5–6). Adherents of
retribution theory assert that, in some respects, offenders punished under retribu-
tion undergo a limited form of rehabilitation. Punishing “bad” people for miscon-
duct places their activities outside the boundaries of what “good” people do. When
offenders realize that they have done wrong and deserve their punishment, they
“ought to amend [themselves] accordingly” (Hawkins, 1944, p. 206).

Critics of retribution argue that “just deserts” is outdated, that as a civilized
society, we have moved beyond the need for simple vengeance. And, punishing
some people simply because they have done wrong does not address the underly-
ing problem. These critics argue that withholding necessary treatment from offend-
ers is not the solution to crime.

Other critics argue that it is impossible to set up a satisfactory punishment
scale. While it is easy to say that offenders should receive no more punishment
than they deserve, how much do they deserve? Such scales, once created, cannot

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take into account offenders’ differing roles and motivations in offenses. In short,
retribution-based policies do not recognize as different the actions of thieves who
steal bread to feed their families and thieves who steal to feed their illicit drug
habits. At the heart of retribution is a sense of deservedness that requires individu-
alized sentencing that recognizes offenders’ differing culpabilities. See Box 13.4
for two interview segments that illustrate retribution as a sentencing philosophy.

Restoration

Restorative justice is by no means a new philosophy. In fact, it is “as old or older”
than retribution. In ancient times, crimes were considered violations of other people.
It was not until the twelfth century that offenses took on a new meaning, that of
crimes against the king or government (Umbreit, 1994, p. 1). Before this time, pun-
ishment served retributive and restorative functions.

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Punishment Philosophies 397

BOX 13.4

Judges’ Comments on Retribution

[Regarding factors used in sentencing]: Way down the line, but it’s there and hope-
fully it doesn’t happen very often, is just vengeance. This asshole has beaten up on
fifteen different girlfriends and you don’t want him to do it again, but you want to
hurt him, too, because he’s an asshole. I’d say that’s true only where someone has
inflicted physical pain on someone else. Then, you want that victim to know you
couldn’t horsewhip the son-of-a-bitch, but you gave him a horsewhip sentence. . . .
I don’t like people who hurt people who are physically less strong than they are.
And hammering someone in that situation may be a deterrent, but probably not, but
it feels good. You have to admit it; it just does. If you read about some outrageous
behavior in some news article and something bad happens to the actor, it kind of
makes you feel warm inside. Vengeance isn’t just the Lord’s. We all have it. Not a
need for it necessarily, but we all like to feel that the rascal got what was coming to
him. And, we all hope the price is painful enough that it might deter him, but
whether it does or not, he got what was coming to him.

[Regarding sentencing philosophy]: Since it’s a misdemeanor, it’s not going to be in
the paper, [so] no one is going to read about it and it’s not going to deter other peo-
ple except [those] in the courtroom. . . . My primary concern is the person before
me, that this person get punished appropriately for what they did, and their back-
ground and the whole picture of this person.

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It was around 1116 that King Henry I redefined offenses as crimes against the
king or government by declaring in his Leges Henrici that the crown should be com-
pensated for crimes because offenders had breached “the king’s peace” (Stubbs,
1900, 1906). This important distinction meant that the king was entitled to the
compensation that was once given to victims. To that existing system of restitution,
King Henry I appended the notion of fines payable to the king as head of govern-
ment; this supplementary sanction made offenders responsible for both restitution
and fines. As time progressed, however, fines began to replace restitution in toto.
Victims of crime were still entitled to sue for damages, but otherwise lost out on
automatic restitution that was once standard. With King Henry I’s interventions (he
also established a system of sheriffs and justices of the peace whose duties were to
oversee the crown’s interest in criminal sanctions), the government began to have a
vested interest in justice outcomes. As those interests became normal, restoration
began to fade as the dominant justice policy.

Returning to the Code of Hammurabi (circa 1700 B.C.), we can see how some
penalties were designed to try to make victims whole again through payments. If a
building collapsed due to poor workmanship, the architect was expected to replace
any slaves who were killed or any goods that were destroyed. Many harms were
translated into specific monetary payments to be made to the victims, as in the pay-
ment of ten shekels if a “freed man strike the body of another freed man.” Careless
crop watering usually meant paying for any damages, as in the following passages:

• If any one open his ditches to water his crop, but is careless, and the water
flood the field of his neighbor, then he shall pay his neighbor corn for his
loss.

• If a man let in the water, and the water overflow the plantation of his neigh-
bor, he shall pay ten gur of corn for every ten gan of land.

Under restorative justice, we return to the concept of crime as a violation of
another person. The victim, then, becomes central to the sentencing process.
Instead of punishing criminals, the intent of restorative justice is to “restore” vic-
tims through restitution in the form of money or service. Sometimes, offenders are
asked to “undo” their crimes, as in the case of juveniles ordered to remove graffiti.
Other offenders are ordered to make symbolic restitution through community
service.

Restoration also seeks to restore offenders. Through restoration of the victim,
the offender “makes good” on his crime and restores himself to his pre-crime sta-
tus. Sometimes, the two parties are brought together in victim–offender mediation
sessions where together they design a restitution plan (Umbreit, 1994). It is during
these sessions that victims can be returned to a sense of safety as the offender
describes why a particular victim was targeted; generally, the selection of a victim
involves a pragmatic choice by the offender (e.g., burglarizing the first house with-

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398 The Punishment Dilemma

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out cars in the driveway) versus a clear case of stalking or following as many vic-
tims believe to be the case.

Perhaps an example will clarify how restoration occurs when offenders undo
the specific harm they caused. Some years ago, a retired police officer caught a
group of teens spray-painting one of the buildings on his property. He was more
frustrated than furious when he caught them, because of the expense and time he
would have to take to fix the damage, which was visible from the street. But instead
of attacking the youths, he asked if they would be willing to paint over their graffiti
with a mural of his choosing. Possibly skeptical at first, the kids still agreed to do
so, and the mural was enjoyed by the retired officer and all who drove past until the
paint was faded by the sun and elements. The victim in this case was happy with
the outcome and his new mural, and the kids gained the satisfaction of knowing
that they had “done good” for a local community member and learned that their
artwork would be appreciated if it was limited to appropriate situations. Most
importantly, however, under restorative justice, the victim was made whole again
and the youths were able to undo their criminal acts and regain their status in the
community as nondelinquents. In this case, of course, the harm was easily
repaired, and some critics of restoration argue that “undoing” other offenses, espe-
cially crimes of violence, is much harder to accomplish. To those critics, some
restorative justice policymakers counter that the principles they advocate have
been successfully implemented even in homicides.

Other critics of restoration complain that ordering offenders to pay their vic-
tims does not make them whole. Instead, it teaches us that every crime has a dollar
value, and that mere financial payments can restore victims. Victims of violent
crimes often complain that restitution payments, usually paid at a rate of a few dol-
lars a week, do not make up for their losses in dignity or feelings of safety. Some-
times, victims protest that such schemas can readily return offenders to their
pre-crime status, but cannot really make bona fide breakthroughs in restoring vic-
tims to that same plateau.

Others complain that the program only works for a few offenders. That is,
that some criminals will continue to victimize others unless there are penalties in
addition to returning what they have taken or reimbursing individuals for their out-
of-pocket expenses. These critics complain that restitution alone lets criminals off
lightly, and may teach offenders that crime has little cost. See Box 13.5 for two
interview segments that illustrate restoration as a sentencing philosophy.

AVAILABLE SANCTIONS

No matter what the sentencing agent’s preference or what the stated punishment
philosophy is, the endorsed sanction must be available before it can be imposed on
any offender. A judge, for example, may feel a certain offender requires intensive

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therapeutic intervention, but if there are no programs available or no funds to pay
for such programs, the judge will have to choose another sentence.

Before the twentieth century, punishments were quite harsh, even for minor
offenses. Penalties tended to be corporal (i.e., physical and applied to the body,
such as whippings), and were sometimes gruesome by today’s standards of

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400 The Punishment Dilemma

BOX 13.5

Judges’ Comments on Restoration

This is the last of five boxes that present extracts from interviews with eleven judges to illustrate
each of the five sentencing philosophies. As you read the following interview segments, think
about how they demonstrate restoration.

I don’t think we do rehabilitation on a local level. . . . In the cases where I put them
[offenders] on probation, then the purpose that I do have in mind is either to provide
restitution for a victim who has been damaged or to force the defendant to be sub-
ject to some stricter rules.

[The concept of] nalyeeh3 is not necessarily property or money; it’s what you can
do to redeem yourself. [(Interviewer questions are in italics) So, “that which is nec-
essary”?] If you say, “Okay, I will go to counseling and at the next squaw dance
[i.e., traditional ceremonial gathering], I will make a public apology to you,” you
know that is my way of redeeming myself. [Therefore, an agreement to go into
counseling and the speech at the squaw dance could be nalyeeh?] Yes; then I say,
“Okay, now I feel better now. You understand what you did and now I know what
you are going to go for. We won’t expect this problem any more.” [What if I volun-
teered to cut wood for an elder? Would that be nalyeeh, too?] Yes, it would be
something you do for somebody to make them feel right or what they say [to] set
things right. [So, if I hurt you, I could cut someone’s wood near (here)?] Yeah, or I
might have you cut wood for all the squaw dances for the summer. [That’s a lot of
woodcutting] . . . To a big degree, the size of the nalyeeh would be set to where a
[victim] feels comfortable that it [i.e., the offending behavior] is not going to hap-
pen again and they are [at] ease. I know that a lot of times, judges will say nalyeeh
means money and I will say, “No, not from where I was raised. It was different
things.”. . . The main idea was harmony, . . . to restore that feeling and also to
restore the harmony of the family and of the community.

The first ten interviews (including all of those from the previous four boxes) were with municipal
court judges in California. The final extract is from an interview with a criminal court judge of
the Navajo Nation. A number of Native American tribes have returned to their restorative jus-
tice roots. The Navajo Nation operates a Peacemaking Court that relies on the use of traditional
justice methods to restore harmony to individuals, families, and communities. In peacemaking,
victims and offenders meet with a mutually chosen peacemaker to discuss how to “undo” the
harms suffered by victims and how to prevent future harms from occurring. The program is suc-
cessful and enjoys a low recidivism rate. (Yazzie and Zion, 1996, pp. 170–172)

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decency. Prehistoric sanctions tended to rely on banishment or ritualistic execu-
tions to placate any gods who would be angry about the broken norm. These penal-
ties were designed to remove the offender from society so that the gods would not
bring unfavorable conditions to the rest of the society due to harboring the norm-
breaker.

Early European sanctions typically fell into one of four general classifica-
tions: humiliatory, corporal, death, or exile. Humiliatory penalties were used for
minor offenses and included the cucking stool (i.e., offenders were seated at their
own front doors to expose them to ridicule); branks (which were odd contraptions
that fit over one’s head, usually used for women who scolded their husbands or
who spread rumors); stocks and pillories; the jougs (which were iron collars fas-
tened around offenders’ necks to hold them on a platform); drunkards’ cloaks (bar-
rels worn by habitual drunks); scarlet letters (e.g., those worn by adulterers such as
Hester Prynne in Hawthorne’s The Scarlet Letter); riding the stang (a curious
penalty often reserved for domestic abusers in which the offender was paraded
through town seated on a donkey or other beast of burden while townspeople fol-
lowed beating pots and pans and blowing horns and singing poems about the
abuses the offender heaped on the victim); and other penalties designed to shame
offenders into conforming with societal norms (Andrews, 1890/1991).

More serious crimes demanded harsher sentences. Corporal penalties were
also common and included whipping, branding, boring of the offender’s tongue,
cutting off an offender’s ears, and other bodily penalties. Legal decision-makers in
early Europe were also quite fond of slow, painful executions of a variety of styles,
sometimes preceded by torture. One reason penalties were so harsh was the belief
that crime and disorder stemmed from the devil’s influence, and must be punished
harshly (see Box 13.6 for an illustration from 1616 that shows the presumed influ-
ence of the devil on a woman who killed her two children, aged two and five). And,
for those who were adjudged incorrigible, what better penalty than to exile them to
the New World or other colonies that needed citizens?

Fortunately far from our historical roots, today’s judges tend to impose finan-
cial and supervision-oriented sanctions. Discussed below are several sanctions,
including noncustodial, custodial, and other punishments.

Financial Penalties: Fines and Restitution

Fines involve paying a sum of money to the government after breaking a law. Fines
have been used for a long time and were originally a way to raise money for the
British Crown. Now, a certain portion of fines is sometimes earmarked for special
accounts, such as victims’ compensation funds, in addition to supplementing road
construction accounts, general welfare monies, and similar government resources.
Most individuals have paid fines for parking tickets and other minor offenses. In the
lower courts, fines are the most frequently applied sanction (Lindquist, 1988, p. 26;
Mileski, 1971, p. 501, President’s Commission Task Force Report on the Courts,

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1967, p. 18). Felony courts also impose fines, although far less often (Eisenstein and
Jacob, 1977, p. 274). Federal courts nearly always impose some form of fine.

Borrowing an idea from Europe, a few American jurisdictions have begun to
experiment with day fines. This special type of fine is adjusted to the offender’s
ability to pay (Winterfield and Hillsman, 1993). The way they work is simple in
theory, but hard to put into practice. Each criminal violation is assigned a value in
day-fine units. Let us assume for the purposes of illustration that shoplifting is

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402 The Punishment Dilemma

BOX 13.6

The Devil and Margret Vincent

This 1616 illustration, taken from the cover of a leaflet that discussed the infanticides commit-
ted by Margret Vincent, demonstrates clearly the belief held by individuals of that time that
Satan influenced those who were not strong in their Christian faith to commit crimes. The pub-
lication mentions that she was “assisted by the Devill” and that she was “more cruell than the
Viper, the invenomd Serpent, the Snake, or any Beast whatsoever” (Anonymous, 1616, p. 4).

Transport yourself back in time to the early 1600s. How should we sentence someone
who acts at the behest of the devil and does his “evil” bidding by strangling her own children
with cordage provided by Satan himself? Only the harshest sentences were considered accept-
able in order to deal with this omnipresent and diabolic force.

FIGURE 13.3 Source: Anonymous, 1616 (cover).

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assigned a day-fine unit value of three days, and that Joe and Joanne each shoplift a
CD from a music store and are fined three day-fine units. Joe makes $30 a day at
his job, so his fine would be $90. Joanne makes $50 a day at her job, so her fine
would be $150.4 The reasoning behind fining the different offenders different
amounts is that Joe and Joanne should feel the same effects on their pocketbooks.
Just because Joanne has a higher paying job should not mean that she has to work
fewer days to make the money to pay her fine.

Of course, this can mean extremely high fines for minor offenses when laws
are violated by very wealthy individuals. When Nokia executive vice president
Anssa Vanjoki was caught going 15 miles above the speed limit in Helsinki, Fin-
land, he was assessed a $103,000 fine, and Internet entrepreneur Jaakko Rytsola
was ordered to pay a $74,600 traffic fine (Turula, 2002). The reason the fines were
so high is that the jurisdiction relies on day fines and the two mens’ incomes topped
several million dollars a year.5

Sometimes confused with fines is restitution, because both result in offend-
ers paying money out of their pockets. Restitution differs from fines, however, in
that it is paid to the victim, typically as part of an attempt to achieve restorative jus-
tice. Because the payments are often made through the court or probation office,
offenders may feel they are simply paying a higher fine. Restitution is supposed to
reimburse victims for damages or for medical and counseling expenses they incur
due to the offenses, or for other costs associated with being victimized. Some vic-
tims are reimbursed for the time they had to take off work and for daycare costs for
their children while they attended hearings. Some offenders, especially juveniles,
are assigned to work for the person or business they victimized. One young man,
for example, found himself cleaning a bookstore’s bathrooms every weekend for a
year when he was caught shoplifting valuable comic books.

Community Service

Prior to 1971, indigent offenders who had been ordered to pay fines were jailed,
hence the old adage “thirty dollars or thirty days.” The U.S. Supreme Court ruling
Tate v. Short (1971), however, outlawed that practice so that only offenders who
could afford fines but refused to pay them could be sent to jail for nonpayment.
Tate v. Short meant that an alternative sanction had to be utilized for indigent
offenders and community service filled that need. Those sentenced to community
service are assigned to work without compensation for various nonprofit or gov-
ernmental agencies. Typical community service placement sites include charities,
schools, parks, and programs that service youths or elders (Meeker, Jesilow, and
Aranda, 1992, p. 200). Through the work they provide, offenders make symbolic
restitution to the community they harmed by their criminal actions. Community
service had been used on a fairly consistent basis since the 1960s but increased in
popularity after Tate v. Short. This type of sentence has been called a panacea by

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Available Sanctions 403

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some because there are many benefits associated with community service: jail
overcrowding is minimized, the offender may learn basic work skills or discipline,
and the community benefits from the labor of the offender (Klein, 1988, pp.
173–78). The work completed by these offenders is useful to the placement agen-
cies; for example, estimates of the value of the work provided by community ser-
vice workers assigned to work for the California Transit Authority in just two
counties in California (Los Angeles and Ventura) indicate that they provide free
labor worth more than $30 million a year (Webber and Nikos, 1992).

Probation

Probation is another common sanction used for both misdemeanors and felonies.
Probation owes its development to retired Boston shoemaker John Augustus, who
in 1841 asked a local judge to assign a drunk to him for supervision and education
in the trade of making shoes. Instead of jailing the drunk, the judge agreed to let
Augustus try his hand at reformation. Augustus’ intervention was successful so the
court assigned him to work with more drunks. Those humble beginnings set the
stage for the popularity of probation—a sanction that now applies to more than
three million offenders (Bonczar and Glaze, 1999).

Unlike other sanctions, probation is “not designed to provide punishment”
(McDonald, 1992, p. 189). Instead, its goal is rehabilitation of offenders through a
combination of supervision and assistance through social programs. As evidence
of the push for programming, 41 percent of all probationers in 1996 were ordered
into drug or alcohol treatment as a condition of their receiving probation (Bonczar,
1997). Offenders of all types receive probation terms, even violent offenders. In
fact, more than half (57 percent) of those who are put on probation were convicted
of a felony (Bonczar and Glaze, 1999), and one in 100 homicide offenders receives
probation (Bonczar, 1997). The major dilemma faced by probation departments
across the nation is staff shortages, which affect their ability to supervise and reha-
bilitate offenders (Wice, 1985, p. 22). See Figure 13.1 for a graph showing trends
in the use of probation, parole, and incarceration.

There are several forms of probation. The first, informal probation, can be
just that—very informal. Sometimes, offenders are only told to avoid future
involvement in crime and are required to mail in monthly postcards so their proba-
tion officers can keep track of them. Individuals on informal probation may only
encounter problems if they end up back in court, at which time they may face addi-
tional penalties. The second form, regular probation, involves more supervision,
usually regular in-person visits and telephone contacts in addition to periodic
unannounced visits to the offender’s home or workplace. Regular probation often
involves mandated programming that is tailored to the offender’s specific needs
(e.g., completion of substance abuse programs or personal counseling). As case-
loads have increased, however, probation officers have found themselves with less

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404 The Punishment Dilemma

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and less time to devote to supervision, meaning that many probationers get little
individualized attention.

In response to the criticisms that probation is a “slap on the wrist” that does
not work because large caseloads prevent probation officers from supervising their
clients, a number of jurisdictions have developed intensive supervision programs
(ISPs). In addition to increased contact with probation officers, these programs typ-
ically include rigorous conditions (e.g., routine and/or random drug testing). Some-
times, ISP is combined with day reporting services to ensure that high-risk
offenders receive programming they need coupled with the supervision the commu-
nity deserves. True to its being designed primarily as a rehabilitation program,
stakeholders in one survey reported that the most important purpose of day report-
ing services was to provide offenders with access to the treatment services they need
to prevent their return to crime (Latessa et al., 1998, pp. 12–13).6 Evaluations of the
effectiveness of ISPs are inconclusive, however; when compared to traditional pro-
bation, some ISP programs appear to reduce recidivism while others may actually
increase it (Gowdy, 1993, p. 5). The increased recidivism for ISP participants, how-
ever, may be strongly related to the increased attention and supervision such offend-
ers are given; the more regular contact and more consistent drug tests certainly net
some crimes that could easily escape detection in an informal or regular probation
setting. ISP is often augmented with electronic monitoring, as discussed below.

Custodial Sentences (Incarceration and Home Confinement)

There are also custodial sentences, including prison and jail. Prisons are state
operated (or federally operated for federal offenses) and only those convicted of

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Available Sanctions 405

500,000

3,000,000

2,500,000

2,000,000

1,500,000

1,000,000

500,000

0
1985 1987 1989 1991 1993 1995 1997

Probation

Prison Parole

Jail

Number of
adults

FIGURE 13.1 Trends in the use of probation, parole, jail, and prison Source: Bureau of Justice
Statistics, 1997, p. iii.

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felonies may be sent to prison. The history of prison is interesting. In early Rome
(A.D. 533), it was illegal to imprison offenders after conviction—only those await-
ing trial could be held in detention facilities. England’s use of prisons was mainly
limited to debtor’s prisons where those who owed debts were held until the arrears
were satisfied (a strong incentive for one’s family to meet the financial obliga-
tion!). Prison as a sentence for crimes (rather than a holding place for those await-
ing trial or execution) was strongly advocated by the famous Quaker reformer,
William Penn, in 1682. It is important to recognize that until the seventeenth cen-
tury, penalties were very harsh and many offenses resulted in execution. Penn felt
that imprisoning offenders was more humane than executing them; he argued
instead that they could be housed in facilities where they could read the Bible and
reform themselves. After Penn died in 1718, there was regression back to corporal
sanctions and executions, but the Quakers lobbied the legislature and a law was
passed in 1776 allowing imprisonment for all crimes except murder, rape, treason,
and arson.

The first prison in America, the Walnut Street Jail, was established in 1790 in
Philadelphia and emphasized penitence and solitary confinement. This approach
(i.e., stimulus deprivation, or the privations of solitary confinement twenty-four
hours a day) drove several inmates insane, so the practices were abandoned in
favor of those that allowed silent interaction with other inmates in common work
areas. Now, there more than two million prisoners in the United States alone, lead-
ing some to comment on the “prisonization of America.” Overcrowding is a major
factor that limits use of prison as a sanction. See Figure 13.1 for a graph showing
trends in the use of probation, parole, and incarceration.

Instead of prison, those who are convicted of misdemeanors may be sent to
jail. Jails are locally operated by counties, and are usually for sentences of less
than one year.7 Because they operate within the counties they serve, jails are more
flexible than prisons so that offenders may receive weekend sentences (i.e., where
offenders serve their time on the weekends but are released during the week), or
work release or study release sentences (i.e., where offenders are incarcerated at
night but may work or go to school during the day). Jails are also overcrowded,
limiting their use as a sentence. See Figure 13.2 in Box 13.7 for a graph showing a
ten-year breakdown of jail and prison sentences.

A special form of custodial sentence is home detention, a sanction that, as of
the mid-1980s, is increasingly coupled with electronic monitoring (Renzema and
Skelton, 1990). In fact, Gowdy (1993, p. 5) argues that home confinement may be
enjoying a new popularity because the availability of electronic monitoring is
believed to make the sanction “practical and affordable.” Electronic monitoring,
rumored to have been invented by Stan Lee for use in a Spiderman comic,8

involves offenders wearing electronic anklets or wristlets that alert supervisory
authorities if they leave their homes. Although not everyone feels electronic moni-
toring is a panacea, they still see it as appropriate for certain offenders, such as

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406 The Punishment Dilemma

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Available Sanctions 407

2,000,000

1,600,000

1,200,000

800,000

400,000

0
1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 June

30,
2000

Federal prisons

State prisons

Jails

131,496 inmates
in federal prisons

1,179,214 inmates
in state prisons

621,149 inmates
in local jails

Number in
custody

From year-end 1990 to midyear 2000, the nation’s prisons and jails grew by 783,157
inmates, an annual increase of 5.6 percent.

FIGURE 13.2

From year-end 1990 to midyear 2000:
• The rate of incarceration in prison and jail increased from 1 in every 218 U.S. residents to 1 in

every 142.

• State, federal, and local governments had to accommodate an additional 82,438 inmates per
year (or the equivalent of 1,585 new inmates per week).

In the year ending June 30, 2000:
• The number of inmates held in jail rose by 15,206, in state prison by 27,953, and in federal

prison by 13,501. In the three largest state prison systems, the number dropped in California
(down 33 inmates) and New York (down 2,269 inmates), while it rose in Texas (up 890
inmates).

On June 30, 2000:
• Privately operated prison facilities held 76,010 inmates (up 9.1 percent since year-end 1999).

• Local jails were operating 8 percent below their rated capacity. In contrast, at year-end 1999
state prisons were between 1 percent and 17 percent above capacity, and federal prisons were
32 percent above their rated capacity.

• An estimated 12 percent of black males, 4 percent of Hispanic males, and 1.7 percent of white
males in their twenties and early thirties were in prison or jail.

• There were 110 female inmates per 100,000 women in the United States, compared to 1,297
male inmates per 100,000 men.

Source: Beck and Karberg, 2001, p. 1.

BOX 13.7

Graph Showing a Ten-Year Breakdown of Jail and Prison Sentences

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those who are severely ill, disabled, or whose presence in their home is essential to
others. Said one lower court judge about the sanction:

You gonna ask me about my favorite topic, which is electronic confinement? . . . You know
what I call it? Commit-a-crime-go-to-your-room. No, I don’t like it. No, I don’t do it. I have
used it quite frequently with people who are extremely ill; I’ve used it with a lot of AIDS
patients.

Creative Sanctions

In addition to the customary penalties, there are a number of creative sanctions
employed by judges who are frustrated with the inability to fashion appropriate
responses from available sentencing options. Creative sentences involve such sanc-
tions as ordering doctors to perform medical services at a free clinic, having busi-
ness owners give lectures or mentor minority businesses to help their companies
survive, directing offenders to establish organizations or funds, ordering drunk
drivers to install breathalyzers in their cars to prevent them from driving drunk, and
requiring offenders to write letters of apology or essays. There was even a judge
who sentenced a man who starved his dog to death to live on bread and water alone
for a weekend.

A number of innovative penalties focus on embarrassment or shame, such as
requiring drunk drivers to display bumper stickers on their cars identifying them as
such, or ordering people to make public apologies for the harm they have caused.
Some judges now hope to “remind” offenders of the harm they have perpetrated by
ordering them to carry pictures of those they have killed in drunk-driving accidents
or to pay $1.00 a month to the victim.

Creative penalties tend to be imposed either in special cases or by judges who
make a hobby of innovative sanctioning. One famous judge who designs and
imposes creative sanctions is Judge Ted Poe, who has served as a criminal court
judge in Houston, Texas, since 1981. His sentences have included public apologies
delivered from the city hall steps, offenders carrying signs to apologize to busi-
nesses they have victimized, mandated signs posted on child molesters’ lawns
explaining that no children are allowed on their property, and a hairdresser who
was ordered to give free haircuts at centers that serve the disabled (Connelly,
1999). See Box 13.8 for some other creative sanctions.

The Death Penalty

The most severe penalty that can be applied by any court is the death penalty.
Although it is allowed in thirty-eight states, it is relatively uncommon. Despite this
rarity, however, the death penalty has strong symbolic value and affects plea bar-
gains and defendants’ decisions to seek trial by jury.

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408 The Punishment Dilemma

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At present, there are five methods of executing those convicted of capital
offenses. The most common method, by far, is lethal injection. The remaining
methods are electrocution, lethal gas, hanging, and firing squad. See Table 13.1 for
a breakdown of execution methods. In the vast majority of states, defendants must
be charged with murder to even face the death penalty, but a few states allow capi-
tal punishment for other offenses. See Table 13.2 for a list of offenses that qualify
for the death penalty.

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Available Sanctions 409

BOX 13.8

A Few Creative Sanctions Imposed During February, 19

As you read about these three sentences, all imposed during February of 1998, think of the sen-
tencing philosophies each could address. Some of the sentences illustrate more than one sen-
tencing philosophy.

Man must carry photo of victim (2/11/98, Associated Press)
A twenty-one-year-old Oklahoma man who killed a young woman when his vehicle crashed
into another automobile was sentenced to carry the victim’s photo with him for a year in addi-
tion to serving 20 days in jail. He was not under the influence of drugs or alcohol at the time of
the accident, but had run a stop sign, so he pled guilty to negligent homicide. The victim’s
mother had requested that he be ordered to carry her photograph.

Man ordered to post DUI sticker (2/21/98, Associated Press)
After serving a five day jail sentence and losing his driver’s license for drunk driving, a 36-year-
old Kansas man with multiple priors for drunk driving requested that a judge reinstate his
license. The judge agreed and told him he could get his driver’s license back in a few months if
he complied with an interesting condition: he had to put a “bright” red-and-orange sticker on
the rear window of his car that said “Convicted DUI.” The judge told him that he faced a year in
jail if he removed the sticker.

Thief ordered to send birthday card (2/22/98, Associated Press)
When a twenty-year-old Pennsylvania man stole a stereo system out of a car he had broken into,
he was arrested for that crime and several others. After he had pled guilty to theft, receiving
stolen property, and conspiracy to commit theft, the judge noticed that the automobile break-in
occurred on her birthday. So he would not quickly forget the crime, she ordered him to send her
a birthday card for two years in addition to paying restitution to his victims and completing
twenty-three months of probation.

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TABLE 13.1 Method of Execution, by State, 1999

Firing
Lethal injection Electrocution Lethal gas Hanging squad

Arizonaa,b New Hampshirea Alabama Arizonaa,b Delawarea,c Idahoa

Arkansasa,d New Jersey Arkansasa,d Californiaa New Hampshirea,e Oklahomaf

Californiaa New Mexico Florida Missouria Washingtona Utaha

Colorado New York Georgia Wyominga,g

Connecticut North Carolina Kentuckya,h

Delawarea,c Ohioa Nebraska
Idahoa Oklahomaa Ohioa

Illinois Oregon Oklahomaf

Indiana Pennsylvania South Carolinaa

Kansas South Carolinaa Tennesseea,i

Kentuckya,g South Dakota Virginiaa

Louisiana Tennesseea,i

Maryland Texas
Mississippi Utaha

Missouria Virginiaa

Montana Washingtona

Nevada Wyominga

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410 The Punishment Dilemma

Note: The method of execution of Federal
prisoners is lethal injection, pursuant to 28 CFR,
Part 26. For offenses under the Violent Crime
Control and Law Enforcement Act of 1994, the
method is that of the state in which the conviction
took place, pursuant to 18 U.S.C. 3596.
a Authorizes 2 methods of execution.
b Arizona authorizes lethal injection for persons
whose capital sentence was received after 11/15/92;
for those sentences before that date, the condemned
may select lethal injection or lethal gas.
c Delaware authorizes lethal injection for those
whose capital offense occurred after 6/13/86; for
those whose offense occurred before that date,
the condemned may select lethal injection or
hanging.
d Arkansas authorizes lethal injection for those
whose capital offense occurred on or after 7/4/83;
for those whose offense occurred before that date,

the condemned may select lethal injection or
electrocution.
e New Hampshire authorizes hanging only if
lethal injection cannot be given.
f Oklahoma authorizes electrocution if lethal
injection is ever held to be unconstitutional, and
firing squad if both lethal injection and
electrocution are held unconstitutional.
g Wyoming authorizes lethal gas if lethal injection
is ever held to be unconstitutional.
h Kentucky authorizes lethal injection for persons
whose capital sentence was received on or after
3/31/98; for those sentenced before that date, the
condemned may select lethal injection or
electrocution.
i Tennessee authorizes lethal injection for those
whose capital offense occurred after 12/31/98;
those whose offense occurred before that date
may select lethal injection or electrocution.

Source: Snell, 2000, p. 5.

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TABLE 13.2 Capital Offenses, by State, 1999 01
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12
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41

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Available Sanctions 411

Alabama. Capital murder with a finding of at
least 1 of 10 aggravating circumstances (Ala.
Code § 13A-5-40 and § 13A-5-49).

Arizona. First-degree murder accompanied by at
least 1 of 10 aggravating factors.

Arkansas. Capital murder (Ark. Code Ann. 5-10-
101) with a finding of at least 1 of 10 aggravating
circumstances; treason.

California. First-degree murder with special
circumstances; train wrecking; treason; perjury
causing execution.

Colorado. First-degree murder with at least 1
of 14 aggravating factors; treason. Capital
sentencing excludes persons determined to be
mentally retarded.

Connecticut. Capital felony with 9 categories of
aggravated homicide (C.G.S. 53a-54b).

Delaware. First-degree murder with aggravating
circumstances.

Florida. First-degree murder; felony murder;
capital drug trafficking.

Georgia. Murder; kidnaping with bodily injury
or ransom where the victim dies; aircraft
hijacking; treason.

Idaho. First-degree murder; aggravated
kidnaping.

Illinois. First-degree murder with 1 of 15
aggravating circumstances.

Indiana. Murder with 16 aggravating circum-
stances (IC 35-50-2-9). Capital sentencing
excludes persons determined to be mentally
retarded.

Kansas. Capital murder with 7 aggravating
circumstances (KSA 21-3439). Capital
sentencing excludes persons determined to
be mentally retarded.

Kentucky. Murder with aggravating factors;
kidnaping with aggravating factors.

Louisiana. First-degree murder; aggravated rape
of victim under age 12; treason (La. R.S. 14:30,
14:42, and 14:113).

Maryland. First-degree murder, either
premeditated or during the commission of a
felony, provided that certain death eligibility
requirements are satisfied.

Mississippi. Capital murder (97-3-19(2) MCA);
aircraft piracy (97-25-55(1) MCA).

Missouri. First-degree murder (565.020 RSMO).

Montana. Capital murder with 1 of 9 aggravating
circumstances (46-18-303 MCA); capital sexual
assault (45-5-503 MCA).

Nebraska. First-degree murder with a finding of
at least 1 statutorily-defined aggravating
circumstance.

Nevada. First-degree murder with 14 aggravating
circumstances.

New Hampshire. Six categories of capital
murder (RSA 630:1 and RSA 630:5).

New Jersey. Purposeful or knowing murder by
one’s own conduct; contract murder; solicitation
by command or threat in furtherance of a
narcotics conspiracy (NJSA 2C:11-3C).

New Mexico. First-degree murder in conjunction
with a finding of at least 1 of 7 aggravating
circumstances (Section 30-2-1 A, NMSA).

New York. First-degree murder with 1 of 12
aggravating factors. Capital sentencing excludes
persons determined to be mentally retarded.

North Carolina. First-degree murder (N.C.G.S.
14-17).

Ohio. Aggravated murder with at least 1 of 8
aggravating circumstances. (O.R.C. secs.
2903.01, 2929.01, and 2929.04).

Oklahoma. First-degree murder in conjunction
with a finding of at least 1 of 8 statutorily defined
aggravating circumstances.

Oregon. Aggravated murder (ORS 163.095).

Pennsylvania. First-degree murder with 18
aggravating circumstances.

South Carolina. Murder with 1 of 10
aggravating circumstances (§ 16-3-20(C)(a)).
Mental retardation is a mitigating factor.

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South Dakota. First-degree murder with 1 of
10 aggravating circumstances; aggravated
kidnaping.

Tennessee. First-degree murder.

Texas. Criminal homicide with 1 of 8
aggravating circumstances (TX Penal Code
19.03).

Utah. Aggravated murder (76-5-202, Utah Code
annotated).

Virginia. First-degree murder with 1 of 12
aggravating circumstances (VA Code § 18.2-31).

Washington. Aggravated first-degree murder.

Wyoming. First-degree murder.

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412 The Punishment Dilemma

TABLE 13.2 Capital Offenses, by State, 1999 (continued)

Source: Snell, 2000, p. 3.

The death penalty is by far the most controversial sanction available on the
sentencing palette. Those who support it argue that it has a strong deterrent value,
and often cite research by Isaac Ehrlich (1975) whose research found that every
execution in the United States resulted in “7 or 8 fewer murders” (p. 414). However
his study has been criticized by many scholars (e.g., for incorrectly using statistics)
and other research has found no reductions in homicide associated with use of the
death penalty (e.g., Lempert, 1983; Sellin, 1959). Other death penalty supporters
focus on the cost savings over imprisoning offenders for life in prison, but those
individuals do not take into consideration the significant cost of appeals. Yet a third
group of supporters argues that murderers deserve to die; this retribution-based
argument is supported by surveys of the general population.

On the other side of the coin are those who oppose the death penalty, who cite
the irreversibility of the penalty—the execution of an innocent person cannot be
“undone.” One research team (Bedau and Radelet, 1987) examined capital cases
between 1900 and 1985 and found that an innocent person had been convicted in
350 cases and that 139 of those parties were given the death sentence; of those 139
innocent individuals, twenty-three were executed. Of course, it is expected that
some errors will creep into the justice system, but even one wrongfully executed
person a year is considered to be too many by death penalty opponents. The now
famous Innocence Project started by Barry Scheck and Peter Neufeld in 1992 at
the Cardozo Law School (at Yeshiva University in New York) has responded to
requests from thousands of inmates who seek their assistance in proving their inno-
cence; the Project has successfully demonstrated the innocence of a number of
convicts by relying on testing of DNA evidence found at crime scenes. The work
by the Innocence Project and its fellow projects have clearly demonstrated that at
least some convictions were wrongful, casting doubt on many others.

A second camp of death penalty opponents argues that the death penalty itself
is cruel and unusual punishment, and that modern standards of decency prove the
death penalty to be archaic, but polls of the public show that many citizens con-
tinue to support the death penalty despite any evolving standards. A third camp of IS

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opponents notes that the penalty is discriminatory because blacks are more likely
than whites to receive death and those who kill whites (versus blacks) are more
likely to get the death penalty, as is discussed below. Supporters of the death
penalty counter this argument by pointing out that those whose crimes are more
heinous deserve the death penalty, and blacks may commit more violent crimes
(e.g., Green, 1964).

The death penalty has undergone quite a legal battle, and several cases from
the past few decades have nearly eradicated it. The first of those legal challenges
was the 1968 decision rendered in Witherspoon v. Illinois. The defense in the With-
erspoon case argued that the defendant’s death penalty jury was biased because
people who had indicated that they had any objection to the death penalty were
excluded from the jury under an Illinois law that allowed challenges for cause “of
any juror who shall, on being examined, state that he has conscientious scruples

N
L

Available Sanctions 413

A belief in divine intervention may have encouraged some early jurists to impose harsh sentences,
because the innocent were expected to be rescued by divine intervention. Truly innocent people could
even be saved from execution. When Anne Greene was “miraculously” revived in 1650 after being
taken down from the scaffold from which she was hanged for killing her newborn, a contemporary
scholar argued that she must certainly have been innocent because she had been prevented from
dying; that she truly had not known she was pregnant and had delivered a stillborn child, as she had
claimed at trial (Watkins, 1651). Similarly, this early 1500s English wall painting in Winchester
Cathedral shows the Virgin Mary supporting Ebbo on the scaffold. Sentenced to die for a crime he did
not commit, Ebbo’s death was prevented by the divine Virgin who held him up for three days to
demonstrate his innocence. The Virgin and other divine beings are also credited with restoring
unjustly amputated hands and intercepting in a multitude of wrongfully imposed death sentences.
SOURCE: Courtesy of Jon’a Meyer.

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against capital punishment, or that he is opposed to the same.” Using that law, the
prosecution had eliminated “nearly half ” of the potential jurors (1968, p. 512). The
defense felt this was unfair because those who support the death penalty were both
more likely to vote “guilty” and were more likely to impose the death penalty.

The Supreme Court agreed with Witherspoon that it was unfair to have a
penalty phase jury (the jury that decides between imposing the death penalty or
other sentences, such as life in prison) that favored capital punishment, but held
that states could exclude those who could never consider giving the death penalty
(e.g., because of their strong moral beliefs against capital punishment). This case
was very important because it meant that potential jurors could no longer be
excluded “simply because they voiced general objections to the death penalty.”
Those who were unable to ever consider capital punishment could still be excluded
because they would be unable to consider all the options available to them (i.e.,
they would automatically exclude death without regard for the crime). If you have
ever seen the political buttons that say “Witherspoon excludable” on them, they
show that the wearer would never impose the death penalty on anyone, no matter
what the facts in a case were, meaning that they could legally be excluded from a
punishment phase jury in a capital case.

The Supreme Court did not, however, agree with Witherspoon’s argument
that those who support the death penalty are more likely to convict, and would
therefore be unfit to judge guilt. Witherspoon had based that claim on three
research studies showing those who favored capital punishment were also more
likely to believe the prosecution and vote “guilty.” The court was not swayed by
those particular studies, however, possibly because none of the three had yet been
published and two involved college student samples. In the end, the court held that
the “presently available information” was “too tentative and fragmentary to estab-
lish that jurors not opposed to the death penalty tend to favor the prosecution in the
determination of guilt” (Witherspoon v. Illinois, 1968, p. 517).

Later that same year, the Eighth Circuit Court of Appeals (which hears
appeals from Arkansas) heard the Maxwell v. Bishop case in which a black man
who had been sentenced to death for rape9 demonstrated through historical evi-
dence that capital punishment had been used in rape cases almost exclusively
against blacks who had raped whites (89 percent of executed rapists were black).
The appeals court held that historical evidence is not enough, that a defendant must
show that discrimination existed in his or her particular case. Of interest, the U.S.
Supreme Court vacated the judgment and sent the case back to the federal district
court two years later for that court’s decision on whether Maxwell should get a new
sentencing hearing, but the rationale had nothing to do with racial bias. Instead, the
high court was dismayed to learn that at least seven jurors had been excluded from
Maxwell’s penalty phase jury on the basis of “grounds held impermissible in the
Witherspoon case” (1970, p. 264). See Box 13.9 for the answers that resulted in the
exclusion of three of the potential jurors.

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414 The Punishment Dilemma

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The third major attack on the death penalty came three years later in McGau-
tha v. California (1971). The defense in McGautha focused on the guidelines given
to death penalty jurors, or rather the lack of them. This issue had been raised in
Maxwell v. Bishop (1970), but was essentially ignored by the U.S. Supreme Court
because its focus was on whether jurors had been improperly excluded from his
trial, but McGautha raised them again. The lack of guidelines, McGautha argued,
made it impossible to determine why a particular person received the death
penalty. Many offenders on death row had committed crimes that were less severe
than those who were sent to prison. In some cases, co-defendants received different
sentences for the same crime. In other words, McGautha argued, the death penalty
is arbitrary and unfair because there is little ability to predict what penalty a given
murderer will receive. The Supreme Court, however, said that the argument did not
present sufficient legal grounds for overturning the death penalty.

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Available Sanctions 415

BOX 13.9

Witherspoon Excludables?

Although the issue was not raised by Maxwell, at least seven jurors had been excluded from his
jury based only upon the following answers they provided to questions. As you read their
answers, consider why the U.S. Supreme Court did not approve of the challenges for cause.
Could one or more of these jurors actually have been a Witherspoon excludable? How could the
trial judge have determined whether they were excludable under the Witherspoon v. Illinois
(1968) cas

Potential juror #1:
QUESTION: If you were convinced beyond a reasonable doubt at the end of this trial that the

defendant was guilty and that his actions had been so shocking that they would
merit the death penalty do you have any conscientious scruples about capital pun-
ishment that might prevent you from returning such a verdict?

ANSWER: I think I do.

Potential juror #2:
QUESTION: Do you entertain any conscientious scruples about imposing the death penalty?
ANSWER: Yes, I am afraid I do.

Potential juror #3:
QUESTION: Mr. Adams, do you have any feeling concerning capital punishment that would

prevent you or make you have any feelings about returning a death sentence if you
felt beyond a reasonable doubt that the defendant was guilty and that his crime was
so bad as to merit the death sentence?

ANSWER: No, I don’t believe in capital punishment.

Source: Quotes taken from Maxwell v. Bishop, 1970, pp. 264–265).

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Then came Furman v. Georgia (1972), the landmark decision that shook up the
country’s use of the death penalty. The defense in this case argued that the death
penalty was given in an arbitrary and capricious manner and was a violation of the
Eighth Amendment (which bans cruel and unusual punishments). Furman claimed
that juries imposed the death penalty without any real guidance, and that made the
decisions unpredictable and unfair. The Supreme Court agreed with Furman and
declared the death penalty unconstitutional as it was being administered at that time.
All death sentences in the country were immediately overturned and changed to life in
prison. That is how Robert Lee Massie was released in 1978—his sentence was con-
verted due to Furman. The Court in Furman did not say the death penalty itself was
unconstitutional, but rather that it could not be imposed in such an arbitrary manner. A
number of states, especially in the South, began rewriting their death penalty statutes
to provide guidance to juries regarding who should get the death penalty. In general,
they created a list of aggravating and mitigating factors that should be considered.

The test of the new guidelines came four years later in Gregg v. Georgia
(1976). Here, Georgia argued its new jury guidelines removed the arbitrary and
capricious element from the death penalty, so that Gregg’s sentence of death was
valid. The Supreme Court agreed that the new guidelines meant that the death
penalty was not as arbitrary and capricious as those struck down in Furman. This
allowed other states to rewrite their statutes to provide guidance to jurors. See Box
13.10 for a chart showing the number of executions from 1930 to 1999, which
shows the effect of Furman and Gregg on capital punishment.

One of the most recent substantive attacks on the death penalty came in 1987.
McCleskey v. Kemp resurrected the issue of discrimination by adding in a new fac-
tor, victim race. In this case, evidence from the famous Baldus study (named after
the primary researcher) was presented. In this study, three social science
researchers examined more than 2,000 murder cases in Georgia in the 1970s. They
found that murderers who killed whites were 4.3 times more likely to get the death
penalty than those who killed blacks, even when other factors, such as offense seri-
ousness, were statistically controlled for using multivariate statistics. The researchers
also found that prosecutors were more likely to seek the death penalty when the
defendant was black and the victim white; prosecutors opted to seek the death
penalty in 70 percent of cases involving this racial mix versus fewer than a third of
other cases (1987, p. 287). The defense argued that the death penalty statistics, in
and of themselves, demonstrated a bias in its usage. The U.S. Supreme Court took
the position seen two decades earlier in Maxwell v. Bishop (1968): Statistical dis-
crepancies do not indicate that the death penalty is unfairly imposed in any particu-
lar case. While it recognized the Baldus study as “sophisticated,” the court noted
that it did not point to discrimination against McCleskey himself:

Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the deci-
sionmakers in his case acted with discriminatory purpose. He offers no evidence specific to

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416 The Punishment Dilemma

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his own case that would support an inference that racial considerations played a part in his
sentence. Instead, he relies solely on the Baldus study. McCleskey argues that the Baldus
study10 compels an inference that his sentence rests on purposeful discrimination.
McCleskey’s claim that these statistics are sufficient proof of discrimination, without regard
to the facts of a particular case, would extend to all capital cases in Georgia, at least where
the victim was white and the defendant is black. (1987, pp. 292–293)

McCleskey was the last major general attack on the death penalty and is the most
recent case that stood a chance of invalidating the death penalty across the nation.
Capital appeals are constantly being raised, however, so the ultimate penalty may
someday be a relic of the past. Recent public opinion polls suggest that Americans
are increasingly questioning the death penalty, and its support may be decreasing
(e.g., Entzeroth, 2001; Gallup, 2000).

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Available Sanctions 417

200

160

120

0
1930 1940 1950 1960 1970 1980 1990 1999

Persons executed, 1930 –1999

Number of executions

BOX 13.10

Persons Executed, 1930–1999

As you look over this graph, notice the nearly decade-long span that was nearly devoid of exe-
cutions. It is clear that the Furman and Gregg cases had some impact on capital punishment, but
a closer look reveals that the number of executions had declined rapidly before the 1972 Fur-
man decision. What do you think could contribute to this drop?

Source: Snell, 2000, p. 11.

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HOW DO THE OPTIONS “STACK UP” UNDER THE FIVE
PUNISHMENT THEORIES?

Now that we have examined the philosophies of punishment and some available
punishment options, it is important to see how sentencing options and philosophies
are intertwined. Think about each of the sentencing options discussed in this chap-
ter and which philosophy each best reflects. Fines, for example, have little incapac-
itative value but could be effective deterrents and could also fulfill retributive
goals. Jail and prison can be excellent forms of incapacitation and also serve ret-
ributive and deterrent functions. Rehabilitation is probably best served by regular
or intensive supervision probation, whereas restoration is best served by restorative
justice initiatives such as restitution and community service.

Judges who adhere to a particular philosophy are logically more likely to pick
penalties that suit that approach. Rehabilitation-oriented judges, for example, are
more likely to rely on sentences they feel will help offenders get back on the right
track, such as probation. Retribution-oriented judges may favor jail terms (Meyer
and Jesilow, 1997, p. 108). This does not mean that judges are hemmed in by one
philosophy. Instead, judges are likely to follow the philosophy they feel is appro-
priate for the individual offenders before them (Meyer and Jesilow, 1997, p. 61).
One shoplifter, for example, may get probation coupled with a referral to social
services agencies to help him or her get a job while another finds himself or herself
in jail for the same offense. Even with these differences, however, sentencing
philosophies still affect sentences. After you figure out which options are best
suited for the five philosophies, take a look at Table 13.3 at the end of this chapter
to see how your answers compare.

CONCLUSION

In this chapter, we first looked at discretion and its role in sentencing, differentiated
the five major theories of punishment, and looked at several options available to sen-
tencing agents, including the controversial death penalty. Without discretion, judges
cannot fashion penalties, but too much discretion may be abused. An individual
judge’s sentencing philosophy may have a lot to do with the penalties imposed in his
or her courtroom, especially when discretion is sufficient to allow some leeway. A
third factor that helps determine sentences are the specific options available to judges
and the public’s perception of those options. As more and more alternatives are
developed, the sentences imposed in American courts may change dramatically.

In the next step, we will delve deeper into the art of sentencing, examining, for
example, how judges set penalties and the factors that are associated with sentences.

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418 The Punishment Dilemma

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T
A

B
L

E
1

3
.3

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o

w
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w
ay

d
o

fi
ne

s
se

ek
t

o
“c

ur
e”

th
e
cr
im

in
al

.
A
cc
ep
ta
bl
e

if
of

fe
nd
er
s

ne
ed

t
o

le
ar

n
w

or
k

sk
il

ls
o

r
w

or
k

ha
bi

ts
.

N
ot
a
cc
ep
ta

bl
e

un
le

ss
o

ff
en

de
rs

’
ne

ed
s

ar
e

m
et

. A
be

tt
er

c
ho

ic
e

s
re

gu
la

r
pr

ob
at

io
n

w
it

h
m

an
da

te
d

pr
og

ra
m

s.
A
cc
ep
ta
bl
e
fo
r

no
ns

er
io

us
o

ff
en

se
s

w
he

re
fi

ne
s

ar
e

ap
pr

op
ri

at
e.

O
ft

en
,

fi
ne

s
ar

e
en

ou
gh

o
f

a
pe

na
lt

y
to

p
un

is
h.

G
oo

d
fo

r
no

ns
er

io
us

o
ff

en
se

s
be

ca
us
e
it
i
s

a
ta

x
on

o
ff
en
de

rs
’

fr
ee

ti
m

e,
w

hi
ch

m
ak

es
it

a
p

un
is

hm
en

t.
N
ot
a
cc
ep
ta
bl
e

be
ca

us
e

it
d

oe
s

no
t

pe
na

li
ze

t
he
of
fe
nd
er

S
om

e
sa

y
it

i
s

a
sl

ap
o

n
th

e
w

ri
st

B
ec

au
se

fi
ne

s
go

t
o
th
e

st
at

e,
re

st
or

at
iv

e
ju

st
ic

e
is

n
ot

m
et

.
R

es
ti

tu
ti

on
i

s
a

be
tt

er
c

ho
ic

e
be
ca
us

e
vi

ct
im

s
ar
e
re
st
or

ed
t

o
so

m
e

de
gr

ee
a

nd
of

fe
nd
er
s

pl
ay

a
ro

le
i

n
th
e
re
st
or
at
iv

e
pr

oc
es

E
xc

el
le

nt
,

es
pe

ci
al

ly
w

he
n

of
fe
nd
er

s
w

or
k

di
re

ct
ly

f
or

v
ic

ti
m

s,
as

i
n

re
m

ov
in

g
th

ei
r

gr
af

fi
ti

f
ro

m
w

al
ls

.
N
ot

g
oo

d.
I

t
do

es
no

t
ad

dr
es

s
th

e
ne

ed
s

of
o

ff
en
de
rs

or
v

ic
ti

m
s.

IS
B
N
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

(
co

n
ti

n
u

ed
)

D
et
er
re
n
ce
P
en
al
ty
G
en
er
al
S
p
ec
ifi
c
In
ca
p
ac
it
at
io
n
R
eh
ab
il
it
at
io
n
R
et
ri
b
u
ti
on
R
es
to
ra
ti
on

R
eg

ul
ar

P
ro
ba
ti

on
w

it
h

M
an

da
te

d
P

ro
gr

m
s

In
te

ns
iv

e
S

up
er

vi
si

on
P

ro
ba

ti
on

(
IS

P
)

N
ot
v
er
y
go

od
,b

ut
be

tt
er

t
ha

n
in

fo
rm

al
p

ro
ba
ti
on

.
S

m
e

po
te

nt
ia

l
of

fe
nd
er
s

m
ay

av
oi

d
cr

im
e

so
t

he
y

w
il

l
no

t
be

f
or

ce
d

in
to

p
ro

gr
am

s
th

ey
fe

el
a

re
a

h
as

sl
e

or
ar

e
no

t
ap

pr
op

ri
at

e
fo

r
th

em
.
N
ot
v
er
y
go
od
,b
ut
be
tt
er
t
ha

n
ot

he
r

fo
rm
s
of
p
ro
ba
ti

on
.

T
he

c
on

di
ti

on
s

te
nd

t
o

be
o

ne
ro

us
(e

.g
.,

cu
rf

w
s

an
d

li
m

it
s

on
as

so
ci

at
es

)
so

s
om

e
po

te
nt

ia
l

of
fe
nd
er

s
w

il
l
av
oi
d
cr
im
e

to
av

oi
d

th
em

.
N
ot
v
er
y
go
od
,b
ut
be
tt
er
t
ha

n
in

fo
rm

al
pr

ob
at

io
n.

S
om
e
of
fe
nd
er
s

co
ns

id
er

pa
rt

ic
ip

at
io
n
in
t
he
pr
og
ra
m
s
to

b
e

a
ha

ss
le

n
ot

w
or

th
re

pe
at

in
g,

so
t
he
y
av
oi

d
fu

rt
he

r
of

fe
ns

es
. C

on
si

de
r,

fo
r

ex
am

pl
e,

le
ng

th
y

dr
un

k
dr

iv
er

e
du

ca
ti

on
co

ur
se

s.
N
ot
v
er
y
go
od
,b
ut
be
tt
er

th
an

o
th

er
fo

m
s

of
p

ro
ba
ti
on

si
nc

e
so

m
e
m
ay
av
oi
d
cr
im
e
ju
st

to
av

oi
d
th
e
so
m

et
im

es
on

er
ou

s
co

nd
it

io
ns

(e
.g

.,
cu

rf
ew

s)
. I

n
fa

ct
,w

he
n

gi
ve

n
th

e
ch

oi
ce

,s
om

e
of
fe
nd
er
s

ch
oo

se
pr

is
on

o
ve

r
IS

P,
so

it
h

as
s

om
e

de
te

rr
en

t
po

w
er

.
N
ot
a
cc
ep
ta
bl
e.
P
ro
ba
ti

on
d

oe
s
no
t

pr
ot

ec
t

th
e

re
st

o
f
so
ci

et
y,

ex
ce

pt
du

ri
ng

t
he

a
ct

ua
l

ti
m

e
of

fe
nd

er
s

sp
en

d
pa

rt
ic

ip
at

in
g

in
p

ro
gr

am
s.

A
cc
ep
ta
bl
e
if
t
he
co
nd
it
io
ns

l
im

it
of

fe
nd
er
s’

ab
il

it
ie

s
to

e
ng

ag
e

in
c

ri
m

e.
S

in
ce

i
t

is
o

ft
en

co
up

le
d

w
it

h
el

ec
tr

on
ic

m
on

it
or

in
g
an
d

cl
os

e
su

pe
rv

is
io

n,
IS

P
c

an
p

ro
te
ct
t
he
co
m
m
un
it
y.

A
pp

ro
pr

ia
te

,
es

pe
ci

al
ly

i
f

pr
og
ra
m
s
to

w
hi

ch
of

fe
nd
er
s
ar
e

se
nt

ar
e

ef
fe

ct
iv

e
in

re
du

ci
ng

re
ci

di
vi

sm
. S

om
e

pr
og
ra
m

s
al

so
ad

dr
es
s
fa

m
il

y
ne

ed
s,

su
ch

a
s

pa
re

nt
in

g
sk

il
ls

tr
ai

ni
ng

,t
hu

s
re

du
ci

ng
t

he
cr

m
in

al
it

y
of

ot
he

rs
,t

oo
.

A
pp
ro
pr
ia
te

i
f

th
e

co
nd

it
io

ns
i

nc
lu

de
re

ha
bi

li
ta

ti
on

–
or

ie
nt

ed
o

pt
io

s
su

ch
a

s
su

bs
ta

nc
e

ab
us

e
pr

og
ra

m
s.

I
n

fa
ct

,k
no

w
in

g
th

at
on

e’
s

re
la

ps
es

a
re

m
or

e
li

ke
ly

t
o

be
de

te
ct

ed
m

ay
m

ot
iv

at
e

of
fe
nd
er
s
to

p
ar

ti
ci

pa
te

f
ul

ly
in

r
eh

ab
p

ro
gr
am
s.
N
ot
a
cc
ep
ta
bl
e
be
ca
us
e

re
ha

b
pr

og
ra
m
s
ar
e
no
t

su
pp

os
ed

t
o

be
pu

ni
sh

m
en

t,
al

th
ou

gh
s

om
e
of
fe
nd
er

s
m

ay
f

ee
l

pu
ni

sh
ed

b
y

ha
vi

ng
to

p
ar
ti
ci
pa
te

i
n

th
em
.
A
pp
ro
pr
ia
te
i
f
th
e
co
nd
it
io

ns
a

re
on

er
ou

s
(e

.g
.,
li
m
it
s

on
w

ho
of

fe
nd
er
s
m
ay

as
so

ci
at

e
w

it
h
an
d

ra
nd

om
d

ru
g

te
st

in
g)

. W
he

n
gi

ve
n

th
e

ch
oi

ce
,

so
m
e
of
fe
nd
er
s
ch
oo

se
p

ri
so

n
ov

er
IS

P,
w

hi
ch

s
ho

w
s

th
at

o
ff
en
de

rs
v

ie
w

IS
P

a
s

pu
ni

sh
m

en
t.

N
ot
a
cc
ep
ta
bl
e
be
ca
us
e

pr
ob

at
io

n
ad

dr
es
se
s
of
fe
nd
er

’s
pr

ob
le

m
s,

bu
t

of
te

n
ig

no
re

s
th
e
vi
ct
im

s.
If

c
on
di
ti
on
s

in
cl

ud
e

re
st

it
ut

io
n

or
o

th
er

r
es

to
ra

ti
ve

ju
st
ic
e

in
it

ia
ti

ve
s,

th
is

o
pt

io
n

m
ay

b
e

an
e

xc
el

le
nt

w
ay

t
o

ad
dr

es
s

re
st

or
at

io
n.
A
cc
ep
ta
bl
e
on
ly
i
f
co
nd
it
io
ns
i

nv
ol

ve
pa

rt
ic
ip
at
io
n

in
re

st
or
at
iv

e
ju

st
ic
e
in

it
ia

ti
ve
s.
IS
B
N
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43
D
et
er
re
n
ce
P
en
al
ty
G
en
er
al
S
p
ec
ifi
c
In
ca
p
ac
it
at
io
n
R
eh
ab
il
it
at
io
n
R
et
ri
b
u
ti
on
R
es
to
ra
ti
on

Ja
il

T
er

P
ri

so
n

S
en

te
nc

e
G
oo

d
if

t
he

t
er

m
i

s
su

ffi
ci

en
t

to
d

et
er
ot
he

rs
f

ro
m

co
m
m
it
ti
ng

c
ri

m
es
G
oo
d
if
t
he
t
er
m
i
s
su
ffi
ci
en
t
to
d
et
er
ot
he
rs
f
ro
m
co
m
m
it
ti
ng
c
ri
m
es
G
oo
d
if
t
he
t
er
m
i
s
su
ffi
ci
en
t
to
d
et
er
th
e
in
di
vi
du

al
of

fe
nd

er
f

ro
m
fu
tu

re
c

ri
m

es
.

G
oo
d
if
t
he
t
er
m
i
s
su
ffi
ci
en
t
to
d
et
er
th
e
in
di
vi
du
al
of
fe
nd
er
f
ro
m
fu
tu
re
c
ri
m
es
.
G
oo
d
fo
r
th

e
le

ng
th

of
t

he
t

er
m

b
ec

au
se
th
e
of
fe
nd
er
i
s

ke
pt

of
f

th
e

st
re

et
s

du
ri

ng
t

hi
s

ti
m

e.
U

nf
or

tu
na

te
ly

,
so
m
e
of
fe
nd
er

s
co

nt
in

ue
t

o
co

m
m

it
cr

im
es

i
n

ja
il

,b
ut

th
ei

r
ab

il
it
y
to

d
o

so
i

s
gr

ea
tl

y
cu

rt
ai

le
d.

E
xc
el
le

nt
. P

ro
te

ct
s

pu
bl

ic
f

ro
m
of
fe
nd
er

s’
fu

tu
re
cr
im

es
. D

ra
w

ba
ck

is
t

ha
t

ot
he

r
pr

is
on
er
s

ca
n

st
il

l
be

v
ic
ti
m

iz
ed

,a
nd

so
m
e
of
fe
nd
er
s
st
il

l
en

ga
ge

i
n
cr
im

es
ag

ai
ns

t
th

e
pu

bl
ic

(e
.g

.,
sc

am
s)

.
U
na
cc
ep
ta
bl
e
be
ca
us

e
m

os
t

ja
il

s
do

n
ot

h
av

e
ne

ce
ss

ar
y

pr
og
ra
m

s
av

ai
la

bl
e
fo
r
of
fe
nd
er
s
w

ho
n

ee
d

th
em

a
nd

s
en

te
nc

es
ar

e
to

o
sh

or
t

to
br

in
g

ab
ou

t
m

ea
ni

ng
fu

l
ch

an
ge
.
G
oo

d
pr

os
pe

ct
un

de
r

in
de

te
rm

in
at

e
se

nt
en

ce
s
be
ca

us
e

m
em

be
rs

o
f

ps
yc

ho
lo

gi
ca

l
an

d
so

ci
al
w
or

k
co

m
m
un
it

ie
s

ca
n

de
te

rm
in

e
w
he
n
of
fe
nd
er
s
ar
e
re

ad
y

to
r

e-
en

te
r

so
ci

et
y.

A
cc
ep
ta
bl
e
un
de

r
de

te
rm
in
at
e
se
nt
en
ci
ng
b
ec
au
se
pr
og
ra
m
m
in

g
ca

n
be

i
m

pl
em

en
te
d.
E
xc
el
le

nt
. E

ve
n

sh
or

t
ja

il
t

er
m
s
ar
e
co

ns
id

er
ed

a
s

tr
on

g
pu

ni
sh
m
en
t.
E
xc
el
le
nt
. E
ve
n
sh
or
t
pr
is
on
t
er
m
s
ar
e
co
ns
id
er

ed
a

st
ro

ng
p

un
is
hm
en
t.
N
ot
a
cc
ep
ta
bl
e.

A
ct

ua
ll

y,
ja

il
i

s
us

ua
ll

y
op

po
se

d
by

re
st
or
at
io
n

ad
vo

ca
te

s
be

ca
us
e
th

er
e

is
n

o
at

te
m

pt
to

r
es

to
re

e
it

he
r
pa
rt

y
an

d
tw

o
w

ro
ng

s
do
n
ot
m
ak

e
a

ri
gh

t.
N
ot
a
cc
ep
ta
bl
e.
A
ct
ua
ll

y,
pr

is
on

i
s

us
ua

ll
y

op
po

se
d

by
re

st
or
at
io
n
ad

vo
ca

te
s

be
ca
us
e
th
er
e
is
n
o

at
te

m
pt

to
r

es
to

re
e

it
he

r
pa

rt
y

an
d

tw
o

w
ro

ng
s

do
n

ot
m

ak
e

a
ri

gh
t.

I
f

of
fe
nd
er
s
w
or
k
w
hi
le
i

n
pr

is
on
a
nd

se
nd

t
he

m
on

ey
t

o
th
ei
r

vi
ct

im
s,

so
m
e
re
st
or
at
io

n
is

ac
hi

ev
ed

,h
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The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

D I S C U S S I O N Q U E S T I O N S

1. Think of the last time you were tempted to violate some norm (e.g., to speed, park illegally, or
cheat in a class). Did your perception of certainty play a role in your decision to engage or not
engage in the violation of that norm?

2. How could a sentence be a specific deterrent but not a general deterrent? Could a sentence be a
general deterrent, but not a specific deterrent? Provide examples for your answers.

3. Look over the interview segments in Boxes 1–5. Each quote is from a different judge, but can you
imagine some quotes being provided by the same judge? How could this be possible?

4. Chris Cross has stolen a CD from his local music store. Can you imagine some circumstances that
would make you lean toward each of the five sentencing philosophies? For example, if you
learned that Chris was eleven years old, which philosophy might you lean toward? If you learned
that he was stealing CDs to sell so he could buy pornographic materials, which philosophy would
seem most appropriate? Think of circumstances that would cause you to lean toward each of the
sentencing philosophies.

5. Would you support bringing back any historic penalties? If so, which ones and why? If not, why?
Which legal challenges would likely be raised against the penalty you reinstituted?

6. How could probation be reformed to make it more palatable to the public? Would the changes
increase or decrease its effectiveness as a rehabilitation strategy?

7. Scan your local news or the major newswires (such as the Associated Press or Reuters) for cre-
ative sanctions. Why do you think the judges imposed those specific penalties? Could you think of
instances where creative penalties were used inappropriately? Can you imagine some creative
penalties that you think might work?

8. What current attacks on the death penalty are in the news? How much of a chance do you think
those cases have to invalidate capital punishment? Assume your opinion is being solicited at a
general forum on the death penalty. If you were allowed to state just one important rationale for or
against capital punishment, what would you say?

9. Label each of the following five quotes from actual municipal court judges with the sentencing
philosophy you feel it best illustrates. Each philosophy is used only once. Explain why you feel
the interview segment illustrates the philosophy to which you matched it.
A. [When talking about cases that are suitable for picking up trash along the highways]: A real

jerk who’s done something so bad, but it’s not serious enough to get them a felony, or not seri-
ous enough to get them jail time. But it’s such a bad thing he did, that you want to punish him,
almost eye for an eye. So, you find something for that person to do.

B. Hopefully [a sentence] keeps you from doing it again and possibly keeps somebody else from
doing the same thing again. . . . If I just slap you on the hand right now and don’t really hit you
a little hard, you’re going to do it again and your friends are going to do it again.

C. I feel that [community service sentences are] a good alternative. Most of the people we see, I
would rather have them working rather than sitting in their dayroom watching TV. They will
feel better about themselves and we are getting something physically done—cleaning up graf-
fiti, for example.

D. I’d like to have some residential treatment programs for mentally ill people who come into the
criminal justice system and can’t find access to the mental health system because they’re bor-
derline, so that they drift between the systems and end up doing lots of jail time because
they’re marginally handicapped. And, I’d like to have some long-term residential protected
placements for those people so that I can stabilize them and either reintegrate them or put
them into low supervision mental health programs, otherwise they end up in the street,
addicted to alcohol and any other street drug that they can get their hands on. I would like to
have more of those kinds of alternatives.

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E. The chief recipient of the harm of the DUIs would be the common ordinary citizen like you
and me who is around the roadway. . . . I do have to keep in mind that there are a lot of children
[and] citizens out there, and they need to be protected from this type of thing.

N O T E S

1. Remember that our system dictates that those who lack culpability should not be punished. See
the discussion of mens rea and criminal defenses in Step 2 for more information on this impor-
tant concept.

2. Unfortunately, castrated men are still able to commit sexual assaults that do not involve inter-
course.

3. “Nalyeeh” is a Navajo word for that which undoes any harm done to a person; it includes mone-
tary and other forms of compensation, apologies, promises to reform, acknowledgement of harm,
and so forth.

4. Actually, day-fine units are a percentage of one’s daily salary, so that fifteen or so units make up
one day. This allows greater flexibility in fining options, especially for very minor offenses, such
as letting one’s parking meter run out. So, while our example is designed to be easy to under-
stand, it is not entirely precise.

5. At the time of this writing, Vanjoki was appealing the fine amount because his income had
dropped dramatically in the year prior to his receiving the ticket. Rytsola had already paid the
$74,600 fine.

6. The other purposes of day reporting services were reducing overcrowding at detention facilities,
building political support for the program itself, and providing supervision for safety of the public.

7. Some offenders may be sentenced to jail on multiple misdemeanors, resulting in sentences of
more than one year. In addition, a few jurisdictions allow sentences in excess of one year for mis-
demeanors. Jails also house a number of individuals who are awaiting transfer to a state or fed-
eral prison to serve their sentences.

8. It has been reported that Albuquerque-based Judge Love read a Spiderman comic in which a
device similar to the modern-day electronic monitoring anklets was used. The judge thought the
idea might work for those on home detention and asked an engineer if he could manufacture such
a device. The rest of the story is history.

9. One could be executed for rape of an adult woman until 1977, when the United States Supreme
Court disallowed that practice in Coker v. Georgia. Louisiana still allows the death penalty for
rape, but only if the victim is under the age of twelve.

10. The study was named after the authors, professors David Baldus, Charles Pulaski, and George
Woodworth.

R E F E R E N C E S

Abbott, J.H. (1981). In the Belly of the Beast. New York: Random House.

Andrews, W. (1991). Old Time Punishments. New York: Dorset Press. (Originally published in 1890,
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Anonymous. (1616). A pittilesse mother. That most vnnaturally at one time, murthered two of her
owne children at Acton within sixe miles from London vppon holy thursday last 1616. The ninth of
May. Being a gentlewoman named Margret Vincent, wife of Mr. Iaruis Vincent, of the same towne.

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With her examination, confession and true discouery of all the proceedings in the said bloody
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Step 14

$30 or 30 Days:
Setting the Penalty

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❖

In the last chapter, we set the stage for sentencing by looking at judicial discretion
and its limits, the different punishment philosophies held by individual judges, and
the sanctioning options available to all judges. We now know that these factors
play an important role in the eventual sentences imposed on offenders. This chap-
ter takes up where we left off and discusses the art and process of sentencing itself.

By the end of this chapter, you will understand how judges fashion penalties
for those who are convicted of crimes. You will know the role of the pre-sentence
investigation report, and will recognize the influences of other factors on sen-
tences. You will understand the mechanics of a sentencing hearing and how it
resembles and differs from a trial. Finally, you will be able to discuss discrimina-
tion in sentencing and some reforms that have been suggested to eradicate it.

SENTENCING IS A DIFFICULT TASK

Once a defendant has been convicted, the court must then turn its attention to estab-
lishing an appropriate penalty. This process, known as sentencing, is generally
believed to be a judge’s most difficult task (President’s Commission on Law
Enforcement and the Administration of Justice, 1967, p. 141; Wice, 1985, p. 145).
Indeed, consider for a moment that you are a judge who has been assigned the task
of determining what to do with a young man who has shoplifted a CD player from a
department store. It is his first conviction. Your goal is to tailor a sentence to the spe-
cific offender before you, one that will show him that society disapproves of his
actions and will deter both him and others from future crimes, but that considers any
mitigating factors that may be present in his life. Will you send the thief to prison?
Most state statutes say you can if the CD player is worth enough to be classified as a
felony (e.g., whereas most state laws say that goods must be valued at $400 or more
for grand theft, Virginia considers theft of property worth more than $200 to be a

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felony). Would you send him to jail for a shorter term of incarceration? Will you
instead order him to work as a volunteer in a non-profit organization? What about
probation? What are you going to do? These are the same questions that many
judges ask themselves every day.

Despite the difficulty of sentencing, there is little preparation of judges for
this task (Wice, 1985, p. 143), who must instead rely heavily on other judges to
teach them the ropes of the robes or learn such items on their own (Alpert, 1981).
Some judges depend on each case’s attorneys to help them decide suitable sen-
tences, but attorneys are seldom impartial and often have their own interests at
stake. Those judges who do receive training often feel that the typical two-day pro-
gram is not enough. In the end, judges are seldom taught how to sentence, what
factors are important, and what to consider when imposing sentences. One federal
judge, Marvin Frankel (1973), greatly criticized this system:

They [judges] receive almost no instruction pertinent to sentencing. They may hear some
fleeting references to the purposes of criminal penalties—some generalities about retribution,
deterrence, etc. But so far as any intentional consequences of their legal education are
concerned, they are taught by people and exposed to curricula barren of even food for
thought about sentencing. (p. 13)

Despite the limitations on judges’ training for sentencing, it is still a necessary part
of the court process. Few other court activities are as important to offenders as the
sentences they receive. Society, too, has a vested interest in whether penalties pre-
vent crime. The remainder of this chapter will examine how penalties are deter-
mined, which factors are used in sentencing, whether discrimination exists in
sentencing, and how sentencing laws have changed over recent years.

PRE-SENTENCE REPORTS AND THE PROCESS OF SENTENCING

In theory, sentencing is a well-planned, time-consuming task. The court sets a sen-
tencing date, typically a month or two after conviction. During this time, a proba-
tion officer spends as much time as necessary to prepare a thorough, useful
pre-sentence report that incorporates the probation officer’s professional assess-
ment of the offender (Klein, 1988). This report is distributed to the judge, prosecu-
tor, defense attorney, and defendant, who carefully read the report before the
sentencing hearing. At least, that is how the process is supposed to move along. In
practice it tends to be a great deal more harried, with individuals paying as much
attention as their busy schedules will allow.

Because there is a high rate of agreement between judicially imposed sen-
tences and the recommendations made by probation officers, it is important to take
a few minutes to discuss the issues surrounding pre-sentence reports.

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Pre-Sentence Investigation Reports: What Are They?

The Pre-Sentence Investigation report (PSI) contains a variety of information
about the offender and his or her offense and also presents a professional opinion
concerning an appropriate penalty. PSIs are not requested in every case; this is
especially true for cases adjudicated in the lower courts (Alfini, 1981, p. 8). Some
judges request PSI reports when they feel they do not have enough information to
determine a just sentence (Blumberg, 1967, p. 137). In cases where judges know
little about offenders and their offenses, the PSI may be the primary source of
information on which the ultimate sentence is based. For this reason, they are par-
ticularly useful in cases that are plea bargained.

Some probation departments have specialists who prepare PSIs, whereas oth-
ers have a more vertical approach in which the probation officer who would actu-
ally be assigned to supervise the probationer completes the investigation and
writes up the PSI (Henningsen, 1981). Some jurisdictions even allow privately pre-
pared pre-sentence reports (Immarigeon, 1985), which routinely offer to the court
creative sentencing options, such as one team did when it recommended that a
rabbi convicted of fraud either establish a high school program focusing on Jewish
education or “take charge of a Committee on Holocaust Studies” (United States v.
Bergman, 1976, p. 500).1 In addition to regular PSI reports, there is a shorter form
called a selective PSI report that “contains only essential information” (Hen-
ningsen, 1981, p. 35). Regardless of the type of form implemented in a given case,
the PSI should always be as honest, objective, and thorough as possible.2

Pre-Sentence Reports: When Are They Completed?

Pre-sentence investigations are prepared after a defendant has been convicted or
after she or he has agreed to plead guilty. This procedure is followed for four
important reasons (Henningsen, 1981). First, the PSI report involves many sensi-
tive questions of family, friends, and employers that may represent an unnecessary
invasion of the defendant’s privacy if he or she is acquitted at trial. Second, it is the-
oretically difficult for defendants to plead not guilty and then to cooperate and
admit guilt to their probation officers. Third, a PSI report could not be admitted
into court before sentencing anyway, because it could be prejudicial to the judge or
jury. Finally, the report would be a needless use of scarce probation resources if the
defendant is ultimately acquitted.

There are other times when it may be difficult to complete a thorough pre-
sentence investigation. For example, even after conviction, some defendants will not
admit their guilt to probation officers because they have appeals pending (Frankel,
1973, p. 27). It would not be in defendants’ best interests to provide probation offi-
cers with detailed confessions while maintaining their innocence during their
appeals. In order to demonstrate their appropriateness for lenient penalties, however,
offenders must admit their culpability to their offenses and express feelings of

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Pre-Sentence Reports and the Process of Sentencing 431

remorse. This happened when a New York judge said he would consider a plea bar-
gain for three months in jail and five years of probation only if the defendant in a
vehicular manslaughter case had no serious prior convictions and “he demonstrates
sufficient contrition and indicates remorse when the probation department conducts
the pre-sentence investigation” (Breakey, 2000).

Contents of the PSI

The PSI contains considerable information that judges may use when deciding
sentences. First, a one-page summary of the offender’s demographic characteris-
tics is presented. This page, sometimes called the “face sheet,” lists such informa-
tion as the defendant’s age, marital status, attorney’s name, and sentencing date.
The report then details the charges against the defendant and the penalties possible
under statutory law. If probation is available, the report will note this.

The PSI also presents information regarding the defendant’s past arrests and
convictions. This section of the report may be a few lines or may extend several
pages, and serves to show whether the offense was a rare occurrence or evidence of
an individual’s dedication to a life of crime.

A very important part of the PSI provides information on the instant offense
(i.e., the offense for which the offender is currently being sentenced). First, the
report presents the official version of the offense, generally gathered from police
reports. This is followed by the defendant’s version of the offense, which can serve
to show any mitigating circumstances or the offender’s acceptance of culpability.
Statements from victims and/or police officers may be included in this part. Any
mitigating or aggravating circumstances also will be detailed here.

The next major part of the report is a case history of the defendant. Generally,
this information can help the judge view the defendant as an individual. Informa-
tion about the defendant’s family history, education, employment, religion, mili-
tary service, financial information, interests and activities, and physical and mental
health status (including any possible addictions) is included in this section.

At the conclusion of the report, the probation officer makes a sentencing rec-
ommendation on the basis of his or her professional assessment of the offender and
the offense. Judges do not have to follow the recommendations, but the advice is
generally weighted heavily (Ebbesen and Konečni, 1981; Henningsen, 1981). One
reason that reliance on probation officers’ recommendations may be discretionary
is that the quality of the PSI reports would have to be policed much more closely if
they were mandatory (Jones, 1981, p. 549). There is evidence that the courts have
already considered this possibility. If a death sentence is based even in part on
information contained in a PSI, for example, the U.S. Supreme Court has ruled that
the information must be disclosed to the defense so the defendant can “deny or
explain” the contents (Gardner v. Florida, 1977).

Box 14.1 presents a portion of Erik Menendez’s PSI (Erik was the younger of
two brothers who were convicted of murdering their parents in California). The

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Pre-Sentence Reports and the Process of Sentencing 433

BOX 14.1

Portions of Erik Menendez’s PSI report

Superior Court of California County of Los Angeles
Probation Officer’s Report

Defendant’s name(s): Erik Galen Menendez Age: 25
Address (present): Los Angeles County Jail Birthdate: 11/27/70
Sex: M Race: W, White

[. . . many other descriptors here, including custody status and sentencing judge]

Charged with the crimes of (include priors, enhancements or special circumstances):
I & II: 187 (a) PC (Murder)

Further alleged
190.2 (A) (15) PC (Committed while lying in wait)
190.2 (A) (3) PC (Committed multiple murders)
III. 181 (1) PC (Conspiracy to commit murder)

Convicted of the crimes of (include priors, enhancements or special circumstances): Same

[. . . other information here, including dates of conviction and arrest, etc.]

Elements and relevant circumstances of the offenses:
The defendants conspired together and murdered Jose Enrique Menendez (age 45) and Mary
Louise “Kitty” (Andersen) Menendez (age 48), their parents at their Beverly Hills home. . . .
On the night of August 20, 1989, the defendants loaded their guns with rounds of 4 buck each.
At about 10:00 or 10:15 p.m., the defendants burst into the family den where the victims were
sitting on the couch. All ten rounds were fired at the victims and all but one found their
marks. . . . Because victim “Kitty” appeared to be still moving, the defendants then went to the
co-defendant’s car where the defendant retrieved one or two shells of birdshot. He gave the
shell to the co-defendant who returned to the scene of the crime and shot victim “Kitty” in the
face at point blank range. After picking up the empty shells, they left to get rid of the guns and
bloody clothing and attempted to establish an alibi by meeting with a friend. When they were
unsuccessful in establishing contact with this person, they returned to the house and called the
Beverly Hills Police Department at 11:47 p.m. to report the murders. After being questioned by
the police, they returned to the house.

Personal history:
Substance abuse: No record, indication, or admission of alcohol or controlled substance abuse.
Type residence: Apartment Length of occupancy: 4 months Rent: $1,750
Residential stability last five years: Good
Formal education: He graduated from Beverly Hills High school in June, 1989.
Employment status: Unemployed
Employment stability last 5 years: N/A
Types of previous employment: None
Recommendation: It is recommended that probation be denied and that the defendant be
sentenced as prescribed by law.

Source: Adapted from Nidorf (1996).

PSI contains all of the parts discussed above, including the probation officer’s rec-
ommendation at the end. When you read the excerpted report, think about each of
the elements and the role that it plays in the sentencing process. In the end, both
brothers were sentenced to two consecutive life terms without parole.

THE SENTENCING HEARING

Sentencing Hearings Compared to Trials

In some respects, the sentencing hearing may be compared to a fact-finding trial.
Sentencing agents, whether judges or juries, may hear from character witnesses
(e.g., the defendant’s family and friends) or from victims (e.g., victim impact state-
ments). These witnesses may testify at sentencing hearings; however, they do not
testify about what they saw or heard. Instead, they tell the court about their feelings
regarding the offender or his or her actions. In rare cases, defendants may call eye-
witnesses whose testimony is “highly relevant” and who are likely to be truthful
when they testify; for example, in one case the U.S. Supreme Court upheld the tes-
timony of one eyewitness who testified that someone other than the convicted mur-
derer had admitted to the killing (Green v. Georgia, 1979).

The defendant may also speak at the hearing, called exercising one’s right to
allocution (Hill v. U.S., 1962), although judges nearly always impose whatever
sentences they had tentatively assigned to the case before the sentencing hearing
(Frankel, 1973, p. 36). Defendants can also try to demonstrate mitigating circum-
stances (e.g., that there was no intention to distribute the drugs found in the defen-
dant’s house at the time of his or her arrest), but the burden of proof at this stage is
on the defendant (Walton v. Arizona, 1990). This is an importance difference: at
trial, the burden of proof is on the prosecution. After conviction, the burden
switches to the defense to prove any mitigating factors or to demonstrate that
aggravating factors were incorrectly applied.

The defendant is not the only person the judge or jury may hear from during a
sentencing hearing. In most states, the victim, or victim’s family, may also speak at
the sentencing hearing. Input from the victim or family members is typically
included in the pre-sentence investigation, but most states also allow victims to
make a victim impact statement (VIS) in court. Every state allows some form of
VIS, ranging from written statements read in court to oral statements to more cre-
ative options, such as picture or video collages set to music. Ruled acceptable by
the U.S. Supreme Court in Payne v. Tennessee (1991), VISs allow the justice sys-
tem to pause and focus on the victim and to acknowledge the impact of the crime
on his or her life. VISs are not without controversy, however, as some scholars
question whether they will inappropriately introduce emotionalism into the sen-
tencing process. VISs are discussed in greater detail in Step 8.

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There are other important differences between trials and sentencing hearings.
First, the purpose of the sentencing hearing is to establish the proper penalty rather
than determine guilt, and its focus is to maximize the amount of information avail-
able to the sentencing agent. This means that information does not have to pass the
strong criteria used for admission as evidence in a trial.

Unlike one’s right to trial by jury, defendants have no right to be sentenced by
juries; indeed, judges may overrule the sentences imposed by juries in states whose
state legislatures have enacted laws permitting this (McMillan v. Pennsylvania,
1986) even in capital cases (Spaziano v. Florida, 1984). Such overrides are not
common, but they do happen. In Joseph Spaziano’s case (mentioned above), the
jury voted for life imprisonment, but the judge overruled their recommendation
and instead imposed the death penalty.3 The Spaziano case, of course, involved a
very rare sentence change. When judges overrule jury sentences, it is usually in the
direction of leniency; for example, imposing a life sentence despite a jury’s recom-
mendation that a defendant receive the death penalty.

Likewise, in most states, defendants have no right to cross-examine witnesses
who testify at their sentencing hearings because this may impede the testimony of
intimidated witnesses (Williams v. New York, 1949). The convicted offender has the
right to be present during their testimony, but cannot cross-examine the witnesses.

A fourth difference between trials and sentencing hearings is the level of
proof required. Because guilt was established beyond a reasonable doubt for the
defendant’s conviction at trial, evidence presented at the sentencing hearing need
only meet the civil standard of preponderance of evidence (McMillan v. Pennsylva-
nia, 1986). It is also important to point out that the exclusionary rule does not apply
to sentencing hearings. This means that evidence that was excluded at trial may be
presented at the sentencing hearing. In other words, that 35 kilos of cocaine that
was excluded from your trial after the judge ruled it was illegally seized because
the police did not have probable cause to search your vehicle’s trunk could very
well end up on the evidence table at your sentencing hearing.

Judicial Enhancement of Sentences

Judges may enhance sentences under many circumstances, according to the U.S.
Supreme Court. First, judges who believe that defendants committed perjury,
regardless of whether this is true, may enhance the sentences (United States v.
Grayson, 1978). Defendants who refuse to cooperate with authorities (e.g., refusing
to name one’s drug suppliers) may find themselves facing more serious penalties
than their counterparts who shared this information (Roberts v. United States,
1980). The reasoning behind these two enhancements is that telling the truth in
court and cooperating with the authorities are ways to show that one has repented
and has begun the journey toward rehabilitation. Lying and refusing to participate in
the further detection or punishment of crime, on the other hand, are proof that one is

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The Sentencing Hearing 435

not ready for lenience. How do judges know when they are being lied to? They often
rely on their past experiences with other defendants and cases, but there is still an
element of guesswork to it and that disturbs some judges. One judge, when asked
what he would request if there were a Santa Claus of courts, told one of the authors
he would ask for a truth dial because it would make his job much easier (see Box
14.2 for his quote and quotes from two other judges on the topic of lying).

It is not surprising that prior convictions can be used to enhance sentences,
but most individuals do not know that prior crimes can be held against defendants
even if they were never convicted (Williams v. New York, 1949). In the District of
Columbia, defendants’ sentences can be increased even if they were acquitted of
prior charges (United States v. Boney, 1992)! These apparent contradictions are
allowed because the level of proof used at sentencing hearings is lower than that
required to establish criminal guilt at trial. One judge sentenced an Arizona man
convicted of a nonfatal drive-by shooting to twelve years in prison in part because
of his own belief that the young man’s previous acquittal was an error on the part of
the jury (see Box 14.3 for more details).

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436 $30 or 30 Days: Setting the Penalty

BOX 14.2

Three Lower Court Judges’ Comments on Lying in Court

As you read the following excerpts from interviews with lower court judges, think about how
these judges view lying and the problems it poses for them. How is perceived perjury tied to sat-
isfaction with career and how could it affect verdicts or sentences?

A criminal court judge:
[If there were a Santa Claus of courts, I would ask for] a truth dial. I’d just like to
have a little thing that, if you were talking, I could point it at you and if you’re
telling the truth it’s blue and if you’re not, it’s red. And then I’d just know. That
would make my job a lot easier. If you could sit here and know who’s telling the
truth and who isn’t, your job would be a whole lot easier.

Another criminal court judge:
I tell people I am lied to every day of my life. One thing I have to do, when I leave,
is to leave my job behind me.

A judge who presides over civil court trials:
There are some situations where judges lose their objectivity and I guess towing
companies are one of my weak spots because I’ve seen so [much] crummy lying.
And, you sit back and say, “Maybe this guy will be different.” [But,] on the first
three or four sentences out of his mouth, you know he’s going to make up some
wild scenario how that person’s wheel fell off two miles down the road after he
came out and changed the tire or how this car that had no dents in it, all of a sudden,
down at the tow yard, its fender is bashed in or valuable property that was in the
trunk somehow mysteriously disappeared.

FACTORS IN SENTENCING

In theory, sentences are based on a combination of legal factors, including the seri-
ousness of offenses for which the defendant has been convicted. Long ago, Cesare
Beccaria (1775/1983) noted that sentence severity was not always based solely on
the legal merits of criminal cases. Instead, sentences appeared somewhat capri-
cious; elites received leniency while commoners faced severe sanctions.

Interest in sentencing did not die with Beccaria. Current researchers are still
trying to understand how sentencing takes place. Many have searched for bias in
sentencing and a number have found evidence that it exists. Other researchers have
joined in the fray and argue that sentences are based on the legal merits of the
cases, rather than any supposed biases. In general, factors that influence sentencing
can be divided into three categories: legal, extra-legal, and organizational. The next
three sections examine these factors in greater detail.

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Factors in Sentencing 437

BOX 14.3

Previous Acquittal Used to Enhance Sentence

To many observers, the defendant wore “a smirk and an attitude of bored indifference” during
his many court hearings on assault and battery charges stemming from a drive-by shooting.
Even if there was no smirk, there was no doubt that the judge was less than thrilled with the
young man’s attitude in court and toward life in general. The judge demonstrated his disap-
proval of Gonzales’ crimes when he sentenced him to the maximum term possible under Ari-
zona state law, twelve years in state prison without a chance of parole. Gonzales probably
expected a more lenient sentence, since he had no criminal record—or did he?

Before the sentence was imposed, Gonzales’ attorney informed the court that his pre-sen-
tence investigation report, completed by the local probation office, said that he “has no record, a
previous vehicle arson case having been dismissed by a hung jury.”

The judge, on the other hand, was not so quick to dismiss culpability in the vehicle arson
case. “I believe you burned that car. . . . The jury decided otherwise, that’s their prerogative;
but, I believe you burned it. . . . I suspect that you didn’t learn a damned thing . . . I think you
think you got away with something.”

The judge then said, “I choose to aggravate the term,” meaning finding reason to impose
the maximum sentence allowed. Arizona law allows judges to consider prior cases when impos-
ing sentences, even cases that do not result in convictions.

Source: Adapted from H. Kitching (1995), Bite the bullet, judge tells drive-by triggerman. Nogales Inter-
national.

LEGAL FACTORS IN SENTENCING

Legal variables, such as prior record and offense severity, are “those which the sys-
tem may legitimately use to fix sentences” (Lizotte, 1978, p. 567). As citizens, we
expect these variables to affect sentences. Most individuals would agree that those
convicted of rape or robbery should be punished more harshly than shoplifters
because the crimes are more serious and cause more harm. Similarly, few people
would argue if those being sentenced for their fifth burglary received harsher sen-
tences than first-time burglars. Such disparities (i.e., differences in sentences) would
not necessarily reflect discrimination (i.e., difference in sentences that are attributed
to prejudice). Legal variables, then, are legitimate influences on sentence severity.

There has been a great deal of research on the effects of legal variables on
sentences. Scholars have consistently found that those convicted of more serious
charges tend to receive harsher sentences (e.g.; Chiricos and Bales, 1991; Lizotte,
1978; Myers, 1987; Myers and Talarico, 1988; Petersilia and Turner, 1985; Spohn,
1990; Uhlman, 1977, 1979). This makes intuitive sense. Those who cause more
harm to their victims or to society in general should be penalized more than those
who cause less harm. See Box 14.4 for a breakdown of sentences by offense, which
shows the influence of this factor.

The presence of mitigating or aggravating circumstances in the offense has also
been associated with sentence severity. For example, offenders who use guns while
committing their crimes typically receive harsher sentences than other offenders
(Feeley, 1979, p. 212; Spohn, 1990), sometimes because they face mandatory penal-
ties or enhancements (i.e., laws that authorize harsher sentences when certain crite-
ria are met, such as use of a firearm during a crime or victimizing a vulnerable
victim). Criminals whose cases involve mitigating factors (e.g., reduced mental com-
petence, minor role in the offense, youthful offender), on the other hand, often
receive lesser penalties.

In some cases, the age of the offender is a legal variable in sentencing. Juve-
niles, for example, cannot receive the death penalty in most states. Unless they are
tried as adults, juveniles cannot be incarcerated beyond expiration of juvenile juris-
diction. To illustrate, California cannot imprison even serious offenders tried in the
juvenile court system (e.g., murderers) beyond the age of twenty-five; other juve-
nile offenders must be released by age twenty-one. Other states mandate release
at earlier ages; regulations regarding housing juveniles with adults require that
Arkansas juveniles must be released by age eighteen. Because youths convicted in
the juvenile courts must be released when they become adults (or shortly there-
after), some juveniles charged with serious crimes are certified to the adult courts.
Had Lionel Tate, a twelve-year-old boy who argued that he was imitating profes-
sional wrestlers when he beat a six-year-old girl to death in Florida, been tried in
the state’s juvenile courts, he could only be held until age twenty-one. By transfer-
ring him to adult court, he faced, and received, a mandatory sentence of life in

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prison without parole (Canedy, 2001).4 See Step 16 for more information on certi-
fication and the treatment of youths in the juvenile courts.

Prior records have also been linked with harsher sentences (e.g., Gordon and
Glaser, 1991; Mileski, 1971; Spohn, 1990; Zatz, 1984). Those who have been con-
victed of prior criminal acts usually receive harsher sentences than first-time

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Legal Factors in Sentencing 439

BOX 14.4

Felony Sentences Imposed by State Courts

As you look over the following table, it is clear that offense severity has at least some impact on
sentences. Which offenses are least likely to receive probation? Most likely to receive probation?
What can you say about the effect of offense severity on sentences, after studying this chart?

Types of Felony Sentences Imposed by State Courts: by Offense, 1996

Percent of felons sentenced to—

Most Serious Incarceration

Conviction Offense Total Total Prison Jail Probation

All offenses 100% 69% 38% 31% 31%
Violent offenses 100% 79% 57% 22% 21%

Murdera 100 95 92 3 5
Sexual assaultb 100 79 63 16 21
Robbery 100 87 73 14 13
Aggravated assault 100 72 42 30 28
Other violentc 100 73 38 34 27

Property offenses 100% 62% 34% 28% 38%
Burglary 100 71 45 26 29
Larcenyd 100 63 31 32 37
Fraude 100 50 26 24 50

Drug offenses 100% 72% 35% 37% 28%
Possession 100 70 29 41 30
Trafficking 100 73 39 33 27

Weapons offenses 100% 67% 40% 27% 33%
Other offensesf 100% 63% 31% 32% 37%

Note: For persons receiving a combination of sentences, the sentence designation came from the most severe penalty
imposed—prison being the most severe, followed by jail, then probation. Prison includes death sentences. Data on
sentence type were available for 997,906 cases.
a Includes nonnegligent manslaughter.
b Includes rape.
c Includes offenses such as negligent manslaughter and kidnaping.
d Includes motor vehicle theft.
e Includes forgery and embezzlement.
f Composed of nonviolent offenses such as receiving stolen property and vandalism.
Source: Brown, Langan, and Levin (1999), p. 2.

offenders. With respect to “three strikes and you’re out” policies, the number and
type of priors may be the most important factor in sentencing. When sentencing
guidelines are followed, one’s prior record also has a significant effect on one’s
final sentence.

Similarly, those facing more charges tend to receive harsher sentences (e.g.,
Klein et al., 1991). One scholar even found that the number of charges a defendant
faced was a better predictor of sentence severity than prior record (Green, 1961).
Again, this is rather intuitive. Logic dictates that a burglar who is sentenced for
burglarizing two homes should receive a more severe sentence than a similar bur-
glar who burglarized only one home.

Another legal factor in sentencing is the recommendation made by a proba-
tion officer in the pre-sentence investigation. The recommendation itself is a legal
factor, but some research has shown that the advice given to judges by probation
officers may be the result of bias. One research team (Reese, Curtis, and Whit-
worth, 1988), for example, found that probation officers’ attitudes affected
whether they recommended commitment for a juvenile offender. Other scholars
(e.g., Hagan, 1975, p. 635; see also Ebbesen and Konečni, 1981) note that offender
characteristics such as race and socioeconomic status may affect probation offi-
cers more than judges and hence “introduce a channel of extra-legal influence”
(Hagan, 1975, p. 635) into sentencing. Other scholars note that probation officers’
recommendations may be based in part on the desire to legitimize their own role in
the criminal justice system; to illustrate, some probation officers recommend pro-
bation so that their offices’ budgets can be increased (Moran and Cooper, 1983).
These possible biases by probation officers become very important when one
notes that the concordance rate between judges’ sentences and probation officers’
recommendations is very high, often exceeding 80 percent (e.g., Ebbesen and
Konečni, 1981; Hagan, 1975).

The final legal factor we will consider is whether a plea bargain was reached
in the case. As mentioned in Step 11, judges are not necessarily bound to the sen-
tence agreed to in a plea bargain, but judges rarely deviate from the recommenda-
tions that arise out of bargaining sessions. Because of this, the terms of the plea
bargain may be strongly associated with, and may be the only determining factor
in, the final sentence. Of course, the terms of plea bargains are usually related to
the nature of the charges and other legal factors, so the final sentence should not be
that much of a surprise. Because plea bargains involve discretion, however, it is
also possible that the extra-legal and organizational factors discussed below have
some impact on the final recommendations. Later in this chapter, we will discuss
plea bargaining as an organizational factor because the practice was designed to
serve the courts’ needs to dispose of cases. It is included as a legal factor because
some bargains dictate sentences and the U.S. Supreme Court has recognized the
value of bargaining in American justice. See Box 14.5 for some legal factors con-
sidered by lower court judges when deciding and imposing sentences.

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EXTRA-LEGAL VARIABLES IN SENTENCING

Extra-legal factors are those which have legally impermissible influences on legal
decisions such as charging, verdicts, and sentencing. The influence of extra-legal
variables on sentencing suggests discrimination. Influences that result from these
factors undermine our general concept of fairness and justice. When race is felt to
determine which defendants receive the death penalty, for example, the public may
feel that our criminal justice system is unfair. This may reduce the likelihood that

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Extra-Legal Variables in Sentencing 441

BOX 14.5

Some Legal Factors Considered by Lower Court Judges
When Sentencing

When you read the following excerpts from interviews with lower court judges, think about what
the judges value and how they view their role in the courts. Do you agree with their reasoning?

Prior record and harm:
I have enough experience to know what cases are worth, and so, this is kind of like a
marketplace, and cases have certain values of their own. And based on independent
things within the case, the value goes up or down, based on prior records, or based
on aggravating circumstances like use of weapons or causing great risks.

Prior record:
A first-timer, [you want to] sentence them appropriately. You don’t sentence them
with thirty days in jail and give the heavy-weight guy with the bad record five days
in jail. What message does that send out? There’s a mixed message; it’s useless. You
better reverse it. Five days for the first-timer, thirty days for the second-timer.

Mitigating/aggravating circumstances:
Now, there are things, when we sentence felonies, for example, there are low-term,
mid-term, and high-term. I like to say we start at the mid-term. Say it’s 2, 3 or 4
years. [I] start at 3 years, and if there are mitigating circumstances, I move down,
and if there are worse circumstances, I might move up.

Nature/seriousness of the crime:
[The factors I consider] depend on the situation. If you have a first-time offender on
a petty theft or some such thing like that you don’t usually get too excited about it.
[If] you start having people who are using guns and holding up people or something
that is of a more violent nature, you are most concerned.

Role of plea bargaining:
Most of the sentencing that I do is worked out by way of plea bargains with DAs. So,
all of the sentencing that you saw me do [when you observed me] was based on a
contract basically with the DA. It’s rare that I have a lot of discretion in sentencing.

people will comply with the law (Tyler, 1990), or increase the likelihood that people
will “martyrize” criminals (Kennedy, 1997, p. 27).

Extra-Legal Defendant and Offense-Related
Variables in Sentencing

Race/ethnicity is by far the most controversial extra-legal factor in sentencing. One
of the first empirical studies in this area was conducted by Thorsten Sellin (1928)
who compared conviction and sentencing rates for black and white defendants in
Chicago during the 1920s. His finding that blacks received heavier penalties than
whites has been replicated by many other researchers. Some researchers, however,
have quickly denounced the idea that racism plays a role in sentencing and instead
point out that the offenses committed by minorities are often more serious than
those committed by whites (e.g., Green, 1964; Kleck, 1981, 1985). We now know
that racial discrimination affects at least some judges under at least some circum-
stances, but findings of systemwide bias are far less common than the media would
lead one to believe. In some respects, media focus is actually distorted in two
opposite directions. Media accounts tend to overplay any potential suggestion of
race having been a factor in a case, but underplay the real issues of discrimination
against minorities, the poor, and other groups. Because of its profound impact on
justice and perceptions of justice, we will examine discrimination in greater detail
later in this chapter.

Generally, research shows that women are treated less harshly than men by
the courts. Some scholars believe this results from paternalism or a desire to pre-
serve maternal bonds. This phenomenon may be especially salient when defen-
dants’ children are in the courtroom at the time of sentencing. As women move into
the crime areas previously dominated by men (e.g., violent crimes and fraud),
these differences are beginning to disappear. For now, however, women still tend to
get lighter penalties overall (Bureau of Justice Statistics, 1994; Daly, 1994;
Meeker, Jesilow, & Aranda, et al., 1992). Some scholars argue that it is not women,
per se, who are treated leniently, but caregivers in families, who just happen to be
female more often than male. These researchers have found that male primary
caregivers are also treated leniently, meaning that “familied” defendants of either
gender are usually punished lighter than defendants without family responsibilities
(e.g., Daly and Tonry, 1997; Simpson, 1989).

Almost ironically, socio-economic status is one of the major influences on
sentences. Harsher sentences are often imposed on the poor, sometimes because
society fears that such offenders are particularly despicable or dangerous (Chamb-
liss and Seidman, 1971, p. 475; Lizotte, 1978). This seems offensive in a nation
that claims fairness for all and once proclaimed, “Send us your poor, your huddled
masses yearning to be free.” Some scholars argue that “crime” in the United States
is a label for deviant acts committed by the poor, while the harms perpetrated by

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442 $30 or 30 Days: Setting the Penalty

elites (e.g., white-collar crimes) go relatively unnoticed (e.g., Reiman, 1995).
Because they are so unlike the middle- and upper-class judges who sentence them,
and hence less likely to be empathized with, the poor are likely to get harsh treat-
ment in the courts when it comes to sentencing. This is particularly true when
defendants are detained before trial because they could not make bail.

One of the most predictable, yet unfair effects on sentencing may be the dress
and appearance of the accused. It is for this reason that many defendants, even in
minor traffic cases, wear their Sunday best to court. Likewise, defendants who
appear polite and remorseful in court sometimes meet with leniency in the courts.
Researchers like Alan Lizotte (1978) recognize the importance of dress and de-
meanor and how these traits may be tied to socio-economic status:

In the courtroom, poorer defendants might not present the image of respectability evidenced
by dress, demeanor, and social standing which a wealthy person could. Judges might convict
more often; assign higher bail amounts; refuse to grant bail; and assign tougher sentences to
blacks or persons in lower occupations. (p. 565)

Ties to the community can help offenders in several ways. First, those who have
social standing in the community can expect at least some favorable media cover-
age, even if the community is outraged.5 Then, those with family ties are some-
times labeled as better risks for probation. Finally, they are more likely to be
released before trial, and therefore are better able to assist in their own defenses.

Although possibly the most important factor in criminality, an offender’s
motivation for committing a crime is technically an extra-legal factor. The law con-
siders intent (i.e., what one plans to do) rather than motivation (i.e., the goal
behind one’s planned actions). To illustrate this difference, consider the husband
who euthanizes his invalid wife at her request after years of pain and suffering.
Despite his motivation to end his wife’s suffering, his intent was still to end her
life. The husband could be convicted of murder for this act, regardless of whether it
was motivated by compassion. When it comes time to impose sentence, however,
motivation is elevated to a legal factor. In sentencing, we expect that the compas-
sionate husband’s act of murder be treated as less serious than a brutal murder of a
healthy wife to collect on life insurance, not because the victims differ, but because
the depravity involved in the crimes differs. Likewise, those who steal to feed their
hungry children generally receive lighter penalties than drug addicts who steal to
feed their drug habits.

Many offender-related, extra-legal influences are less consistent. Some
judges, for example, prefer to “hammer” young offenders with harsh sentences to
“set them straight” whereas others feel that young offenders deserve leniency.
Some judges are more likely to release on probation certain types of offenders such
as students and high-profile individuals, but others harshly sentence these offend-
ers, who should “know better” (see Box 14.6 for some extra-legal factors consid-
ered by lower court judges when deciding and imposing sentences).

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Extra-Legal Variables in Sentencing 443

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444 $30 or 30 Days: Setting the Penalty

BOX 14.6

Some Extra-Legal Factors Considered by
Lower Court Judges When Sentencing

When you read the following excerpts from interviews with lower court judges, think about
circumstances when their rationales could be viewed as discrimination, or the beginnings of
discrimination. Can you imagine at least one set of circumstances under which you would
agree with the judges’ reasoning?

Race/ethnicity:
I think the [domestic] abuse is maybe increasing a little bit. We have [a] tremen-
dously high proportion of Hispanic residents in this jurisdiction, and I think a lot of
the Hispanic legacy is to treat women less as humans and more as property.

Race/ethnicity:
I do see Hispanic names. I tell you, though, one thing that really upsets me are
illegals. I don’t mind illegals coming across the border. I don’t mind people com-
ing from other countries to work. My parents did it, yours did, and so on. But
what really upsets me is when they come to this country to violate the law. Not in
order to, necessarily, but they violate it. And I mean they are cutting and shooting
and drunk driving and getting chased by the cops and crashing into people. So I
had a meeting with the immigration people to say we have to do something about
this. And the immigration people said just taking them back does not do anything.
But if they are convicted of a felony and two serious misdemeanors . . . then if
they come back, then they can go to the federal penitentiary and do 90 percent of
their sentence in 8–10 years. So, what I am saying is that we do not want those
criminals.

Age:
Is this the tenth time he’s been caught breaking in and taking someone’s stereo out
of their car or is it his first? And if it’s the tenth time for a thirty-year-old and it’s the
tenth time for an eighteen-year-old, you’ve got a real dilemma because that person’s
still young. I’m probably never going to reach the thirty-year-old, but if I really cru-
cify the eighteen-year-old, maybe it will stop him. I can give the thirty-year-old a
year in jail and he’ll be out with his slim-jim and screwdriver the day he gets out. So
I can slam him real hard and it probably won’t do any good, whereas if I slam the
eighteen-year-old, who really is probably less culpable because he hasn’t had as
much time to mature, I may get his attention and he may go straight.

Attitude:
But also it is [influenced by] attitude. Is the defendant’s attitude more of being sorry
or is it belligerent? A lot of body language that I see in the defendant [is important].

Extra-Legal Community Variables in Sentencing

Extra-legal community factors may also play a role. Jail or prison overcrowding
may lead some judges to consider alternative sentences (Meyer and Jesilow, 1993).
The presence of the media or people in the audience may influence sentencing,
especially in notorious cases. The general community attitudes toward crime and
criminals affect sentencing, especially for elected judges in rural areas (Kunkle,
1989). Finally, the presence of racial unrest or economic inequality in a community
may mean that sentences are harsher than in less diverse areas (Myers, 1987).

Extra-Legal Judicial Variables in Sentencing

Some important, yet often overlooked, sources of extra-legal influence are the char-
acteristics of the sentencing judges themselves.6 Research has shown, for example,
that female offenders receive harsher sentences from female judges than from male
judges (Gruhl, Spohn, and Welch, 1981; Myers and Talarico, 1988). Minority
judges seem to be more impartial with respect to offender race; that is, offender race
is less important in sentences imposed by minority judges, whereas white judges
seem to impose more lenient terms on white offenders (Holmes et al., 1993; Welch,
Coombs, and Gruhl, 1988). Former prosecutors have been found to impose harsher
sentences than other judges (Myers and Talarico, 1988) and retribution-oriented
judges are often harsher than judges who follow other punishment philosophies
(Hogarth, 1971). Some judges dislike and hand out harsh sentences to drunk driv-
ers, child molesters, or other specific categories of offenders. Judicial age, religion,
and form of selection (i.e., elected versus appointed) may also have significant
effects on sentences. It is meaningful to realize that judicial characteristics may be
as important, if not more important than characteristics of offenders.

ORGANIZATIONAL FACTORS IN SENTENCING

A third category of sentencing factors are organizational; these are tied to the
courtroom itself. In general, they revolve around the strength of the “courtroom
work group,” composed of the judge, prosecutor, and defense attorney (for more

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Organizational Factors in Sentencing 445

Dress:
Times are so hard and things are so expensive, that you get people coming in here
on parking tickets dressed in tie and jacket, . . . you know, dressed very nicely to
save five bucks on a parking ticket. . . . And you get a lot of people coming in here
who aren’t John Dillinger, coming in on a first-time moving violation, those people
deserve to be treated like the good people that they are.

information on courtroom work groups, see Part II [Steps 5–8] of this textbook).
The better connected these three courtroom players are, the more likely they are to
work as one unit to dispose of cases in an efficient manner, sometimes at the
expense of individual defendants (Eisenstein and Jacob, 1977; Nardulli, 1978).

One important organizational factor is the type of plea. It is well known that
those who force the state to prove their guilt receive harsher penalties than those
who plead guilty (e.g., Albonetti, 1991; Bullock, 1961; Nardulli, 1978). In keeping
with the idea of trials as uncalled-for obstacles to justice, attorneys sometimes
refer to the harsher sentences imposed on those who are convicted after trial as
“rent charged for use of the courtroom.” Hence, plea bargaining, whether explicit
or implicit, can have a significant impact on final sentence.

Following Abraham Blumberg’s (1967) discussion of defense attorneys as
“double agents” whose primary duty is to appease the court by persuading their
clients to plead guilty and save the state the cost of a trial, scholars began to focus
their attention on how the members of the courtroom work group interact with dif-
ferent types of defense counsel. Most researchers agree that public defenders, due
at least in part to their high caseloads, are less able than private attorneys to secure
acquittals or lenient sentences (e.g., Lizotte, 1978). On the other hand, some
research has found that public defenders are better able to secure favorable sen-
tencing outcomes for offenders, presumably because they are able to develop close
ties to other courtroom regulars (Pruitt and Wilson, 1984; Wice, 1985, p. 65).

Research has shown that another way to incur the wrath of the courtroom
work group is to claim an “unfair” slice of their time in court. Basically, defendants
who “take some of the court’s time” have some of theirs taken in the form of longer
sentences. This has been found true for both the felony (Eisenstein and Jacob,
1977; Nardulli, 1978) and lower courts (Meyer and Jesilow, 1997; Mileski, 1971).
Peter Nardulli (1978, p. 216), for example, found that for each defense-initiated
legal motion, robbers’ sentences increased; those who made one motion were typi-
cally incarcerated for 25 months, whereas those who initiated more motions were
sent to prison for at least 64 months. At the lower court level, one research team
(Meyer and Jesilow, 1997) found that offenders whose misdemeanor arraignment
hearings lasted just four or more minutes were significantly more likely than those
with shorter hearings to be jailed! Of course, some argue that a possibility exists
that sentence outcome “causes” trial length because longer trials are necessary for
the complex cases that often involve long sentences; but it is also possible that
defendants are not receiving their right to due process. See Box 14.7 for some dis-
cussions about organizational factors from judges and court administrators.

DISCRIMINATION

As discussed above, discrimination reduces the public’s trust and faith in the
courts. The question is not whether discrimination exists, but the identity of its

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446 $30 or 30 Days: Setting the Penalty

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Discrimination 447

BOX 14.7

Some Comments on Organizational Factors from
Lower Court Judges and Court Administrators

As you read the following quotes, consider the value placed by the courtroom work group on
efficiency and saving time.

A judge talking about the lack of attorneys in lower courts and judges having to ensure that bar-
gains are not used too often by prosecutors looking to get rid of cases quickly:

I think our job is to make sure that . . . no one is taking advantage of anyone. The
DA is in there talking with pro pers all the time, criminal defendants without
lawyers, and if we fall asleep at the switch, some people may get some pleas that
they shouldn’t be pleading to. Punishment that’s too high. The DAs are honorable,
ethical people, so our job is simple. We check every claim, take every plea, so we’re
sort of a check-and-balancing system. So, if they’re taking advantage of people, or
it seems like that, we stop it. “Pardon me, why are you doing this on this person?
Why is the fine twice what you normally offer?” And if they tell us why, and there’s
a good reason for it, fine. If not, I just tear it up. . . . If the offer is low, based on this
person before me, then I’ll tear it up and say, “No, start over. Either raise up your
offer or we’ll get them a lawyer and then go to trial, because this person needs more
punishment than you’re giving them.”

A judge discussing types of bargains in his court which might be attractive to defendants:
Your first-time petty theft, for example, is usually in plea bargain situations reduced
to a trespass . . . so the petty isn’t on their record even though the police report indi-
cates it’s a clear petty theft. A driving on a suspended license, if the person gets a
license, might be reduced to driving without a license . . . the first time or so,
but . . . the second, third or fourth time isn’t going to be treated like that, and that is
just a matter of common sense.

A court administrator discussing calendaring to improve court efficiency:
Some courts segment their calendars by all public court cases, and private attorney
cases are on different calendars so that it is more efficient. . . . Many calendars are
designed for lawyer efficiency to try the cases out in the shortest period of time.

A judge lamenting about individuals who “waste” the court’s valuable time:
I do not think that it does people any good to just keep going through the front door
and not accept responsibility for what got them there. If they can do that by a trip to
the front door and pleading guilty, paying the fine, and that modifies their behavior,
I’m happier than anybody. But if they continue . . . the behavior that got them there
in the first place, then I want to know how much time I’m supposed to . . . waste
with them before we take what we’re going to do here seriously? This thing costs a
lot of money to [operate], courts and all of this stuff.

sources and the nature and extent of its impact. Early studies (pre-1970s) on dis-
crimination showed that minorities, in particular blacks, received harsher penalties
than whites. Among these studies were some that included control factors, such as
offense severity and prior record (e.g., Bullock, 1961; Lemert and Rosberg, 1948),
but without computers to calculate statistics, they relied on bivariate comparisons
(meaning they could only control for one factor at a time).

More recent studies (i.e., those after 1970) used more sophisticated research
methods, and also found evidence of racial bias in sentencing, but not to the degree
reported in earlier studies. One of the most noteworthy studies of the 1970s was a
study done by Alan Lizotte. Lizotte (1978) used complex statistical models to exam-
ine sentencing outcomes and found that race did not affect sentences directly, but
instead operated through minorities’ reduced ability to post bail. Another notable
study during the 1970s (Uhlman, 1977, 1979) found that blacks received harsher
sentences for three reasons: Their crimes were more serious (i.e., their criminality
differed), they were poor (i.e., that class status mattered), and they were black (i.e.,
racism happened). In the 1980s, some researchers focused on the effects of sentenc-
ing guidelines that were implemented during the 1970s (e.g., Petersilia and Turner,
1984, found that even racially neutral criteria were “racially tainted,” meaning that
some of the criteria were associated with race), whether the biases found for blacks
extended to other minority groups such as Mexican Americans (e.g., Zatz, 1984,
found that Mexican Americans were treated differently from blacks and whites),
and whether ecological variables were important in sentencing (e.g., Myers and
Talarico, 1988, found that blacks received harsher sentences in communities in
which there was a large gap between the lowest and highest incomes but that blacks
were treated more fairly in communities with a larger black population).

Current research suggests that discrimination in the criminal justice system is
contexual rather than systematic (Walker, Spohn, and DeLone, 2000). That is, evi-
dence suggests that discrimination occurs in the justice system, but that its occur-
rence, nature, and frequency depends on the context. For example, some police
departments are more likely to engage in racial profiling than others, some judges
are more likely to be biased in sentencing than others, and so on. Because discrim-
ination is contextual, it may be harder to detect using standard research methods.
Sometimes the bias is against minorities, such as when blacks get longer prison
terms. Some researchers have found that bias works in favor of white offenders,
such as when the criminality of whites was “graded downward by probation offi-
cers and judges” in one study so that they received probation or short jail sentences
while non-white offenders were sent to prison (Lemert and Rosberg, 1948). The
end result of both forms of bias, of course, is the same: Minorities get harsher sen-
tences than whites.

The research on discrimination has become somewhat of a methodological
battleground (Meyer and Jesilow, 1997). Instead of discussing the significance
of each other’s findings, researchers seem to prefer arguing about each other’s

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448 $30 or 30 Days: Setting the Penalty

“flawed” methods. Now, researchers use complex formulas that require substantial
knowledge about statistics to understand. However, it is also important to be aware
of methodological issues and the strengths and limitations of criminal justice sys-
tem data. For example, data showing differences in offending by race/ethnicity
may or may not reflect actual differences in offending. Why? Because the practices
and policies of actors, such as police and prosecutors, can lead to differential arrest
and charging policies based on race. Based on available research, we know that
some judges are racist. These judges, while relatively rare, sentence minorities
harshly simply because they are not white.

Sentencing discrimination may also be reflected in equally important but
more subtle ways. For example, research on murder cases shows that the race of
the victim is an even more significant influence than the race of the defendant on
sentencing (as discussed in Step 13, this argument was raised by McCleskey in
his 1987 appeal following his capital sentence for killing a white). Research from
several studies of sentencing in capital cases found that when the victim is white,
the defendant is more likely to be charged with and convicted of a capital crime,
and to receive the death penalty (Baldus, Pulaski, and Woodworth, 1983; Radelet,

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Discrimination 449

This 1941 photograph of inmates from the Greene County prison camp in Georgia attending their
warden’s funeral illustrates the biases that African Americans of that time faced. Research has shown
that African Americans are sometimes more likely than similarly situated whites to be convicted and
to be sentenced to incarceration, which might explain the lack of white inmates in this picture. Out-
right discrimination in sentencing is far less common now because of social changes in how African
Americans are viewed following the Civil Rights movement, as well as guarantees of counsel to indi-
gent defendants and other forms of justice system oversight. Instead, discrimination, where it is
found, is more contextual and subtle. SOURCE: Library of Congress, Prints and Photographs Divi-
sion, FSA-OWI Collection, LC–USF33–020874–M1 DLC, Jack Delano, photographer.

1989; Walker, Spone, and DeLone, 2000). This also illustrates contextual discrimi-
nation because it suggests that “. . . crimes involving African-American victims are
not taken very seriously. . . . [and] the lives of African-American victims are deval-
ued relative to the lives of white victims. Thus, crimes against whites are punished
more severely than crimes against African-Americans regardless of the offender’s
race” (Walker, Spone and DeLone, 2000, p. 245).

Bias is probably most likely in two types of situations. First are those circum-
stances that occur far from public scrutiny, such as plea bargaining sessions that
usually take place in private. Second are those situations where sufficient discre-
tion exists to permit discrimination to take place. Judges must have enough leeway
to hand out discriminatory sentences. James Meeker and colleagues (Meeker,
Jesilow, and Aranda, 1992), for example, argued that bias is most likely to occur in
non-legal decisions. He and his research team found that Hispanics and males were
more likely to be sent to less desirable sites to complete their community service
sentences (e.g., picking up trash along roads versus working in libraries or other
non-profit organizations), and suggested that the placement bias was due to the
ability of the judges to exercise their discretion for that decision. In contrast, the
defendants’ sentence lengths (i.e., the number of hours of service ordered), which
were established by law, were not handed out in a discriminatory fashion.

The role of race in justice has become a controversial issue for Americans, but
seems to be one they do not really want to seriously tackle, preferring instead to rely
on personal opinions and national rhetoric. As aptly summarized by one news colum-
nist, “When a black person breaks the law, it’s a comment on race. When a white per-
son commits a crime, it’s a comment on society” (Gonsalves, 1998, p. L5). It seems
hard for most Americans to seriously question a justice system that repeatedly nets
minorities because they are not faced with the continual specter of discrimination
themselves. As discussed in Step 8, minorities tend to be arrested more often for
street crimes and serious drug offenses. Because such offenses are punished harshly,
minorities often find themselves facing strict sentences. Even when compared to
whites accused of similar offenses, poor minorities may be less able to post bail to
achieve pre-trial release or less able to hire competent counsel, thus increasing their
chances of conviction. And, in some cases, outright discrimination is, unfortunately,
a factor. As discussed earlier and in Step 8, discrimination can occur at one or more
of many points. We still have far to go in our understanding of how race affects the
entire process of justice, from law-writing to law-breaking and beyond.

SENTENCING REFORMS TO DEAL WITH DISCRIMINATION

Discrimination is by no means new to criminal justice. As noted earlier, Cesare
Beccaria noted with disdain in the eighteenth century that sentences were some-
times based more upon characteristics of offenders than upon their crimes. Unfor-

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tunately, Beccaria’s laments described more than just his nation’s justice system.
American justice in earlier centuries often legislated harsher treatment for African
Americans. Some early American laws were actually designed to treat black
offenders harsher than their white counterparts. For example, rapists in Georgia
during 1861 were sentenced differently according to their race and the race of their
victims; state laws at that time dictated that blacks who raped “free white” females
“shall be” sentenced to death, whereas non-blacks who raped free white females
faced sentences of two to twenty years in prison and those who raped black women
were to be punished “by fine and imprisonment, at the discretion of the court”
(McCleskey v. Kemp, 1987, pp. 329–330). Similarly, an 1848 Virginia statute
required the death penalty for any offense committed by a black that could result in
three or more years in prison for a white (Jones, 1981, p. 543). These two examples
show that our system of justice has not always protected all Americans equally.
Even the U.S. Supreme Court acknowledged how tolerable social inferiority for
blacks was to nineteenth century white Americans when it ruled in Plessy v. Fergu-
son (1896) that courts could not be expected to guarantee equality to blacks: “If
one race be inferior to the other socially, the Constitution of the United States can-
not put them upon the same plane.”7 Complaints about the existence of discrimina-
tion did not vanish with the eradication of such racist laws as those discussed
above, but the situation has improved immensely in this country.

Until a few decades ago, there were relatively few limits on sentencing. Most
offenders were sentenced under indeterminate sentencing. Under this arrange-
ment, judges decide whether or not offenders will be sent to prison. Later, a parole
board determines when each offender will be released. The parole board meets
with offenders and determines which are rehabilitated, and therefore “ready” to be
released. Rehabilitation, however, lost its political support and people began to
notice that discrimination lurked under the euphemistic guise of reforming offend-
ers. It was harder for minorities to convince all-white parole boards they were
ready for release, meaning they were held for longer terms.

In response to the realization that sentence length often depended on an
offender’s skin color or socioeconomic status, legislators began designing a strat-
egy to deal with the problem. Several legislative attempts to restrain discretion
were developed. The first was the move from indeterminate sentencing to determi-
nate sentencing. This system replaced vague, open sentences with terms set by
statutes. Instead of meaningless sentences of “one year to life,” offenders could
expect to know the number of years they would serve for their crimes. It was also
hoped that such policies would limit judicial discretion and drive judges to impose
similar sentences on defendants convicted of similar offenses.

Some states, such as California, chose to rewrite their penal codes to say that
retribution was the new state policy, and that sentences were intended to punish,
rather than reform, offenders. Merely eliminating rehabilitation from state penolog-
ical purposes, however, did not delete it from individual judges’ priorities. Some

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Sentencing Reforms to Deal with Discrimination 451

judges continued to follow the old directive that viewed offenders as reformable. It
did not take long for people to perceive that judges (and, to some extent, parole
boards) were letting offenders off with “slaps on the wrist.” Angry, the public
demanded accountability from its judges and sought ways to limit their discretion.
They demanded more restrictions on judges’ sentencing options. Such a move, they
reasoned, would prevent judges from coddling dangerous offenders.

Sentencing Guidelines and Mandatory Sentences

One such restrictive sentencing reform is the implementation of sentencing guide-
lines. Sentencing in the federal and many state felony courts is directed by these
rules that dictate sentences based on legal factors present in a case. The type of
offense, harm to victim, amount of damage, and the offender’s prior record, for
example, contribute to a narrowly defined sentence. Using the federal guidelines, a
robber who held up someone for less than $10,000 without (1) using a firearm, (2)
any resulting injuries, or (3) any prior convictions could expect a sentence of thirty-
three to forty-one months (United States Sentencing Commission, 1998, pp.
72–73). Theoretically, extra-legal factors such as race and gender are not allowed
to influence sentences because they are excluded from the complex formulas that
determine offenders’ ultimate fates.8 Most critically, the use of race and/or gender
as factors raises equal protection and due process issues. See Box 14.8 for the 1998
Sentencing Guidelines sentencing table.

Under sentencing guidelines, judges may depart upward (i.e., impose a harsher
sentence than that provided by the guidelines) or depart downward (i.e., impose a
milder penalty than called for by the guidelines). Judges utilizing either option, how-
ever, must provide the court with their reasoning. For this reason, departures are sel-
dom made. At the federal level, most departures are made for cooperating with
authorities and providing information about criminal associates (Wray, 1993).

The most restrictive sentencing reform is the adoption of mandatory penalties.
Mandatory sentences force judges to impose certain penalties, usually by dictating the
minimum sentence a judge may consider. Most mandatory minimums apply to violent
crimes (e.g., California’s mandatory minimum of twenty-five years in prison for
rapists who injure their victims), habitual offenders (e.g., “three strikes and you’re
out” laws), drug offenses (e.g., many states’ mandatory prison terms for drug users
and dealers), or firearm use (e.g., “use a gun, go to jail” laws). A new trend is the
imposition of mandatory penalties on drunk drivers. All fifty states have some form of
mandatory sentences in place and they are a regular feature in federal statutes (Parent
et al., 1997). Although mandatory sentences have been around for many years (e.g.,
see Box 14.9 for a number of early “three strikes”–style American legal codes), the
“get tough on crime” movement has boosted their popularity (e.g., Whitman, 1998,
pp. 71, 72). In fact, “three strikes”–style sentencing schemes were approved by the
U.S. Supreme Court in 1980 in Rummel v. Estelle. See Box 14.10 for a brief synopsis
of this important case.

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Sentencing Reforms to Deal with Discrimination 453

BOX 14.8

The 1998 Federal Sentencing Guidelines

This table shows sentences, in months, under federal guidelines. To determine an offender’s
sentence, one need only find the intersection of the Offense Level (i.e., offense severity) and
Criminal History Category (i.e., prior record). Each offense has a base value to which points are
added if other factors made the crime more serious, for example if the offender used a weapon
or inflicted injuries on others (United States Sentencing Commission, 1998). These values are
explained in explicit detail in the Guidelines manual, which is nearly 600 pages long.

Criminal History Category (Criminal History Points)

Offense I II III IV V VI
Level (0 or 1) (2 or 3) (4, 5, 6) (7, 8, 9) (10, 11, 12) (13 or more)

1 0–6 0–6 0–6 0–6 0–6 0–6
2 0–6 0–6 0–6 0–6 0–6 1–7
3 0–6 0–6 0–6 0–6 2–8 3–9
4 0–6 0–6 0–6 2–8 4–10 6–12
5 0–6 0–6 1–7 4–10 6–12 9–15
6 0–6 1–7 2–8 6–12 9–15 12–18
7 0–6 2–8 4–10 8–14 12–18 15–21
8 0–6 4–10 6–12 10–16 15–21 18–24
9 4–10 6–12 8–14 12–18 18–24 21–27

10 6–12 8–14 10–16 15–21 21–27 24–30
11 8–14 10–16 12–18 18–24 24–30 27–33
12 10–16 12–18 15–21 21–27 27–33 30–37
13 12–18 15–21 18–24 24–30 30–37 33–41
14 15–21 18–24 21–27 27–33 33–41 37–46
15 18–24 21–27 24–30 30–37 37–46 41–51
16 21–27 24–30 27–33 33–41 41–51 46–57
17 24–30 27–33 30–37 37–46 46–57 51–63
18 27–33 30–37 33–41 41–51 51–63 57–71
19 30–37 33–41 37–46 46–57 57–71 63–78
20 33–41 37–46 41–51 51–63 63–78 70–87
21 37–46 41–51 46–57 57–71 70–87 77–96
22 41–51 46–57 51–63 63–78 77–96 84–105
23 46–57 51–63 57–71 70–87 84–105 92–115
24 51–63 57–71 63–78 77–96 92–115 100–125
25 57–71 63–78 70–87 84–105 100–125 110–137
26 63–78 70–87 78–97 92–115 110–137 120–150
27 70–87 78–97 87–108 100–125 120–150 130–162
28 78–97 87–108 97–121 110–137 130–162 140–175
29 87–108 97–121 108–135 121–151 140–175 151–188
30 97–121 108–135 121–151 135–168 151–188 168–210

(continued)

Of course, the legislature must not go too far in imposing mandatory penal-
ties. The resulting sentences must bear some proportionality to the harm caused or
appellate courts may strike them down as unfair on review. Consider the 1983 U.S.
Supreme Court case, Solem v. Helm. Although the charges Helm faced resembled
those three years earlier in Rummel v. Estelle, the High Court said a mandatory life
sentence without parole was disproportionate to his crimes and voided the sentence
(1983, pp. 303–302):

The Constitution requires us to examine Helm’s sentence to determine if it is proportionate
to his crime. Applying objective criteria, we find that Helm has received the penultimate
sentence for relatively minor criminal conduct. He has been treated more harshly than other
criminals in the State who have committed more serious crimes. He has been treated more
harshly than he would have been in any other jurisdiction, with the possible exception of a
single State [Nevada, which also authorized life sentences without parole, but had not yet
imposed that sentence]. We conclude that his sentence is significantly disproportionate to his
crime, and is therefore prohibited by the Eighth Amendment.

In general, judges and courtroom work groups dislike mandatory sentences
because they preclude individualization of sentences. They feel some defendants
(e.g., elderly or borderline mentally ill defendants) should not be sent to prison.
They also agree that the sentences mandated by the law are sometimes unfair.

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BOX 14.8 (continued)

Criminal History Category (Criminal History Points) (continued)

Offense I II III IV V VI
Level (0 or 1) (2 or 3) (4, 5, 6) (7, 8, 9) (10, 11, 12) (13 or more)

31 108–135 121–151 135–168 151–188 168–210 188–235
32 121–151 135–168 151–188 168–210 188–235 210–262
33 135–168 151–188 168–210 188–235 210–262 235–293
34 151–188 168–210 188–235 210–262 235–293 262–327
35 168–210 188–235 210–262 235–293 262–327 292–365
36 188–235 210–262 235–293 262–327 292–365 324–405
37 210–262 235–293 262–327 292–365 324–405 360–life
38 235–293 262–327 292–365 324–405 360–life 360–life
39 262–327 292–365 324–405 360–life 360–life 360–life
40 292–365 324–405 360–life 360–life 360–life 360–life
41 324–405 360–life 360–life 360–life 360–life 360–life
42 360–life 360–life 360–life 360–life 360–life 360–life
43 life life life life life life

Judges in one California county, for example, complained bitterly that they were
forced to jail drug addicts for being under the influence of drugs, although this
penalty did nothing to help offenders deal with their addictions (Meyer and Jesilow,
1997). Mandatory minimums also disrupt the courtroom work group’s routine use

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Sentencing Reforms to Deal with Discrimination 455

BOX 14.9

A Sample of Early American “Three Strikes” Laws

As the following laws show, the magical number “three” was established long ago as the cutoff
point for determining when an offender’s life of crime could be terminated. After one’s third
offense, one was executed to protect the community. This does not mean that all repeat offender
laws seized upon the number three; some repeat offender laws require only two prior offenses to
trigger enhanced sanctions (“A thug in prison cannot shoot your sister,” 1995, p. 257).

1611 Under a 1611 military law in Virginia, the failure to attend religious services was a
crime. One’s first offense meant losing a week’s rations. The second offense netted a
whipping in addition to the loss of a week’s rations. Those who dared to commit a third
offense were put to death (Johnson, 1988, p. 99).

1648 Massachusetts laws in 1648 established another early “three strikes” law for burglary
and robbery. One’s first conviction resulted in branding the letter “B” on the offender’s
forehead (remember, sophisticated tracking technology was not around in the 1600s, so
the only way the justice system knew it was dealing with a recidivist was the presence of
special maiming or brands on the forehead, hands, or other parts of the body; the pres-
ence of the letter “B” on an offender’s forehead alerted the courts that the offender had
been previously convicted of burglary). A second conviction netted a “severe” whipping
in addition to the placement of a second brand on the forehead. The third offense was
proof of one’s being “incorrigible” and resulted in the offender being put to death. Com-
mitting these crimes on the Lord’s day resulted in additional penalties, namely the cut-
ting off of one ear on the first offense and the remaining ear on the second offense
(Farrand, 1648/1929).

1748 A 1748 Virginia law for hog theft made it clear that swine were protected livestock.
One’s first offense netted a fine and twenty-five lashes. A second offense was punished
by a fine and a two-hour stint in the pillory with one’s ears nailed to the device (offend-
ers, by the way, were freed from the pillory by slicing off their ears). The third offense,
proof of incorrigibility, was punished with the death penalty (Friedman, 1993, p. 42).

Even some Native American tribes relied on the magic number “three.” Traditional
Mohawk law punished a third offense of lying with banishment, which was essentially a death
sentence (Ross, 1996, p. 162). Early Cherokee law punished rapists with fifty lashes and the
removal of the left ear. Repeat rapists received one hundred lashes and had their right ears cut
off. Three-time losers were put to death (Young, 1969, p. 23).

of plea bargaining and increase the number of trials demanded by defendants facing
mandatory penalties.

Some courtroom work groups find ways to remove the shackles of mandatory
and guideline-based sentencing. As shown in Box 14.11, state-level judges some-
times use creative interpretations or purposeful misreadings of sentencing statutes to

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BOX 14.10

A Summary of Rummel v. Estelle (1980), an Important Case
in Validating “Three Strikes” Laws

William Rummel had already pled guilty to credit-card fraud in the amount of $80 and passing
a forged check for $28.36 when he was charged with theft of $120.75 (Rummel v. Estelle, 1980).
For this third offense, the prosecutor charged him under Texas’ habitual offender law which
read: “[Whoever] shall have been three times convicted of a felony less than capital shall on
such third conviction be imprisoned for life in the penitentiary” (Rummel v. Estelle, 1980). After
his conviction and sentence to life in prison, Rummel filed a writ of habeas corpus in United
States District Court claiming that his sentence was grossly disproportionate to his crimes. The
District Court rejected his claim, but he then asked for reconsideration by a panel of judges
which ultimately sided with him. A third hearing by the whole court en banc vacated that deci-
sion, once again rejecting his claim. The fourth step was a request for the U.S. Supreme Court to
hear the case, and that court ruled the sentence was not cruel and unusual punishment or
“grossly disproportionate” as noted below:

The purpose of a recidivist statute such as that involved here is not to simplify the
task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders
and, at some point in the life of one who repeatedly commits criminal offenses seri-
ous enough to be punished as felonies, to segregate that person from the rest of soci-
ety for an extended period of time. This segregation and its duration are based not
merely on that person’s most recent offense but also on the propensities he has
demonstrated over a period of time during which he has been convicted of and sen-
tenced for other crimes. Like the line dividing felony theft from petty larceny, the
point at which a recidivist will be deemed to have demonstrated the necessary
propensities and the amount of time that the recidivist will be isolated from society
are matters largely within the discretion of the punishing jurisdiction.

We therefore hold that the mandatory life sentence imposed upon this petitioner
does not constitute cruel and unusual punishment under the Eighth and Fourteenth
Amendments. The judgment of the Court of Appeals is Affirmed. (Rummel v.
Estelle, 1980, p. 284–285)

Postscript: Three years later, the U.S. Supreme Court did side with another property offender
who had received a life term for writing a bad check (Solem v. Helm, 1983). Their reasoning was
that Rummel had been eligible for parole, while Helm was not. This fact made Helm’s sentence
disproportionate.

avoid their intended effects, convert mandatory fines or jail terms into community
service hours, or recommend that the probation department allow alternative place-
ments such as residential treatment programs for jail terms (Meyer and Jesilow,
1993). At the federal level, prosecutors have been known to “divide the load” between
codefendants in order to reduce possible sentences (e.g., nine ounces of cocaine in the
possession of three codefendants would be equal to three ounces each), agree not to
seek enhancements, or seek conviction on a less serious charge (Wray, 1993).

Some judges report that they appreciate mandatory and guideline-based sen-
tences. These judges tend to feel that such sentences are acceptable when they are for
important causes, such as reducing the incidence of drunk driving. Other judges
appreciate that they do not have to determine appropriate penalties in potentially dif-
ficult cases. Others feel that the decreases in their discretion are worth the reduced
discrimination that accompanies mandatory and guideline-based sentences.

Some states operate under presumptive sentencing. Under this scenario, an
appointed sentencing commission made up of criminal justice personnel and pri-
vate citizens sets up varying sentences for individual offenses, similar in some
ways to the federal sentencing guidelines discussed earlier. The guidelines are
mandatory, though judges may depart from them if they provide their reasons for
doing so. If someone is injured in a robbery, for example, the judge may impose a
harsher term than is normally imposed for robbery; if the offender played a minor
role in the offense, on the other hand, the judge may consider a lesser term.

The intent of efforts to curb discretion are to reduce discrimination and to
prevent soft-hearted judges from releasing hard-core offenders onto the streets.
Whether or not mandatory penalties and other structured sentencing strategies
achieve those goals in a fair manner is a matter of debate. Some legal scholars
argue that the past two decades of “get tough” policies in America reflected the fact
that although serious crimes were already punished severely, media and govern-
ment distortions of the extent of the crime problem and the nature of sentencing
practices led to public misperceptions that the criminal justice system was “soft
on criminals.” In response, legislatures passed mandatory sentencing statutes
(Donziger, 1996; Walker, Spone, and DeLone, 2000).

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Sentencing Reforms to Deal with Discrimination 457

BOX 14.11

A Lower Court Judge in California on the Creative
Interpretation of Mandatory Statutes by Judges

There is an interplay between the legislature and the courts. If the statute is ambigu-
ous at all, the judges will try to use that to avoid the mandatory language when they
feel it’s appropriate. When the legislature hears that they’ll go back and revise the
language to try to make it more mandatory. So it’s an interplay between the two
branches on that. (Meyer and Jesilow, 1993)

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BOX 14.12

Some Student Observations on Sentencing

The following observations, made by two of the author’s students, illustrate some important
issues in sentencing. As you read them, think about how the observations illustrate the art of
sentencing.

Input from the prosecutor is important when determining sentence (Stacy Walter, 1999):
Throughout the cases heard this evening I watched how everyone interacted. I
noticed that Judge T relied on the prosecutor K for several of the sentencing
options. Judge T took into great consideration prosecutor K’s opinion.

Sentences may depend on the courtroom work group (Constance O’Connor, 1993):
I was often invited to sit in the judge’s chambers and allowed to observe the “behind
the scenes” negotiations. Without this direct observation, I would not have been
fully aware of the role good-natured cooperation plays in the dispensation of jus-
tice. At one point, when the judge decided to give a young defendant a break and
sentence him to a rehabilitation center instead of the county jail, the public defender
remarked “You must be getting soft, judge.” The judge laughingly replied, “No, I
just like you today and want you to be happy.” The friendly banter between mem-
bers of this particular courtroom work group seemed to be the rule rather than the
exception.

Efficiency is highly valued and may affect sentences (Constance O’Connor, 1993):
In the judge’s chambers, one public defender remarked, “Let’s get them out of here
today. I’ve got things to do.” This type of flippant attitude towards his clients may
suggest that this particular public defender is not truly interested in “doing justice”
(to borrow a term from Eisenstein and Jacob, 1977), but rather in getting the cases
in and out as quickly as possible. This study may also suggest that the public
defenders cooperate with the district attorneys to the detriment of the defendants in
order to “speed things up.”

The courtroom work group cannot “do justice” without cooperation from all members
(Constance O’Connor, 1993):

One work group member shared a story with me about a young, highly ambitious
district attorney who only lasted a short time at this courtroom. This district attor-
ney insisted on “playing strictly by the book” and refused to participate in the coop-
eration and negotiation that had become the hallmark of this work group. After
several weeks, the courtroom was hopelessly bogged down and the number of cases
moving through the system had slowed to a trickle. The judge went to the uncooper-
ative district attorney’s boss and had him transferred out and replaced by a more
compliant DA. Life returned to normal in the courtroom. Clearly, this demonstrates
that in this particular courtroom, cooperation is not only desirable but is required if
one wishes to maintain a position within the work group.

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Sentencing Reforms to Deal with Discrimination 459

SUMMARY

In this chapter, we examined how sentencing happens, that is, which factors affect
sentences and how the hearings progress. We learned that most judges find sen-
tencing to be a difficult task, and that is no surprise given the multiplicity of items
that play a role in sentencing outcomes. We also discovered that most judges are
unable to keep extra-legal and organizational factors out of their sentences, no mat-
ter how well-intentioned they are. Finally, we explored discrimination in sentenc-
ing, its causes, and some reforms that have been developed to reduce its incidence.
In the end, even after a number of reforms, sentencing is still a difficult task. See
Box 14.12 for some student observations regarding sentencing.

“We’re appealing!” How many times have you heard that yelled from the top
of the courthouse stairs? The next chapter will present information on what appeals
are and when they are allowed. It will also clarify the types of rulings available fol-
lowing an appeal. For many defendants, the process ends with this chapter, but for
those defendants who are successful in getting their appeals heard, we have one
more step. . . .

D I S C U S S I O N Q U E S T I O N S

1. How could the contents of a PSI be biased or incorrect? Could such biases/inaccuracies be attrib-
uted to individuals other than the probation officer who made the report? Provide some examples
to explain your answer.

2. What, in your opinion, is the best time to complete the PSI? Why do you feel that way?

3. What are some key ways sentencing hearings are similar to trials? Key ways in which the two
processes differ?

4. Do you feel it is fair for judges to be able to increase sentences based on prior cases that did not
result in convictions?

5. Read the interview excerpts in Box 14.2, considering how these judges view lying and the prob-
lems it poses for them. How is perceived perjury tied to satisfaction with career and how could it
affect verdicts or sentences?

6. Read the interview excerpts in Box 14.5, considering what the judges value and how they view
their role in the courts. Do you agree with their reasoning?

7. Read the interview excerpts in Box 14.6, considering circumstances when their rationales could
be viewed as discrimination, or the beginnings of discrimination. Can you imagine at least one
set of circumstances under which you would agree with the judges’ reasoning?

8. Read the quotes in Box 14.7. How could efficiency and saving time affect justice?

9. Read your local newspaper to get a small sample of criminal sentences. What are some examples
of disparities you noted that probably do not indicate discrimination? Do you see any disparities
that might be rooted in discrimination? What criteria did you use to classify the sentences into
the two categories?

10. Look over the factors that the judge, either attorney, or other individuals (e.g., commentators or
family and friends of the defendant or victim) said were important in the sentences. Classify
them into the three categories of factors: legal, extra-legal, organizational. Do you notice any

patterns between the factors that judges and prosecutors claim are used versus those mentioned
by other individuals?

11. What are some ways that perceptions of discrimination affects faith in the justice system? How
could a lack of faith among the public cause problems for the courts?

12. Why haven’t the many sentencing reforms eliminated perceptions of discrimination in sentenc-
ing? Have the reforms been beneficial in any ways?

13. List five reasons that you support “three strikes” laws and five reasons you think they should be
changed. Overall, what is your opinion about “three strikes” laws?

N O T E S

1. The recommended sentence was not imposed, as the sentencing judge (Judge Marvin Frankel,
who was cited in the previous section) wanted to order something more punitive.

2. Some probation officers use the acronym H.O.T. to help them remember that PSIs should be hon-
est, objective, and thorough.

3. Ironically, twenty-one years after his conviction the lead witness recanted his testimony, earning
Spaziano a new trial (Another delay in battery trial, 1997).

4. At the time of this writing, Tate’s case was under appeal and the governor of Florida had been
requested to grant clemency in the case by vacating the sentence or imposing a shorter term of
three years in prison that was offered in a plea bargain.

5. Of course, those with high social standing can also expect negative press coverage if their behav-
ior shocks their community. News of the downfall of politicians, clergy, youth group leaders,
school teachers, principals, and other individuals who are “in the limelight” or whose positions
involve public trust who have been accused of even minor crimes can sometimes set off a negative
publicity frenzy. When Karen Howard, wife of the public relations director for the Philadelphia
Eagles, killed a man in a 1998 hit-and-run accident, public outcry was unbelievably negative, with
members of the public saying they were glad that her wealth was unable to buy her out of jail time,
and with some going so far as to say they hoped she was sexually assaulted while incarcerated and
were glad that she would be unable to see her young son for a year. In fact, it is possible that
Howard was charged and received the relatively harsh sentence because of her prominence in the
community and the outcry against her.

6. As mentioned earlier in this chapter, probation officers’ personalities and characteristics may
affect their recommendations, and therefore, sentencing itself.

7. This decision was a civil judgment concerning “separate, but equal” policies and did not specifi-
cally address sentencing differences. It does, however, illustrate the institutionalized inequity of
the time.

8. Some scholars argue that some of the criteria that are utilized to establish sentences are associated
with race (Petersilia and Turner, 1985). Blacks, for example, are more likely to injure their victims
or use weapons during their crimes.

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Step 15

Appeals

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465

❖

We have seen the human drama that accompanies trials and sentencing hearings.
The intense emotional atmosphere that can develop during pivotal moments of the
trial demonstrates the seriousness of the proceedings in the eyes of many of the
participants and observers. The highly formal, ritualized nature of court procedures
is the “official framework” of trials, yet the actual proceedings are often quite per-
sonalized, idiosyncratic, and charged with emotion.

A defendant’s conviction, however, is often only the end of one phase of the
legal process, with the most critical stage yet to come. How can this be? The
answer is that a finding of guilt in a trial court may raise legal issues that are
reviewable by an appeals court.

Trial courts at both the state and federal level are charged with finding out the
facts in a case and deciding how the law applies in particular cases. In contrast, the
function of appellate courts is examining claims that the law was improperly
applied or that legal procedures were not correctly followed. An appeal is “a pro-
ceeding in which a case is brought before a higher court for review of a lower
court’s judgment for the purpose of convincing the higher court that the lower
court’s judgment was incorrect” (Merriam-Webster, 1996).

WHY ARE APPEALS IMPORTANT?

At first glance, it may seem obvious that appeals are important to the parties in a
case, and indeed this is true. The appeals process is part of the system of “checks
and balances” designed to ensure that defendants have received due process at ear-
lier stages of the criminal justice process. Thus, appeals are a critical means for
pursuing specific legal goals in individual cases.

However, appeals are also important because they are one of the principal
avenues by which legal issues in a particular area of law are shaped. The principle
of stare decisis means that precedent is highly respected in the law, but at the same

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time legal, societal, and technological changes bring new issues before the courts.
These new issues often raise legal questions that become the subject of appeals,
and each appellate decision in turn contributes to legal precedent on the issue. An
appellate court’s holding in a case provides the court’s decision, the case facts that
were the basis for the decision, and the judicial reasoning underlying the decision.
The holding serves as a precedent that is then applicable to all similar cases arising
in future in the appellate court’s jurisdiction.

In contrast to a trial court’s decision, which is binding only on the parties to a
particular case, an appellate court’s decisions serve as precedent that is legally
binding on all lower courts within its jurisdiction. This means that all lower courts
must decide cases in a manner consistent with the applicable precedent in that
jurisdiction.

Appellate court decisions in one jurisdiction also often serve as a source of
guidance to courts in other jurisdictions that are seeking ideas on how to address a
particular legal issue. Because appellate decisions constitute legal precedent that
lower courts in the appellate jurisdiction must adhere to when deciding similar cases,
appellate courts are thus major sources of public policy on criminal justice issues.

This creates continuing controversy between those who argue that courts are
deliberative forums that are well positioned to perform policymaking, because
appointed appellate judges are comparatively immune to the political pressures sur-
rounding elected officials, and others who disagree. Legislators, as elected officials,
are susceptible to influence by well-organized interest groups and lobbyists, and
must depend on the favor of a certain proportion of the electorate if they wish to
continue to hold office (see Box 15.1 on Rose Bird). In contrast, courts are better
able to protect the rights of the minority, which otherwise might be suppressed by
majority rule (Smith, 2000). For example, the right of individuals who wish to tram-
ple and burn the American flag has been protected by the U.S. Supreme Court as an
expression of free speech under the First Amendment (Texas v. Johnson, 1989).
Therefore, legal protection of the exercise of free speech is not contingent on the
popularity of the speech or the speaker. Thus, the right of civil rights activists to
demonstrate and lead protest marches is protected by the First Amendment; but so is
the right of extremist white supremacist groups to march and protest as well.

Critics argue that policymaking by courts usurps the legislative function, and
that, in addition, courts are not well suited to policymaking for a number of reasons
(Smith, 2000):

• Judges do not have expertise in specific policy issues.
• Courts can consider policy issues only if and when they arise in cases

before the court.
• Courts must rule narrowly on the legal issues in a particular case.
• Courts cannot rule broadly on matters of policy outside the scope of the

specific issues in a case.

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The significance of appellate courts becomes even clearer if you consider that
our legal rights have an impact only insofar as legislatures and courts choose to inter-
pret what these rights mean in practice. In particular, federal and state constitutional
rights often raise legal issues that are addressed through the appellate process. For
example, does the Sixth Amendment right to trial by jury apply to minors whose
cases are adjudicated in juvenile court (McKeiver v. Pennsylvania, 1971)? Does the
Fourth Amendment’s prohibition against unreasonable search and seizure allow
police officers to fire in order to prevent a suspect from fleeing (Tennessee v. Garner,
1985)? The provisions of federal and state legislation can raise similar questions for
appellate courts (see Box 15.2 on HUD [Housing and Urban Development] policies).

Public policymaking on crime and criminal justice raises questions about pol-
icy applicability, scope, and exceptions. We’ve actually looked at some examples of
this already on our journey through the courts. For example, “three strikes and
you’re out” sentencing statutes raise questions about what counts as a “strike”: Do
juvenile offenses count? Do nonviolent offenses count? Should offenses committed
ten or twenty years before the current offense count? Each of these questions has
been asked on appeal. See Box 15.3 for another example of how legislative provi-
sions can provide plenty of questions for appellate courts to consider.

Appellate decisions therefore serve as a bridge between legal theory and
practice, as a means of translating abstract concepts into concrete policies, proce-
dures, and requirements. For example, what does “due process” mean in practice
for a person accused of a crime? As we saw earlier in the book, it was only after a
series of appellate court decisions from different cases spread over a span of more
than 150 years that the concept of due process came to include the right to have an
attorney provided if you cannot afford to hire one.

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Why Are Appeals Important? 467

BOX 15.1

Judicial Independence, Accountability, and the Death Penalty

Rose Bird was the Chief Justice of the California Supreme Court from 1977 to 1986. During
that time, sixty-one California death sentences were appealed to her court, and she voted to
overturn the sentence in each case. Many California voters were outraged by this, and legal and
political commentators accused Justice Bird of extreme judicial activism—of letting her oppo-
sition to capital punishment color her judicial decisions. Bird supporters argued in rebuttal that
her decision was based on the specific legal issues particular to each case. In 1986, Justice Bird
and two of her colleagues on the court were removed from office after failing a routine “confir-
mation vote” by voters. During the acrimonious public debate over Bird’s handling of capital
cases, some of Bird’s opponents touted the slogan “Bye, Bye, Birdie” (Balzar, 1985). After
being ousted from the court, Rose Bird lived a life of quiet seclusion until her death in 1999.

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468 Appeals

BOX 15.2

You May Be Your Brother’s Keeper, After All

Herman Walker was seventy-seven years old, disabled, and living in public housing. When the
woman he hired to assist him was found with a crack-cocaine pipe in her possession, Mr. Walker
faced eviction. In another case, a woman living in public housing faced eviction after her adult
granddaughter was arrested by police for drug possession five blocks away from her apartment;
another grandmother faced eviction when her grandkids were found in the parking lot of her pub-
lic housing building smoking marijuana (Finz, 2000). Another tenant, a pregnant woman with a
toddler, was awakened by police when they arrested an individual who was in her living room
and allegedly had heroin in his jacket pocket. The police had a search warrant to enter the apart-
ment and look for two people alleged to be drug dealers. The tenant says the people did not have
permission to be in her living room, and that her young child had accidentally let them in while
her mother was asleep. The woman and her daughter face eviction (Egelko, 2001).

What’s going on here? The common thread linking these cases is a federal anti-drug pol-
icy. In 1991, the federal Department of Housing and Urban Development, the agency that con-
trols public housing, initiated a “one-strike” policy for public housing tenants. In an effort to
control crime, the policy stated that public housing tenants would be evicted if any member of
the household, including visitors, were involved in illegal drug activity either on or off the
premises (Egelko, 2001). The policy, which could affect approximately three million tenants in
public housing across the nation (Egelko, 2001), is set up to encourage tenants to monitor the
behavior of people who live with, work for, or visit them, and to punish criminal activity by loss
of a scarce resource—subsidized housing. But critics charge that this simply punishes tenants
for the crimes of others when the tenants had no knowledge of such crimes, and that the policy
illustrates how the war on drugs disproportionately affects the lives of people who are poor and
people of color.

Tenants and their lawyers challenged this policy in federal court, and a judge issued an
injunction stopping the evictions, “saying the law appeared ‘irrational’ because the tenants had
no idea of the drug use” (Finz, 2000, p. A20). However, as the appeals process continued, the
U.S. Court of Appeals for the Ninth Circuit reversed the injunction, allowing the evictions to go
forward. However, evictions were halted once again when the appellate court decided to rehear
the case en banc (that is, with the full panel of judges rather than the typical three judge panel).
The court later ruled that evictions were permissible only when the tenant “knew or should have
known” about the drug activity (Egelko, 2001) (Egelko, 2001; Finz, 2000).

Upon appeal by the tenants, on March 26, 2002, the U.S. Supreme Court upheld the con-
stitutionality of Congress’s “zero tolerance” eviction policy for public housing tenants, even if
the tenants were unaware of the drug use of their family members, friends, caretakers, or visi-
tors (HUD v. Rucker et al., 2002) (Egelko, 2001; Finz, 2000). The policy rests on the assump-
tion that the behavior of family, friends, and visitors of the lease-holding tenant is under the
tenant’s control, even if the drug-related activity took place blocks from the actual premises of
the apartment or the building. Do you think this is a reasonable assumption?

Source: Excerpts from the San Francisco Chronicle reprinted with permission.

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Why Are Appeals Important? 469

BOX 15.3

What’s the Right Meaning of “Wrong”?

In California, criminal defendants who wish to present an insanity defense have the burden of
proving that they were insane at the time of the crime, under the following definition of insanity:

In any criminal proceeding. . . . in which a plea of not guilty by reason of insanity is
entered, this defense shall be found by the trier of fact only when the accused per-
son proves by a preponderance of the evidence that he or she was incapable of
knowing or understanding the nature and quality of his or her act and of distin-
guishing right from wrong at the time of the commission of the offense. (California
Penal Code § 25 (2001)(b)).

This definition was the subject of appeals related to various aspects of the wording. For
example, this definition of insanity is a variation of the famous M’Naghten standard (see Step
2). However, whereas the original M’Naghten standard required a defendant to prove only that
she or he was incapable of understanding the nature and quality of the act or incapable of know-
ing right from wrong, California’s version appears to require defendants to prove both of these
things in order to pass the standard. When a defendant appealed this apparently stricter require-
ment, the appellate court determined that the legislature had not intended to depart from
the original M’Naghten standard. Therefore, despite the wording of Penal Code Section 25
2001(b), only one prong of the test must be met; in essence, the appellate court found that “and”
really should be interpreted as “or,” a critical difference for defendants presenting an insanity
defense (People v. Horn, 1984; People v. Skinner, 1985).

What does it mean to speak of “knowing right from wrong”? In another case stemming
from the wording of California’s insanity definition, the appellate court clarified that “wrong”
refers to society’s generally accepted moral standards, not the defendant’s subjective moral
standard of right and wrong (People v. Stress, 1988).

BOX 15.4

The Great Writ

“You have the body.” That is the literal translation of the Latin phrase “habeas corpus,” which
is the name of the appeal filed by thousands of people incarcerated in jails and prisons. habeas
corpus appeals reflect a long legal tradition dating back to medieval times; the Magna Charta
refers to this appeal as “the Great Writ” in recognition of its power as a legal mechanism for
prisoners to question the legitimacy of their confinement by the government. The basis of a
“habeas appeal,” as it is commonly called, is an assertion that the appellant is being held ille-
gally by the government. The appeal lays out the legal arguments to support this assertion and
requests that the court free the person who is unjustly detained.

How did the Great Writ come to be? Recall the appeal the incarcerated jurors in the Penn
and Mead trial (discussed in Steps 4 and 12) used to attain their freedom: that they were

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470 Appeals

THE POWER OF JUDICIAL REVIEW

The power of appellate courts to review the decisions of government officials in the
legislature, the executive branch, and lower courts is the power of “judicial
review.” This power allows the U.S. Supreme Court and the supreme courts of
each state to review legislation, court decisions, and executive acts that are chal-
lenged in court to determine their constitutionality. Note, however, that the power
of judicial review does not mean that courts can independently decide to oversee
the laws enacted by the legislature and the executive branch. Instead, appellate
courts can only consider the issues arising from cases brought before them. Al-
though judicial review empowers appellate courts to consider the legal issues
raised on appeal from trial courts, the legal basis of the right to appeal is not found
in the Constitution. Rather, statutory provisions at both the state and federal levels
provide the legal basis for appeals of trial court decisions. The most famous articu-
lation of the concept of judicial review was by Alexander Hamilton in The Federal-
ist (No. 78), and by the U.S. Supreme Court in Marbury v. Madison (1803). The
Marbury opinion illustrates the court’s reasoning on the logic of judicial review:

It is emphatically the province and duty of the judicial department to say what the law is.
Those who apply the rule in particular cases, must of necessity expound and interpret that
rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply
to a particular case, so that the court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the constitution, disregarding the law; the
court must determine which of these conflicting rules governs the case. This is of the very
essence of judicial duty. (p. 177–178)

COURT HIERARCHY

As we saw in Step 4, courts are organized in a hierarchy that defines each court’s
jurisdiction in relation to the other courts. At the state level, the decision of its
supreme court is legally binding on the lower courts (both appellate and trial) in
that state. However, the court decisions of one state are not legally binding on
courts in a different state.

BOX 15.4(continued)

wrongfully imprisoned by the English government. This was the landmark case that ultimately
resulted in the Habeas Corpus Act of 1679 becoming law in England (Rosenn, 1983). American
colonists imported the Great Writ, and thus Congress provided for federal habeas corpus peti-
tions in the Judiciary Act of 1789. The scope of habeas corpus was expanded to state courts in
later years (Rosenn, 1983).

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Court Hierarchy 471

At the federal level, the decisions of higher federal courts are binding on
lower federal courts. With respect to Constitutional issues, the decisions of federal
courts are usually binding on state courts. On Constitutional matters, the ultimate
appellate court is the U.S. Supreme Court.

The appellate process follows an established progression, with appeals
ascending up the ladder of the court hierarchy in sequence. After the trial, an appeal
must be submitted to the appropriate lower appellate court; appeals cannot be
directly submitted to a higher appellate court. Criminal convictions in state trials
can be appealed to federal courts only if there is a federally guaranteed right at issue
(i.e., a right guaranteed by the U.S. Constitution or federal legislation). Why? Under
the framework specified in the Constitution, the task of defining crimes and punish-
ments is primarily a matter for state legislatures rather than the federal government.
Thomas Jefferson said in 1798 that: “The power to create, define, and punish such
other crimes is reserved, and of right appertains solely and exclusively to the respec-
tive States, each within its own territory” (Jefferson, 1798). This is why most crimi-
nal cases (and thus appeals) arise at the state level, although in recent years there has
been an increasing trend toward national legislation giving rise to federal cases (for
example, RICO, the Racketeer-Influenced Corrupt Organizations statute passed by
Congress as a crime-fighting mechanism).

Though tribal court systems are independent, the courtroom of the Navajo nation Supreme Court is
typical of many state and federal appellate courts. Three judges hear cases, and if one of the judges
cannot sit on a particular case (e.g., due to illness), a replacement judge is temporarily appointed. The
five flags in the background represent the jurisdictions governing the Navajo Nation: the federal gov-
ernment; the states of New Mexico, Utah, and Arizona; and their own tribal laws. The Navajo Nation
does not have an intermediate court of appeals; appeals are heard by the Navajo Nation Supreme
Court. SOURCE: Courtesy of Jon’a Meyer.

Because the federal and state court systems have a parallel structure to
address issues of federal and state law, respectively, state criminal courts are gener-
ally autonomous with respect to matters of state law. If, for example, a criminal
defendant wishes to appeal on the basis that her rights as provided in state legisla-
tion were violated, then the appeal is a matter for state appellate courts. However,
the Supremacy Clause of the Constitution (U.S. Constitution Article VI, para-
graph 2) provides that federal laws take precedence over state laws when there is a
conflict between the two. Thus a state criminal defendant may claim that his feder-
ally guaranteed rights were violated, and file an appeal in the state appellate court.
If the appeal is decided in favor of the defendant, the prosecution may appeal this
finding in a higher level appellate court. However, if the defendant loses the appeal
after having exhausted all state court avenues, then (and only then) may the defen-
dant appeal to the appropriate federal appellate court.

APPELLATE JUDGES

Federal judges at both the trial and appellate levels are appointed by the President
of the United States, as provided for in the Constitution. Nominees must be

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472 Appeals

U.S. Supreme Court
Nine justices appointed

for life

FEDERAL

Court of Appeals
Thirteen intermediate appellate
courts, referred to as “circuit
courts.” Three-judge panels.

Trial Courts

Ninety-one district courts

State Supreme Courts
Courts of last resort at

the state level. Panels of
seven or more judges

STATE

Appellate Courts
Intermediate

appellate courts.
Three-judge panels.

Trial Courts

Note: Most states have one level of
appellate courts, but a few states
have two levels.

Federal and State Court Systems

FIGURE 15.1 Court hierarchy

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The Appellate Process: Procedural Issues 473

approved by the Senate. State appellate court judges are usually elected, but may
be appointed in some jurisdictions (depending on the level of the appellate court).

APPEALS OF LAW, NOT FACT

Appeals are made on the basis of matters of law, not fact. What this means is that
the legal basis for an appeal must be a claim that the law was misapplied, either
substantively or procedurally. An appeal cannot be made on the basis of disputes
about the facts of the case, or dislike for the outcome of the case. For example, if
you are convicted of a crime, you generally cannot appeal solely because you
believe you are innocent. In rare cases, defendants have appealed their convictions
using the argument that the evidence was not sufficient to support a conviction.
However, such appeals are rarely successful. Rather, your appeal would have to be
based on legal issues, such as whether your trial provided appropriate procedural
safeguards.

Appellate courts thus usually do not relitigate factual issues that were
brought up at trial. The facts as noted in the trial court’s record of the proceedings
are assumed to be correct (and this is why the court reporter’s work is so impor-
tant). This assumption reflects the belief that the judge (and jury, if there was one)
would logically be in the best position to determine the facts of the case, compared
to the judges of the appellate court. The issue for the appellate court is whether the
law was properly applied to the facts in the case as they are described in the trial
court records. Thus, appellate decisions are based on the facts and applicable law
as described in the transcript of the trial proceedings, in the briefs and supporting
documents filed by the parties to the appeal, and in oral arguments, which may be
given in some appeals.

Under certain narrowly defined circumstances, an appellate court may hold
an appeal de novo (anew). In this instance, “The appellate court uses the trial
court’s record but reviews the evidence and the law without deference to the trial
court’s rulings” (Black’s Law Dictionary, 1999, p. 94).

THE APPELLATE PROCESS: PROCEDURAL ISSUES

Standing: Who Can Appeal?

In criminal cases, both prosecution and defense can appeal a court’s decision on var-
ious motions (such as to exclude evidence). However, whereas defendants can
always appeal a conviction if appropriate legal grounds exist, the government gener-
ally cannot appeal an acquittal (State v. Jones, 1809). Once a person is acquitted, they
cannot be tried for the same crime. For example, recall the case of Mel Ignatow, the
man who was acquitted of murdering his girlfriend, only to have photographs

documenting his crime turn up later (see Step 5). In very limited circumstances, the
government may be able to appeal an acquittal, such as when it was due to the
defendant’s bribery of the judge in a bench trial (People v. Aleman, 1994). In contrast,
a number of other countries, such as Israel, Pakistan, Singapore, and Venezuela,
allow the government to appeal acquittals (Office of Legal Policy, 1987).

However, note that the Fifth Amendment prohibition against double jeopardy
does not mean that a person cannot be tried by two different types of courts on the
same charges—for example, civil and criminal charges—or be prosecuted at both
federal and state court levels.

In order for an appeal to proceed, the appellate court must determine that the
appellant (i.e., the party bringing the appeal) has the legal right to bring the case; the
opposing party, by the way, is called the appellee. This means that the court must
determine whether the appellant has standing, meaning that the appellant has a
legally recognizable interest in the case. Standing is defined as “the status of being
qualified to assert or enforce legal rights or duties in a judicial forum because one has
a sufficient and protectable interest in the outcome of a justiciable controversy and
usually has suffered or is threatened with actual injury” (Merriam-Webster, 1996).

Here is an example of standing: In wrongful death lawsuits, people who are
legally defined as family members of the deceased have standing to file the suit,
whereas others generally do not. In San Francisco, the death of Diane Whipple,
who was mauled to death by a neighbor’s dog, raised the issue of standing. Whip-
ple’s long-term domestic partner, Sharon Smith, wanted to sue the owners of the
dog for wrongful death but did not have legal standing to do so. Coincidentally,
two months before Whipple was attacked, California legislator Carole Migden had
introduced legislation to expand the California legal definition of family members
to include domestic partners. If the legislation passes, domestic partners would
have legal standing to sue for wrongful death in California (Hoppin, 2001). Box
15.5 describes a historic example of the controversy that the issue of standing can
embody.

If a court determines that the appellant has standing, the case may proceed. If
not, the court dismisses the case for lack of standing, which means only that this
particular appellant cannot raise the issue. However, another appellant who has
standing is free to raise the same issues as part of a new case.

THE STEPS OF AN APPEAL

When a trial ends in conviction and the defense decides to appeal, there are certain
steps which must be followed, as listed below. Depending on whether the appeal is
filed in state or federal court, and the particular practices of the jurisdiction in
which the appeal is filed, there will be variation in the amount of time allowed for
each step, and the exact procedures the defense must take to complete each step:

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474 Appeals

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The Steps of an Appeal 475

BOX 15.5

Without a Leg to Stand On:
The Issue of Standing in the Corn Tassels Case

The year was 1830, and the Cherokee Nation was in serious conflict with the state of Georgia
(before the Trail of Tears, during which they were forcibly marched from their ancestral home-
land to Oklahoma, the Cherokees lived in Georgia, where they were viewed as a nuisance by
Georgians). Although the Cherokees, and other Native American nations, considered them-
selves to be sovereign, the state of Georgia had passed a law allowing them to assume jurisdic-
tion when crimes occurred on Cherokee land.

Among those arrested by the state under its new law was Corn Tassels, a Cherokee Indian
who was accused of killing another Cherokee. The Cherokee were understandably upset because
they had intended to prosecute Corn Tassels themselves and viewed the state’s actions as pure
kidnapping. Imagine how upset Americans would be if a foreign nation came into this country
and arrested and prosecuted an American citizen for a crime committed in the United States.

In September of 1830, the Georgia state court found Corn Tassels guilty and sentenced
him to hang. An attorney working for the Cherokee Nation drafted an appeal, arguing that
treaties signed with the Cherokees guaranteed them the right to self-government and that
included control of their criminal justice system. The Cherokee fought, and predictably lost,
appeals in the state of Georgia, and then sought a final appeal with the relatively new U.S.
Supreme Court, filing a writ of error that argued that Georgia’s actions were in error and vio-
lated the U.S. Constitution.

The U.S. Supreme Court granted the writ, and demanded that Georgia appear before their
court to explain why the Corn Tassels situation “should not be corrected.” But Georgia officials
refused to submit themselves to any scrutiny, saying that “interference” by the U.S. Supreme
Court “in the administration of the criminal laws of this state . . . is a flagrant violation of [Geor-
gia’s] rights.” On December 24, 1830, ten days after the writ had been granted, Georgia officials
executed Corn Tassels, rendering the appeal moot.

This case illustrates several concepts of courts. First is the idea of standing, which is pos-
sessed only by individuals who face actual injury or harm and who have a protectable interest in
a case outcome. Even though the Cherokee Nation wanted the case to go forward, it could not
because the individual with standing (i.e., Corn Tassels) could no longer press the case forward
or benefit from the Court’s intervention. It is irrelevant that his tribe and attorneys wanted to
keep the case moving ahead in hopes that the U.S. Supreme Court would invalidate Georgia’s
law. It was also irrelevant that Georgia had directly interfered with the U.S. Supreme Court’s
review by prematurely executing the defendant. What was important was that Corn Tassels him-
self could no longer maintain the case and so the appeal was rendered moot.

The case also illustrates the relative powerlessness of the U.S. Supreme Court when faced
with Georgia’s extreme defiance. At that time, the High Court was fairly new and had not estab-
lished its power or gained respect from the other branches of government or the American citizens.
Instead, the High Court was somewhat afraid to anger the executive or legislative branches of a gov-
ernment that was rather hostile towards Native Americans. Today, this situation would not occur. If
the U.S. Supreme Court ordered any state to appear and explain a situation, no state would feel that
they could ignore such a request and act on their own (Norgren, 1996, pp. 60–62, 95–98).

• The appellant files a notice of appeal within the specified time after the
conviction.

• The appellant files the trial court record (e.g., the transcripts) and support-
ing documents with the appellate court.

• The appellant and appellee each file briefs. A brief outlines the basic facts
of the case, the argument being made by the party filing the brief, and lists
cases serving as supporting precedents. Briefs are not so named because
they are short memos; indeed they can be quite lengthy. Instead, the name
reflects the fact that they “brief ” the court on the case.

• In most courts, the judges will hear short oral arguments from the parties
in the case. Typically, each side is given half an hour to present its case.

• When the court issues a decision, it is usually accompanied by a written
opinion describing the court’s reasoning for the decision.

Timeliness of Appeal

Procrastination is not an option when seeking appellate review. Failure to file an
appeal by the proper deadline will cause the appeal to fail regardless of its legal mer-
its. The issue of timeliness is particularly important in capital cases, where clients
can pay the ultimate price for their attorneys’ failure to file the appropriate court

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476 Appeals

BOX 15.6

When Timing Is Everything

Russell Tucker was convicted of murder and sentenced to die. The defense attorneys handling
his death penalty appeal failed to file some of the legal documents relating to his appeal by the
deadline required in the state of North Carolina. When Tucker’s execution date was set, attorney
Steven Allen learned that he and the other attorney had missed the deadline by less than a week.
Failure to meet the deadline meant their client faced certain execution. What Allen did not real-
ize was that his co-counsel, David B. Smith, had sabotaged the client’s appeal by deliberately
missing the deadline and causing Allen to miss the deadline. Recall that earlier in Step 6 we
read that David B. Smith had decided that their client “deserved to die” (Nowell, 2000, p. A14).

David B. Smith’s misconduct came to light when he decided to reveal his role in the case,
noting that he had “failed” and that he had to tell the truth. Smith reported that when he realized
his fellow attorney Allen had misunderstood the filing deadline for the appeal, he avoided work-
ing on the case or correcting Allen’s misperception about the deadline. After learning of Smith’s
admission, Allen appealed, arguing that Tucker should be allowed to have new attorneys
appointed. The prosecution has opposed the appeal, and as of this writing the status of the
appeal is not known (Nowell, 2000).

Source: Adapted from Nowell with permission of the Associated Press.

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The Steps of an Appeal 477

documents on time. Inexperienced and/or overworked attorneys have inadvertently
missed such deadlines, but the case in Box 15.6 describes a very different story.

The issue of timeliness is particularly well-illustrated in death penalty cases
where defendants sentenced to death later wish to appeal on grounds that new evi-
dence will demonstrate “actual innocence.” The incidence of such appeals has
been increasing since the advent and improvement of technology such as DNA
testing, which can be applied to evidence saved in cases prosecuted before DNA
technology was available (or DNA analysis was sufficiently reliable) to be used to
exculpate the defendant.

Whether through exoneration via DNA evidence or other types of evidence, a
number of people have been freed after mistaken convictions: “Nationwide,
eighty-five death-row inmates (or more than one percent of the approximately
6,000 men and women sentenced to death since the U.S. Supreme Court reinstated
the death penalty in 1976) have been released from prison after their convictions
were overturned by evidence of innocence” (Hart and Dudley, 2000, p. 2). As
noted by one congressman, “innocent persons served an average of seven and one-
half years on death row” (Leahy, 2000, S198). Nevertheless, such appeals are still
relatively rare, and rarely successful. However, given increasing public concern
with the possibility of mistaken convictions in death penalty cases, this situation
could change in the future. The issue is also troubling to at least one Supreme
Court jurist: Justice Sandra Day O’Connor commented at a speech to a lawyer’s
group that: “If statistics are any indication, the system may well be allowing some
innocent defendants to be executed” (Whitworth, 2001, online). Justice O’Connor
has supported the death penalty in most, although not all, cases involving capital
punishment that have come before the court during her tenure.

An appeal based on the claim that evidence of “actual innocence” has been dis-
covered post-trial must be filed within a specified time, which varies according to the
nature of the appeal (e.g., an appeal for retrial, a writ of habeas corpus, or another
type of appeal) and the jurisdiction. According to The Innocence Project, “thirty-
three states require that claims of innocence based on new evidence be brought
within six months of the final appeal” (Scheck, Newfield, and Dwyer, 2000). Of the
remaining states, seven will permit such appeals at any time (Hart and Dudley, 2000).

So what happens if the evidence is not discovered until the deadline for
appeal has passed? An inmate on death row cannot apply directly to a federal
appellate court with a claim of new evidence of actual innocence. Instead, the
inmate must first exhaust all state remedies, according to the U.S. Supreme Court
(Herrera v. Collins, 1993). More critical from the defense perspective was the
Supreme Court’s ruling in Herrera, a capital case, which established that a mere
claim of actual innocence is not sufficient in and of itself to trigger appellate
review. Rather, the court held, there must be a violation of constitutional rights:
“Few rulings would be more disruptive of our federal system than to provide for
federal habeas review of free standing claims of actual innocence” (Herrera v.
Collins, 1993, p. 401). The justices rejected appellant Herrera’s claim that the

constitutional issue at stake was the fact of his impending execution despite new
evidence of his innocence. Herrera, who had been convicted of killing two peace
officers on the basis of both physical evidence and his own confession, did not dis-
pute the propriety of his conviction given the evidence presented at the time of trial.
Rather, he contended that eight years after conviction, he now had exculpatory new
information in the form of sworn affidavits attesting that his deceased brother was
the actual killer of the officers: an affadavit from his nephew, who was nine at the
time of the crime, swearing that he had seen his father killing the officers; and an
affidavit from a family friend who stated that the dead brother had admitted the mur-
ders to him. Herrera argued that he was innocent and that therefore, his execution
would constitute a violation of the Eighth and Fourteenth Amendments.

In the Court’s opinion that affirmed Herrera’s conviction and sentence, the
justices noted that the original evidence presented at trial strongly indicated his
guilt. They also questioned the fact that the affidavits consisted of hearsay and con-
tained contradictory information, and that no explanation was offered for why the
affidavits had not been produced years earlier at Herrera’s trial. The Court, in deny-
ing his petition for examination of the claimed new evidence, stated that the proper
avenue was to seek recourse in state courts, but that given that the timeline for fil-
ing such an appeal was long past, he should explore other options: “History shows
that the traditional remedy for claims of innocence based on new evidence, discov-
ered too late in the day to file a new trial motion, has been executive clemency”
(Herrera v. Collins, 1993, p. 417).

APPEAL OF ISSUES ALREADY ARGUED

The general legal principle underlying appeals of criminal law and procedure is
that the issue being appealed must have been raised earlier at trial. For example,
during the trial the defense may raise an objection to the prosecution’s introduction
of a particular witness. Another common basis for appeal is the assertion that the
jury was not properly instructed. However, if there was no objection to the instruc-
tions given at the time of trial, there is generally no basis for raising the issue de
novo. There are some exceptions, such as when the claimed error is so blatant that,
if true, it would represent a fundamental deprivation of due process.

In general, only the final judgment of a trial court can be appealed. An excep-
tion to this is appeals that are made during the course of the trial, which are called
interlocutory appeals. These address issues that require a decision by the trial
judge before or during the course of trial, but which do not end the case (so-called
interlocutory orders). In general, there is no right to interlocutory appeal except in
certain specified circumstances. The procedural rules governing interlocutory
appeals require that the trial court decision to be appealed must be final before it
can be appealed, and the issue must be collateral to the merits of the case (which
are appropriately the subject of trial). The issue must be so significant that waiting

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The Source of the Error 479

till the end of trial for review would significantly compromise an important right of
the appellant; in other words, interlocutory appeals are used in situations where
“immediate review is absolutely necessary to effectuate the purpose behind the
claim” (Johns, 1982, p. 385).

For example, in cases where the defendant alleges that a retrial would violate
the prohibition against double jeopardy, the defense will first file a motion in trial
court seeking the case dismissal on those grounds. If the trial court denies, the defen-
dant may then make an interlocutory appeal to the appropriate appellate court. If the
procedural requirements are met, the appeal can be considered because the purpose
of the prohibition against double jeopardy would be significantly undermined if the
defendant had to await appeal until after trial (Abney v. United States, 1977).

THE SOURCE OF THE ERROR

An appeal typically asserts that an error occurred in the trial judge’s interpretation
of the law, or in the conduct of trial proceedings. For example, the defense may
argue on appeal that the judge improperly overruled a defense objection to the
prosecutor’s cross-examination. But what if the defense committed the error, by
failing to present a crucial piece of exculpatory evidence, or failing to object to a
prosecution tactic? As a general rule, the appellant cannot appeal on the basis of his
or her own error.

So where does that leave defendants who wish to file an appeal on the basis of
the claim that they were denied “effective assistance of counsel” during their trial?
In this instance, the claim is generally filed by a new defense attorney handling the
defendant’s claim at the appeals stage. Of course, this raises the critical question of
what constitutes “ineffective assistance of counsel.” What if a defendant represents
him or herself, and does a poor job of it? Can the defendant later claim that he or
she was denied effective assistance of counsel?

Harmless Error

The fact that an error occurred earlier in the criminal justice process does not in
and of itself represent a denial of due process. If it is established that an error was
made, the important question is whether it constitutes harmless error—that is, an
error that the court determines did not significantly change the outcome of the case.
In contrast, the court may determine that the problem constitutes reversible
error—that is, a legal error that must be remedied by new legal proceedings.

In Strickland v. Washington (1984), a defendant convicted and sentenced to
death for murder appealed on the basis that he had received ineffective assistance
of counsel at trial, in violation of his Sixth Amendment right to counsel. The U.S.
Supreme Court reviewed the case, and the Court’s opinion discussed how this right
should be evaluated. Does the right to counsel mean the right to a defense which is

“effective”? What defines an effective defense strategy—one which is substantially
free from error? Consider the Strickland court’s perspective on effective assistance
of counsel:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal
of a conviction or death sentence has two components. First, the defendant must show that
counsel’s performance was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable . . . the defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome (Strickland v. Washington, 1984, HN10).

You Be the (Appellate) Judges: Harmless Error?

In 1984, Calvin Burdine was tried for the murder of his former roommate. Because
the killing occurred during the course of a robbery, the prosecutor filed capital murder
charges, and Burdine faced the possibility of a death sentence if his jury convicted
him. Burdine admitted participating in the robbery, but claimed that an accomplice
committed the murder. Burdine’s trial in a Texas state courtroom lasted a little over a
week, at the end of which the jury swiftly convicted him, and shortly thereafter sen-
tenced him to death. Throughout his trial and the initial unsuccessful appeal of his
death sentence, Burdine was represented by an attorney named Joe Cannon.

More than a decade later, Burdine’s new attorney, Robert McGlasson II, dis-
covered that Burdine’s trial attorney had napped at the defense table during the
trial, sometimes for as long as ten minutes. Three jurors and the court stenographer
attested to the fact that Cannon’s eyes were closed and his head down, and the trial
transcript documents long periods during the trial where Cannon made no objec-
tions or comments of any kind (Hoppin, 2000).

Does this constitute ineffective assistance of counsel? Yes, according to a
Federal District Court judge, David Hittner, who overturned Burdine’s conviction
in 1999 after noting that “a sleeping counsel is equivalent to no counsel at all”
(Robbins, 2000, online).

When the prosecution appealed this reversal, the matter went to the Court of
Appeals for the Fifth Circuit. In a split decision, two of the three judges held that,
despite the fact that Burdine’s attorney had napped during “substantial portions” of
his trial, this was not in and of itself proof that he was denied effective assistance of
counsel. Rather, the court said, the question was whether his attorney’s naps had in
fact prejudiced his defense! Burdine had not proved that, the court ruled; therefore,
the napping must be considered “harmless error.”

McGlasson submitted a relatively rare type of appellate petition asking for fur-
ther review of the case by the Fifth Circuit Court en banc (that is, a rehearing in

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The Source of the Error 481

front of the full panel of Fifth circuit judges). Burdine’s appeal was supported, but
Texas prosecutors appealed to the U.S. Supreme Court. In June, 2003, the Justices
issued a ruling that allows Burdine to have a new trial (Egelko, 2002).

The Burden of Proof

The appellant bears the burden of presenting and defending the legal worthiness of
his or her appeal. After the appellant files the legal brief describing the facts of the
case and the basis for the appeal, the appellee will file his or her own brief with the
court in reply. The appellant will have the chance to file another document in
response, and the court will decide the matter with or without hearing oral argu-
ments from the parties, depending on how the court decides to handle the case.
During oral arguments, appellate judges have the opportunity to question counsel
for the government and the defense. Sometimes, the appellate justices on the panel
begin firing questions at the attorneys well before they have completed their oral
presentations. It is important therefore to present one’s important points quickly,
and to be able to think quickly on one’s feet in order to answer questions that some-
times appear to be random and unrelated to the case at hand. Unlike the overt
attempts to appeal to emotion that can characterize attorney presentations before a
jury (or judge) at trial, appellate arguments have a distinctly different character,
reflecting the difference in audiences.

Although appellate courts originally entertained oral arguments on appeals in
virtually every case, the volume of appeals that are submitted to courts today pre-
cludes oral arguments in every case; in many cases the issues are sufficiently straight-
forward that oral arguments are not considered necessary. The trend toward

BOX 15.7

Why Spelling Matters

American appellate courts in the nineteenth century could be sticklers for detail when they
reviewed trial court records. Legal historian Lawrence M. Friedman provides an example of
what he called “record worship” run amuck:

Harwell, the defendant in a Texas case decided in 1886, had been arrested and convicted for
receiving stolen cattle. The Texas court reversed, because, among other things, the jury found
the defendant “guity” instead of “guilty.” In 1877, the same court reversed a conviction because
a jury carelessly wrote, “We, the jury, the defendant guilty,” leaving out the word “find.” This
same court, however, magnanimously upheld a conviction of “guily” in 1879, proving that a “t”
was less crucial than an “l” in the common law of Texas. (Friedman, 1985, p. 400)

“nonargument” appellate review has increased in recent years, and today most appeals
are decided by the court without hearing arguments (Cecil and Stienstra, 1987).

Standards of Appellate Review

How do appellate court judges evaluate the issues brought to them for review? It
depends on the type of legal issue that is being appealed, and the nature of and con-
text in which it is raised: An appellate court will use the appropriate standard of
review, a legal standard of proof which is used to assess the arguments made in the
appeal. It is important to understand the basis for appellate review: the assertion
that a violation of a statute or constitutional provision has occurred. Depending on
this, the legal issue is said to have arisen in a “statutory” or “constitutional” con-
text. In turn, the context of the issue determines what standard of proof is applied
during appellate review.

THE OUTCOME OF THE APPELLATE PROCESS

The principle of stare decisis gears the appellate courts toward affirming lower
court decisions, unless the appeal presents sound legal reasons for overturning the
decision. Appellate courts appreciate the value of legal consistency and the impor-
tance of finality.

When an appellate court affirms (that is, confirms) a lower court’s decision, the
appellant has lost the case. When this happens, it may be possible to petition a higher-
level appellate court to further review the matter. However, this is not an automatic
process or a matter of right. The higher appellate court is free to deny the petition, and
generally will grant the petition only if there are compelling legal issues at stake.

If the appeal is decided in favor of the appellant, a variety of possible out-
comes may occur. The lower court’s decision may be modified in part, rather than
simply affirmed or reversed. The lower court’s decision could be reversed, mean-
ing that the appellate court has “set aside” the lower court’s decision without
requiring any further legal proceedings. In contrast, the case may be reversed and
remanded (returned) to the trial court for further legal proceedings consistent with
the opinion of the appellate court. This could mean that the defendant receives a
new trial or sentencing hearing wherein the legal issues raised on appeal are reliti-
gated consistent with the appellate court’s decision. For example, if the defendant
wins an appeal on the basis that testimony from an expert witness was improperly
disallowed at the original trial, the new trial provides the opportunity for the expert
witness to present the relevant testimony. Finally, an appellate court could simply
remand the case back to the trial court without reversing the lower court’s judg-
ment. In this instance, the appellate court is essentially instructing the trial court to
conduct further legal proceedings to address the issues raised on appeal. Figure
15.2 depicts the possible outcomes.

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The “Court of Last Resort” 483

THE “COURT OF LAST RESORT”

The United States Supreme Court was created pursuant to Article III of the Constitu-
tion, and serves as the ultimate interpreter of the U.S. Constitution. The Court also
decides legal issues arising from federal statutes. The U.S. Supreme Court is the final
appellate court, sometimes referred to as “the court of last resort.” The Supreme
Court plays a unique role in the pantheon of American appellate courts because of its
authority and influence on many of the most significant legal, political, and social

Appellant loses:

Appellate court affirms
lower court decision

Outcomes favorable to appellant:

Appellate court:
• Modifies the lower court’s decision
• Reverses (“sets aside”) the lower

court’s decision
• Reverses and remands the case; the

case returns to the trial court for
further proceedings

• Remands the case. The lower court
decision is not overturned, but the
case is returned to the trial court for
further proceedings

Appellate Court Decisions

FIGURE 15.2 Appellate court decisions

BOX 15.8

Appellate Court Philosophy

According to one attorney, public expectations of the appellate process can be quite different
from the reality of the process:

Some clients, having been propagandized for years by movies and television programs showing
people winning appeals on “technicalities,” believe in the “magic wand” theory of the law. That
is, a cunning lawyer will throw a mass of issues at an appellate court, wave a magic wand, and
the judgment is reversed. Real life is different. Appellate courts try their hardest to uphold judg-
ments, because there is a great social interest in the finality of judgments. Instead of looking for
ways to reverse, appellate judges look for ways to affirm. The appeals that win are those which
show the court that something fundamentally unfair or improper happened in the trial court, and
the appellate court most likely will then reverse the judgment in order to preserve the integrity
of our system of law. (Cox, 1997, online)

issues in the nation. Although the Supreme Court usually operates in relative obscu-
rity, the presidential election of 2000 focused worldwide attention on the court, rais-
ing public consciousness about the critical role of the court in the nation’s legal and
political affairs.

U.S. Supreme Court Structure and Process

The U.S. Supreme Court includes nine justices, including a chief justice, who are
appointed by the president of the United States for life. Unlike other appellate
courts, which must review all cases submitted to them, each year the Supreme
Court grants only a small proportion of the requests for certiorari (that is, requests
for review) submitted for its consideration. For a case to be granted review by the
Supreme Court, at least four of the nine justices must agree to accept the case.
When the Court agrees to accept a case, the acceptance is referred to as “granting
certiorari,” commonly abbreviated as “cert.”

The U.S. Supreme Court considers legal questions involving constitutional
issues or matters involving federal laws; it does not review legal issues that concern
only state constitutions or statutes. With hundreds of cases submitted to it each
year, the Court must carefully select the cases that present legal issues of the great-
est significance.

Cases that involve the application of constitutional rights in new contexts
often merit the Court’s attention. This is where the justices consider how to apply

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484 Appeals

This photograph shows the courtroom of the Supreme Court Building, where the U.S. Supreme Court
has sat since 1935. In this country, there is no appeal available beyond the U.S. Supreme Court. Few
cases make it this far—only about 100–200 a year—meaning that the majority of cases are governed
by decisions rendered in lower federal courts or state supreme courts. SOURCE: Photograph by
Franz Jantzen, collection of the Supreme Court of the United States. IS

B
N

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The “Court of Last Resort” 485

constitutional principles, created more than two centuries ago, to modern-day issues.
For example, how should the Second Amendment’s right to bear arms, which was
written in the era of muskets, be applied in a world with submachine guns (see
Box 15.9)? How can the Fifth Amendment’s privilege against self-incrimination be
applied in cases where police request a DNA sample from an unwilling suspect?
How can a defendant’s Sixth Amendment right to a fair trial and impartial jury be
protected in an age of widespread, detailed media reporting on criminal cases? How
does the Fourth Amendment’s prohibition against unreasonable search and seizure
apply when law enforcement agents use new heat-sensing technology to track the
movements of a suspect inside his or her home? These are just a few of the difficult
questions that have been posed to the U.S. Supreme Court.

The U.S. Supreme Court also frequently reviews appeals that request the
Court’s assistance in resolving contradictory lower court precedents. For example,
federal appellate courts in different circuits may have treated similar legal issues in
very different ways, leading to inconsistent decisions between circuits. In some cir-
cumstances, the issue is of such significance that the Court will grant certiorari to a
case that provides an opportunity to address jurisdictional inconsistencies (see Box
15.10 for insight into what the justices value when considering petitions submitted

BOX 15.9

The U.S. Supreme Court and the Second Amendment

Consider the following provision of the Second Amendment to the U.S. Constitution:
The . . . right of the people to keep and bear arms shall not be infringed . . .

These famous words are the source of the continuing and intense public controversy over gun
crimes and gun control. What do these words mean? How should they be interpreted in the con-
text of modern society? Questions such as these are at the heart of the debate over public policies
on gun control. Many people argue that the intent of the framers of the Constitution is easily dis-
cernible in the language of the Second Amendment, and thus that the right to bear arms is
absolute and cannot legally be subject to restraints in the form of gun control policies. Others
argue that the framers never contemplated a world where sophisticated weapons that can kill
scores of people exist—weapons which are relatively easy to obtain by members of the public.

Yet many people may be unaware of the fact that the U.S. Supreme Court has never inter-
preted the Second Amendment as providing an absolute right to bear arms, despite having con-
sidered the issue several times (Etzioni, 2001). Rather, the justices have determined that policies
regulating various aspects of gun acquisition, ownership, and use are constitutionally accept-
able. Thus, people can be subject to background checks before they purchase guns. Individuals
can be required to apply for a permit before they are allowed to carry a concealed weapon. People
can be restricted from carrying guns in particular places (for example, airports, public buildings,
school); and restricted from owning certain types of guns or ammunition. State and local gov-
ernments can ban certain types of firearms from being sold, transferred, or owned—as the Dis-
trict of Columbia did when it banned handguns in 1975 (Walker, 2001).

for possible review). For example, the Court has considered several cases involving
conflicting federal circuit court definitions of various elements of federal crimes. The
Court also granted certiorari to two cases to resolve a “circuit split” on the question
of whether peace officers possess qualified immunity from civil lawsuits alleging
federal civil rights violations. In one such case, police officers invited a Washington
Post reporter to accompany them while they served a search warrant on a probationer
at his home. Unfortunately, the home was actually the residence of the culprit’s star-
tled parents, who took exception to being awakened in the pre-dawn hours by several
armed plainclothes officers, while the reporter snapped photographs. Although the
photos were not published, the parents sued the police department, alleging that the
media presence constituted a violation of their Fourth Amendment rights (see
Charles Wilson v. Harry Layne, [1999] and Hanlon v. Berger [1998]).1

Another type of legal issue that may be appealed all the way to the Supreme
Court is an instance where state or federal statutes clash with each other, or with
the Constitution. One such example exists in California, where voters recently
approved an initiative allowing marijuana use for medicinal purposes by patients
whose health-care provider had authorized this. After passage of this measure, Cal-
ifornia police and prosecutors found themselves in an awkward position; if they
continued “business as usual,” pursuing possessors and purveyors of marijuana,

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BOX 15.10

U.S. Supreme Court Rule 10: Considerations Governing
Review on Writ of Certiorari

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a
writ of certiorari will be granted only for compelling reasons. The following, although neither
controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the
Court considers:

• (a) A United States court of appeals has entered a decision in conflict with the decision of
another United States court of appeals on the same important matter; has decided an impor-
tant federal question in a way that conflicts with a decision by a state court of last resort; or
has so far departed from the accepted and usual course of judicial proceedings, or sanctioned
such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;

• (b) A state court of last resort has decided an important federal question in a way that conflicts
with the decision of another state court of last resort or of a United States court of appeals;

• (c) A state court or a United States court of appeals has decided an important question of fed-
eral law that has not been, but should be, settled by this Court, or has decided an important
federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous
factual findings or the misapplication of a properly stated rule of law.

Source: Supreme Court of the United States (online).

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Discussion Questions 487

they appeared to be violating the new state law; but if they failed to pursue such
cases, they would not be complying with federal anti-drug laws. This has led to a
variety of responses on the part of California police and sheriff’s departments: In
some locales, law enforcement proceeds against marijuana cases much as it did
before the initiative passed; in other areas, police have issued “medical marijuana
user” cards for patients to display to officers in the event they are stopped and mar-
ijuana is found in their possession (Hornblower, 1999).

In May 2001, the U.S. Supreme Court held unanimously that federal drug laws
permit no exceptions for medical marijuana use. The justices rejected the argument
that marijuana use for medicinal purposes should be permitted under a “medical ben-
efits” exception to the Federal Controlled Substances Act, finding no conclusive evi-
dence of such benefits. The Court did not directly address the legal viability of
Proposition 215, but the Court’s decision provides the legal go-ahead to California
and federal authorities seeking to shut down marijuana clubs that provide marijuana
for medical use by patients (Chiang, 2001). Despite this decision, related legal issues
remain, such as whether patients can claim a “necessity” defense if facing prosecu-
tion for medicinal use of marijuana. Thus, it is likely that these issues will be part of
the appellate docket, whether at the state or federal court level, in the future.

CONCLUSION

The appellate process is a critical step in the journey of some criminal cases
through the courts. Appellate review provides judicial oversight of trial proceed-

BOX 15.11

The “Volunteers”

Most death row inmates await the results of their appeals with baited breath, hoping for the
opportunity for a new trial or at least a temporary stay of execution; others reject such appeals.
Such “volunteers” for the death chamber insist that they want no appeals, that they want to get
on with the business of death. Some say they crave some small element of control over their
lives, or that they would prefer actual death to the living death of a “life” sentence. Some change
their minds, or may never have been serious in the first place; others take matters into their own
hands and commit suicide before they can be executed.

The truly dedicated “volunteers” are a breed apart. During the penalty phase of his trial,
convicted killer Steven Judy had this to say to his jurors: “You better vote for the death penalty,
because if you don’t, I’ll get out, and it may be one of you next, or your family.” He was exe-
cuted by the state of Indiana in 1981 (O’Neill, 1998).

Robert Massie was executed at San Quentin in California on March 27, 2001, after instruct-
ing his attorneys not to file appeals of his death penalty conviction. One newspaper account
reported that Massie “was an eager participant in his execution this morning, helping medics find
the veins needed to inject the lethal drugs that took his life.” (Zamora et al., 2001, p. A1)

ings, precedent on new areas of law, and guidance to lower courts on the applica-
tion of legal theory to new questions of fact. Although few criminal cases make it
to trial and fewer still are reviewed by an appellate court, the impact of appellate
rulings is felt throughout the criminal justice system as a whole. Appellate rulings
shape both the substance and procedure of the criminal justice process, revealing
as they do so the richness and complexity of the court system.

We have almost come to the end of our journey through the criminal court
system, but we have one final, and very important, stop: the juvenile court system.
Now that you are knowledgeable about the criminal courts and the steps of the
criminal justice process for adult defendants (and juveniles who are prosecuted as
adults), you are in a good position to learn about the juvenile courts. In the next
chapter, you will learn how the juvenile justice system differs in significant ways
from the adult criminal justice system, and the implications of this for both juve-
nile offenders and societal efforts to prevent juvenile crime.

D I S C U S S I O N Q U E S T I O N S

1. How are appellate courts different from trial courts? How do the functions, roles, and outcomes
of appellate courts set them apart from trial courts?

2. Given the starring role that stare decisis has in our legal system, how do appellate courts con-
tribute to the dynamic, changing nature of the law?

3. Consider what you’ve learned about the controversy on appellate courts as policy-making
forums. Do you think that courts have the ability to effectively shape policy, or not? Does judicial
policymaking interfere with the legislative branch’s function, or does it complement it?

4. In what ways are appellate courts dependent on other criminal justice actors, such as members of
the courtroom work group, police, and corrections personnel, to implement the rulings that
appellate courts produce? In what ways can the above-mentioned criminal justice players help
translate “law on the books” into “law in action”?

5. In Box 15.1 you read about public-housing tenants who face possible eviction because of the
drug crimes of people they knew. What are the constitutional issues raised by such a policy, and
what is your opinion of the impact of this policy?

6. Why is the “Great Writ” a very powerful legal tool? What does “habeas corpus” mean (quick,
think of the answer without peeking at the glossary)? When a petitioner makes a habeas appeal,
what is he or she asking the government to do?

7. What is the basis for the power of judicial review, and what are the limitations of this power?

8. Imagine you are a defendant in a criminal case (again, just as you did before in Step 12). Unfor-
tunately, your trial resulted in a conviction. You are convinced that if you can just tell a higher
court about the strange circumstances that resulted in an innocent person such as yourself being
charged with a felony, you’ll win your freedom. But you know that you can’t simply contest your
conviction on the grounds that you’re innocent, because you have no new evidence. Why not?
What sorts of procedural issues are typically the basis for an appeal?

9. What does the concept of “standing” refer to, and why is it a key consideration in appellate litigation?

10. Consider what you’ve learned from earlier sections of the book about capital cases, the quality of
defense representation in such cases, and the evidence that innocent people have been sentenced
to death. Given this, what role do you believe the appeals process has in capital cases? Should

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References 489

there be more avenues of appeal for defendants sentenced to death? Why or why not?

11. Consider the “sleeping lawyer” case. If you were an appellate judge, would you hold that a sleeping
lawyer is by definition providing an inadequate defense, or would you require the defendant to
prove that a napping counselor’s actions—or rather, inaction—prejudiced the chance of a fair trial?

12. Why is the United States Supreme Court called the “court of last resort”? What is the role of the
court in our legal system? In what ways do the Court’s decisions influence everyone in America?
Can you think of some examples?

N O T E

1. On the issue of media presence, the Supreme Court held: “It is a violation of the Fourth Amend-
ment for police to bring members of the media or other third parties into a home during the execu-
tion of a warrant when the presence of the third parties in the home was not in aid of the execution
of the warrant” (Wilson v. Layne, 1999, p. 614).

R E F E R E N C E S

Abadinsky, H. (1995). Law and Justice: An Introduction to the American Legal System. Chicago:
Nelson-Hall.

Abney v. United States, 431 U.S. 651 (1977).

Balzar, J. (1985, April 7). Few rules to go by; Justice Bird’s recall becoming epic battle. Los Angeles
Times, p. 1.

Black’s Law Dictionary. (1999). (7th ed.). St. Paul, MN: West Group.

California Penal Code § 25 (2001)(b).

Cecil, J. and Stienstra, D. (1987). Deciding Cases Without Argument: An Examination of Four Courts
of Appeals. Federal Judicial Center, FJC–R–87–5.

Charles Wilson v. Harry Layne, 141 F.3d 111 (1999).

Chiang, H. (2001, May 15). Medicinal pot ruled illegal; Supreme Court says federal law allows no
exception for prescription marijuana. San Francisco Chronicle, p. A1.

Cox, R.A. (1997, July). How appeals work: The basics for non-lawyers. Available online at
www.appealslaw.com/haw.html.

Egelko, B. (2001, May 12). Hunters point case tests drug evictions. San Francisco Chronicle, p. A14.

Egelko, B. (2002, June 4). Man with sleepy lawyer can have a new trial. San Francisco Chronicle, p. A1.

Etzioni, A. (2001, April 6). Are liberal scholars acting irresponsibly on gun control? The Chronicle of
Higher Education (The Review), pp. B14–B15.

Finz, S. (2000, September 20). Evictions of seniors assailed in court. San Francisco Chronicle, p. A20.

Friedman, L.M. (1985). A History of American Law (2nd ed.). New York: Simon & Schuster.

Hanlon v. Berger, 525 U.S. 981(1998).

Hart, J.L. and G.M. Dudley. (2000, Summer). Available post-trial relief after a state criminal convic-
tion when newly discovered evidence establishes “actual innocence.” University of Arkansas
Little Rock Law Review, 22: 629–646.

Herrera v. Collins, 506 U.S. 390, 421 (1993).

Hoppin, J. (2000, November 3). Case of the sleeping lawyer splits two judges eyed for high court.
The Recorder, available online at www.law.com.

Hoppin, J. (2001, March 16). Victim’s partner files wrongful-death suit. The Legal Intelligencer, p. 4.

Hornblower, M. (1999, May 3). Here’s my marijuana card, officer. Time, p. 7.

HUD v. Rucker et al., No. 00-1770.

Jefferson, T. (1798). Draft Kentucky Resolutions, 1798. ME 17:380. Available online at etext.lib.
virginia.edu/jefferson/quotations/jeff1275.htm.

Johns, P. (1982). Comment: Interlocutory appeals in criminal trials: Appellate review of vindictive
prosecution claims. University of Cincinnati Law Review, 51: 373–385.

Leahy, Senator Patrick. (2000, February 1). Quoted in 146 Cong. Rec. S198 (daily ed.).

McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

Merriam-Webster’s Dictionary of Law. (1996).

Norgren, J. (1996). The Cherokee Cases: The Confrontation of Law and Politics. New York:
McGraw-Hill.

Nowell, P. (2000, November 3). Lawyer admits sabotaging appeal of death row client he didn’t like.
San Francisco Chronicle, p. A14.

Office of Legal Policy. (1987). Report to the Attorney General: Double jeopardy and government
appeals of acquittals. pp. 49–50. Washington, DC: U.S. Department of Justice.

O’Neill, A.W. (1998, September 11). When prisoners have a death wish. Los Angeles Times, p. A1.

People v. Aleman, Nos. 93 CR 28786, 93 CR 28787, 1994 WL 684499 (Ill. Cir. Ct. Oct. 12, 1994).

People v. Horn, (1984, 3d Dist) 158 Cal App 3d 1014, 205 Cal Rptr 119.

People v. Skinner (1985) 39 Cal 3d 765, 217 Cal Rptr 685, 704 P2d 752.

People v. Stress (1988, 4th Dist) 205 Cal App 3d 1259, 252 Cal Rptr 913.

Robbins, M.A. (2000, November 3). Dozing lawyer case may go to U.S. Supreme Court. Texas
Lawyer. Available online at www.law.com.

Rosenn, M. (1983, Spring). Symposium: State prisoner use of federal habeas corpus procedures: The
Great Writ—a reflection of societal change. Ohio State Law Journal, 44: 337–XXX.

Scheck, B., Neufeld, P., and Dwyer, J. (2000). Actual Innocence: Five Days to Execution and Other
Dispatches from the Wrongly Convicted. New York: Doubleday.

Sawyer v. Whitley, 112 S. Ct. 2514 (1992).

Smith, C. (2000). The capacity of courts as policy-making forums. In Hancock, B., and Sharp, B. (Eds.),
Public Policy, Crime, and Criminal Justice, (pp. 240–256). Upper Saddle River, NJ: Prentice Hall.

State v. Jones, 5 N. Car 257 (1809).

Strickland v. Washington, 466 U.S. 668 (1984).

Supreme Court of the U.S.—Rules. Available online at www.supremecourtus.gov/ctrules/ctrules.html.

Tennesse v. Garner, 471 U.S. 1 (1985).

Texas v. Johnson, 109 S. Ct. 2533, 2536 (1989).

Vogel, K., and Stumpf, B. (2000). Preserving the record for appeal: Top ten mistakes. Available
online at Findlaw.com.

Walker, S. (2001). Sense and Nonsense about Crime and Drugs: A Policy Guide (5th ed.). Belmont,
CA: Wadsworth/Thomson Learning.

Whitworth, D. (2001, July 4). Reagan-appointed judge says innocent are being executed. The Times.
Available online at www.thetimes.co.uk/.

Wilson v. Layne, No. 98-83, 526 U.S. 603 (1999).

Zamora, J., Podger, P., Chiang, H., and Squatriglia, C. (2001, March 27). Massie executed for 1979
S.F. murder. San Francisco Chronicle, p. A1.

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Step 16

Juvenile Courts

Phyllis B. Gerstenfeld

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❖

On June 8, 1964, Gerald Francis Gault and his friend, Ronald Lewis, spent the day
making prank phone calls. When one recipient of their calls, Mrs. Cook, com-
plained to the police, the county sheriff took Gault into custody. The next day he
was questioned before a judge. On June 15, a second hearing was held. Mrs. Cook
was not there, and no witnesses were sworn. No jury was seated; no lawyers were
present. No Fifth Amendment warnings were given to Gault before he was ques-
tioned. At the end of the hearing, Gerry Gault was to be incarcerated for nearly six
years. No appeal was permitted.

How could this be? The answer is that Gerry Gault was fifteen years old, and
these hearings occurred in Juvenile Court. Had Gault been tried as an adult, he
would have been entitled to many more procedural rights, and he would have faced
a maximum sentence of $50 or two months in jail. But as we will see in this chap-
ter, juvenile courts are quite different from ordinary courts.

BEFORE JUVENILE COURTS

Until the industrial era, relatively few children were processed by the courts.
Instead, fathers were given ultimate legal control and authority over their children.
This worked well when most people earned their living from the land: A father
could threaten to expel a disobedient child from the family farm, exposing the
child to poverty and starvation. Moreover, even young children spent most of their
waking hours working hard under their parents’ watchful eyes, and so had little
opportunity for mischief.

For those youths whom parents were unable to control, the rules were fairly
clear. In both English and American common law systems, children under the age of
seven could not be held criminally responsible for their acts because it was presumed

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that they were unable to form criminal intent. Children between the ages of seven and
fourteen were also presumed to be unable to form intent, but this presumption could
be overcome by evidence that the child knew what he or she was doing. If such evi-
dence existed, or if the child was over age fourteen, he or she was treated like an
adult. In the United States, some children as young as twelve have been subject to the
ultimate adult penalty: death (Streib, 1987).

As more people moved to cities, the family became a less effective method of
control. Furthermore, levels of urban poverty increased, leaving many children
destitute. The first institution for wayward and destitute youths, the Bridewell, was
established in London in 1555. The first youth correction institution in the United
States was the House of Refuge, built in New York City in 1825. No court hearing
was required to place a child in a House of Refuge, and children could remain there
until their eighteenth or twenty-first birthday. A child could be committed by a par-
ent or by a government agent, such as a constable. The idea behind these establish-
ments was that adult prisons, rather than reforming delinquent youth, would
merely make them worse.

In 1838, the mother of a minor named Mary Ann Crouse wished to commit
her daughter to the Philadelphia House of Refuge. Mary Ann’s father, who felt that
she should remain at home, disagreed and argued that committing her amounted to
punishing her without a trial. The Pennsylvania Supreme Court held in ex parte
Crouse that Mary Ann’s commitment was legal under the doctrine of parens
patriae (the state as parent). The court stated that when a parent is unwilling or
unable to control a child, the state has the power to step in and act in the child’s and
society’s best interests. Houses of Refuge, the court wrote, are meant not for pun-
ishment but for reformation; therefore, the formal due process protections of crim-
inal trials were unnecessary:

The infant has been snatched from a course which must have ended in confirmed
depravity . . . and not only is the restraint of her person lawful, but it would be an act of
extreme cruelty to release her from it. (Roush, 1996)

The doctrine of parens patriae became the basis of the first juvenile court. In
fact, although U.S. Supreme Court cases in the 1960s and 1970s made significant
changes in how juvenile courts operate, parens patriae remains the courts’ foundation.

THE EARLY JUVENILE COURTS

As immigration, urbanization, poverty, and crime continued to increase, so did the
pressure to do more to combat juvenile delinquency. Reformatories were over-
crowded and their conditions were often deplorable, and many children were sim-
ply confined in adult institutions. Moreover, the emerging sciences of criminology
and psychology argued that there were certain causes of crime; therefore, once the

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causes were discovered, offenders could be “cured” of their criminality. And so, at
the urging of several prominent reformers, the juvenile courts were born. The first
was the Cook County Juvenile Court, founded in Chicago in 1899. Within two
decades, all but two states had followed Illinois’s lead and established juvenile
courts of their own (Ainsworth, 1991).

The early juvenile courts had several common features. The most important
was that they operated under the parens patriae doctrine, and so were considered
civil rather than criminal. The hearings were informal, with the stated goals being
to discover the root of the child’s problems and to solve those problems. Juvenile
courts heard not only cases involving delinquency (in which the child was accused
of violating a criminal law), but also status offenses (in which the child was gener-
ally wayward or a runaway), and cases where the child was neglected, abused, or
destitute. No lawyers were involved and the hearings were nonadversarial. In fact,
as late as 1965, more than one quarter of juvenile court judges had no formal legal
training (Davis et al., 1997).

Because the purpose of juvenile courts (reformation) was different from crim-
inal courts (punishment), the juvenile court proceedings did not include all of the
due process trappings of criminal court. Not only were due process protections
deemed unnecessary, it was argued, but they would interfere with the court’s mission.

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A juvenile court in Denver, Colorado, in 1915 attended by the judge, court clerk, probation officer,
and several boys. The charges faced by the boys might have ranged from incorrigibility to truancy to
serious crimes, and they could expect sentences that reflected the rehabilitative ideals of the court,
ranging from probation to detention in a reformatory. Now, young people must commit actual
offenses (rather than so-called “status offenses”) before they may be held in detention, and lawmak-
ers are changing juvenile laws to allow certification of minors to adult courts in serious cases.
SOURCE: Courtesy of the Library of Congress.

Therefore, there were no juries, and the child need not be found guilty beyond a rea-
sonable doubt. As one of the creators of the juvenile court system wrote,

The problem for determination by the [juvenile court] judge is not, Has this boy or girl
committed a specific wrong, but What is he, how has he become what he is, and what can
be done in his interest and the interest of the state to save him from a downward career.
(Mack, 1909)

There were other differences as well. To protect children from the stigma that crim-
inal convictions bring, juvenile court proceedings were closed to the public,
records were kept confidential, and an entirely different terminology was con-
structed (see Box 16.1 for some important differences between the terminology
used in adult and juvenile courts). Even the look of the courts was different: Rather
than an imposing traditional courtroom, hearings were to take place in less formal
settings with a table and chairs. Ideally, the judge, child, parents, and probation
officer could sit informally around this table and determine what would be best for
the child.

Juvenile court judges were also given a great deal of discretion in determin-
ing what was to happen to children who appeared before the court. Many more
kinds of placements for minors were available than for adults. In addition, those

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BOX 16.1

Adult versus Juvenile Court Terminology

Adult Term Juvenile Equivalent

Information, indictment Petition

Trial Adjudication hearing

Name of case: State v. Doe or United States v. Doe Name of case: In re Doe

Defendant Minor

Conviction Delinquency adjudication

Guilty Delinquent

Sentencing hearing Disposition hearing

Sentence Disposition

Jail Juvenile Hall

Prison Reformatory, reform school,
youth authority, industrial school,
and so on

children who were confined to institutions such as reformatories were not given
determinate sentences as are adults sent to prison. Instead, they were often ordered
to remain incarcerated until they reached the age of majority (usually age eighteen
or twenty-one), or until they were “cured.” Thus did Gerry Gault face nearly six
years (that is, until the age of twenty-one) in detention for a minor infraction.

THE DUE PROCESS REVOLUTION

As originally conceived, the juvenile courts gave children a tradeoff: They were
expected to give up their due process rights, and in return, their best interests were
to be secured and they were to be given individualized treatment rather than pun-
ishment. The juvenile courts were to operate more like social service agencies than
like places of justice.

Unfortunately, the promise of the juvenile courts was almost immediately
broken. Understaffed courts were overburdened by heavy caseloads. Much of the
staff was underpaid (or not paid at all—many were volunteers) and undertrained;
many juvenile court judges were not formally trained in law at all. This ran con-
trary to the original intent of the system.

The courts were not the only problem. The hoped-for variety of dispositional
alternatives did not materialize. In 1920, for example, only 55 percent of juvenile
court systems provided any probation services (Ryerson, 1978). Conditions in
many existing institutions remained appalling because of overcrowding and abuse.
Again, this violated the original premise of the system. The continuing problems of
the juvenile justice system, together with a Supreme Court inclined to promote
constitutional rights, engendered a series of landmark cases, the most important of
which was Gerry Gault’s.

The first major U.S. Supreme Court case on juvenile justice was Kent v.
United States, in 1966. Sixteen-year-old Morris Kent was transferred from juvenile
to adult court to stand trial for rape. There was no transfer hearing, nor did the
judge state the basis for his decision; he simply decided to transfer Kent on the
basis (presumably) of the contents of Kent’s probation files. The Supreme Court
held that Kent’s due process rights had been violated.

The direct impact of Kent was unclear. The case arose in Washington, DC,
and the Supreme Court may have been acting in its role as overseer of the District
of Columbia court system rather than as the nation’s highest court. But Kent was
significant in that it signaled the Court’s dissatisfaction with the nation’s juvenile
justice system:

There is much evidence that some juvenile courts . . . lack the personnel, facilities and
techniques to perform adequately as representatives of the State in a parens patriae capacity,
at least with respect to children charged with law violation. There is evidence, in fact, that
there may be grounds for concern that the child receives the worst of both worlds: that he

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gets neither the protections accorded to adults nor the solicitous care and regenerative
treatment postulated for children.

Just a year later, the Court’s skepticism reached a peak when it heard Gerry
Gault’s case (In re Gault, 1967). Although the Court questioned the concept of
parens patriae, it did not discard it entirely. However, the Court held that whenever
juveniles face the possibility of confinement, they are entitled to certain basic due
process rights (see Box 16.2 for a list of rights accorded to juveniles, and a list of
those that have not yet been extended to juveniles). “The condition of being a boy,”
Justice Fortas wrote for the majority, “does not justify a kangaroo court.” Having
been locked up for three years, Gerry Gault was finally free. He eventually
became—what else!—a lawyer.

Some Justices expressed concern that affording juveniles due process rights
would further hamper the success of the juvenile courts, and would effectively erase
the distinction between the adult and juvenile systems (see Box 16.3 for some
important excerpts from the Gault case). Nevertheless, in succeeding cases, the
Supreme Court continued to grant additional rights. In In re Winship (1970), the
Court held that the standard of proof beyond a reasonable doubt must be extended to
juvenile as well as adult proceedings. In Breed v. Jones (1975), the Court held that
the protection against double jeopardy applied in juvenile cases as well.

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BOX 16.2

Due Process Rights and Juvenile Courts

Juveniles are entitled to the following:

Transfer hearing before trial in adult court Kent v. United States, 1966

Notice of charges
Assistance of counsel
Confront witnesses and cross-examine them In re Gault, 1967
Right against self-incrimination
Transcript of proceedings
Appellate review

Proof beyond a reasonable doubt In re Winship, 1970

Double jeopardy protection Breed v. Jones, 1975

Juveniles are not entitled to the following:

Jury trial McKeiver v. Pennsylvania, 1971

Mandatory presence of parents during interrogation Fare v. Michael C., 1979

Right against preventative detention Schall v. Martin, 1984

}

But the Supreme Court would not grant juveniles all the rights that adults are
afforded. In McKeiver v. Pennsylvania (1971), the Court declined to require jury
trials in juvenile courts. This was not, as many lay people suppose, because requir-
ing a jury of peers would mean that juveniles would have teenaged jurors; the
“peers” language of the Sixth Amendment is not so strict. Instead, the Court
expressed its fear that imposing a jury on the process would eliminate the last real
boundary between the juvenile and adult courts. The Court was still extremely
skeptical of the juvenile court system. Justice Blackmun wrote, “We must recog-
nize . . . that the fond and idealistic hopes of the juvenile court proponents and
early reformers of three generations ago have not been realized.” McKeiver v.
Pennsylvania, (1971; p. 543-4). However, even though the Court found the juvenile

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BOX 16.3

Important Excerpts from In re Gault (1967)

Justice Abe Fortas, writing for the majority:
[Recent studies] suggest that the appearance as well as the actuality of fairness,
impartiality and orderliness—in short, the essentials of due process, may be a more
impressive and therapeutic attitude so long as the juvenile is concerned.

It is of no constitutional consequence—and limited practical meaning—that
the institution to which he is committed is called an Industrial School. The fact of
the matter is, that however euphemistic the title, a “receiving home” or an “indus-
trial school” for juveniles is an institution of confinement in which the child is
incarcerated for a greater or lesser time. . . . Instead of mother and father and sisters
and brothers and friends and classmates, his world is peopled by guards, custodi-
ans, state employees, and “delinquents” confined with him for anything from way-
wardness to rape and homicide.

Under our Constitution, the condition of being a boy does not justify a kanga-
roo court.

Justice Hugo Black, concurring:
The juvenile court planners envisaged a system that would practically immunize
juveniles from “punishment” for “crimes” in an effort to save them from youthful
indiscretions and stigmas due to criminal charges or convictions. I agree with the
Court, however, that this exalted ideal has failed of achievement since the beginning
of the system.

Justice Potter Stewart, dissenting:
The inflexible restrictions that the Constitution so wisely made applicable to adver-
sary criminal trials have no inevitable place in the proceedings of those social serv-
ice agencies known as juvenile or family courts. And to impose the Court’s long list
of requirements upon juvenile proceedings in every area of the country is to invite a
long step backwards into the nineteenth century.

court system to be gravely ill, it was still unwilling to bury it. In the Court’s eyes,
juvenile courts still held promise. Jury trials, Justice Blackmun wrote, would not
cure the system, but would only kill it. For this reason alone, the Court declined to
require jury trials in juvenile courts.

In McKeiver the Court didn’t require jury trials, but it didn’t expressly prohibit
them either. In fact, several states, such as Texas, have passed laws permitting or
requiring jury trials in juvenile court cases. Furthermore, some areas have recently
begun experimenting with “teen courts”; we’ll look at those later in this step.

JUVENILE COURT JURISDICTION

In many jurisdictions, the juvenile court is a subsidiary of the trial court of general
jurisdiction (that is, the court in which adults are tried), or of other specialty courts
such as probate courts (Rubin, 1985). In other places, the juvenile court is a sepa-
rate entity altogether. Although they are most commonly called juvenile courts,
they have other titles as well, such as family courts.

All juvenile courts have a judge of some kind. Today, most people presiding
over juvenile court hearings have law degrees, but they may not technically be
“judges.” To accommodate spiraling caseloads, judges in many states are empow-
ered to appoint referees or commissioners (the terms are virtually interchange-
able). Referees have law degrees and act much like judges; however, most of their
decisions are reviewable by their supervising judge. The office of referee brings
less prestige than that of judge, and usually less pay.

Juvenile courts are courts of limited jurisdiction, in that they have the power
to hear only certain types of cases. Usually, their jurisdiction is defined by the age
and behavior of the offender. That is, they can hear cases involving people of cer-
tain ages who are suspected of performing certain (mostly criminal) acts. Depend-
ing on the location, they may hear cases involving abused and neglected children
as well, and sometimes even divorce cases. The ages over which they have jurisdic-
tion vary, but in most states the maximum age is seventeen; anyone who commits a
crime after his or her eighteenth birthday becomes subject to the adult criminal
courts. Some states also have minimum ages for juvenile court jurisdiction, and
children below the minimum may not be prosecuted at all (although they may
come under the auspices of Child Protective Services or similar agencies if the
crime is serious or the child seems troubled).

In all states, youths may be tried in adult instead of juvenile courts under some
circumstances: by statutory exclusion, judicial waiver, or concurrent jurisdiction.

Statutory exclusion means the legislature has passed laws that say certain
juveniles who commit certain crimes will be tried as adults. These laws usually
concern older offenders and serious or violent crimes. In recent years, states have
been increasing the situations to which statutory exclusion applies by widening the

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498 Juvenile Courts

number of crimes and lowering the minimum age. For example, California
changed its laws in 1999 to require that children be tried as adults if they are four-
teen or older and are accused of certain murders or sex offenses. Some states statu-
torily exclude even more minors from juvenile status by setting the maximum age
of juvenile court jurisdiction at age fifteen or sixteen instead of seventeen. In 1996,
nearly a quarter million sixteen- and seventeen-year-olds were tried as adults in
these states, and the number of juveniles who are tried as adults has been growing
(Torbet and Szymanski, 1998).

Judicial waiver means that under certain circumstances, the juvenile court
judge can choose to transfer the case to adult court. Usually, there are state statutes
specifying which cases can be judicially waived and what factors the judge should
consider. Because of the Supreme Court’s ruling in Kent v. United States (1966),
the judge must hold a waiver hearing in which certain due process protections are
given to the minor. The Supreme Court has also held that due to double jeopardy
protections, any waiver hearing must occur before a juvenile adjudication hearing.
Once the adjudication hearing has been held, the minor can no longer be tried as an
adult for that crime (Breed v. Jones, 1975). Today, all but four states allow judicial
waiver (Torbet and Szymanski, 1998).

Finally, fifteen jurisdictions have concurrent jurisdiction (Torbet and Szy-
manski, 1998). This means that both the juvenile and adult courts have jurisdiction
over certain cases. The prosecutor can decide which court will hear the case.
Unlike in cases of judicial waiver, no hearing is required, and the decision is within
the prosecutor’s discretion. Prosecutors are usually elected officials, and so their
decisions in this regard may be swayed by public opinion. In Palm Beach County,
Florida, for example, thirteen-year-old Nathaniel Brazill, an honor student with no
delinquency record, was charged as an adult with first-degree murder for shooting
his English teacher to death (Bragg, 2000).

In recent years, forty-four states have made it easier for children to be tried as
adults by widening one or more of the transfer provisions. Most often, states did
this by expanding the list of crimes eligible for statutory exclusion (Torbet and
Szymanski, 1998). These changes were most likely a response to an increase in the
juvenile crime rate in the 1980s and early 1990s, as well as several well-publicized
cases of violent murders committed by teenagers. Ironically, however, by the time
most of these laws were changed (1992 through 1997), the juvenile crime rate was
decreasing steadily to historically low levels.

THE OPERATION OF JUVENILE COURTS

Most of the American court system can trace its roots directly back to the English
common law system, and, as a result, courts tend to be somewhat similar from state to
state (see Step 4 for more information on the history and development of adult courts).

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The Operation of Juvenile Courts 499

As we’ve seen, however, juvenile courts’ roots instead lie more in social services.
There is, therefore, much more variability in juvenile courts between jurisdictions.

How does a case proceed through the juvenile court system? Again, this
varies from place to place, but Figure 16.1 illustrates a typical example. To begin
with, a case has to be referred to the court. This referral can come from a number of
different sources: schools, parents, social service agencies, victims, and so on.
However, by far the most common referral source is law enforcement. In 1997, for
example, 84 percent of delinquency cases came to the juvenile courts from law
enforcement agencies (Puzzanchera et al., 2000).

Once a juvenile is placed under arrest, a law enforcement agency has several
options. First, it can refer the child to juvenile court. In 1997, this happened in 67
percent of juvenile arrests, an increase in percentage of previous years (OJJDP,
2000). Second, it can send the case to social services or other agencies (26 percent
of arrests in 1997). Finally, in some instances the case can be sent directly to adult
court (7 percent of arrests in 1997).

When a case is sent to juvenile court, it usually goes to an intake officer, who
often is a juvenile probation officer. In some states, it may go to a prosecutor
instead. This person may decide to dismiss the case if it doesn’t seem worth prose-
cuting. For example, in Blythe, California, prosecutors chose not to pursue a case
against two girls, ages five and six, who suffocated a three-year-old (Gold, 2000).
They declined to prosecute because they presumed that children so young were
unable to truly understand what they had done. Or the intake officer may handle the
case informally, such as through a referral to a social service agency or informal
probation. Another option is diversion: Many jurisdictions have diversion pro-
grams for specific juveniles, such as first-time offenders or those with substance
abuse problems. The idea behind diversion programs is to solve the child’s prob-

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500 Juvenile Courts

Diversion

Intake

Dismissal
or informal
resolution

Law enforcement,
parents, school
authorities, etc.

Disposition
(probation, youth
authority, etc.)

Waiver to
adult court

Juvenile Court

Nonadjudicated

FIGURE 16.1 Typical juvenile justice process

lems without recourse to the more formal proceedings of juvenile court. If the
offense and the age of the offender place the case under concurrent jurisdiction, a
prosecutor may decide at this point to file the case in adult court. Finally, the intake
officer may choose to refer the case to the juvenile court for formal processing, by
filing a petition. The petition acts much like an indictment or information in an
adult criminal case. At one time, more cases were handled informally than for-
mally, but that changed in 1993. In 1997, 57 percent of intake cases were processed
formally. Since then, the proportion of cases handled formally has been increasing
steadily (Puzzanchera et al., 2000).

Once a petition is filed, the case is in the hands of the juvenile court judge (or
referee). If judicial waiver is an option, a waiver hearing will be held. Relatively
few cases at this point end up being transferred to adult court. In 1997, for example,
there were 8,400 waivers from juvenile court, which was about 0.5 percent of the
nearly 1.8 million cases nationwide (Puzzanchera et al., 2000).

If the case is not waived, an adjudication hearing will be held. As we’ve
already learned, this is the juvenile equivalent of a trial. Today, this hearing
includes many trappings of a criminal case, such as lawyers, transcripts, and sworn
witnesses. Like adults, juveniles have the right a court-appointed attorney if they
cannot afford one of their own, and the amount of assistance these lawyers provide
can vary a great deal. In many jurisdictions, public defenders have enormous case-
loads. Knowing that juvenile offenses often bring less harsh consequences than
adult offenses, some public defenders may limit the time they spend with their
youthful clients in order to have more time for the adults. In fact, especially for rel-
atively minor crimes, the public defender may only meet his or her client for the
first time a few minutes before the hearing begins. Furthermore, despite legal
scholars’ urging that children not be permitted to waive their right to counsel, chil-
dren are allowed to do so, and often do (probably because it is more expedient and
less expensive for the system).

Even when a juvenile is represented by counsel who has time to devote to the
case, the attorney’s role is unclear. Suppose a lawyer knows she can effectively
defend her minor client in such a way that the minor will not be adjudicated delin-
quent. But also suppose that the lawyer believes that her client is troubled, and that it
would be in his best interests to be adjudicated delinquent and receive treatment
from the system. What is her legal and ethical duty? The answer is not entirely clear.

Depending on the jurisdiction, the case may be prosecuted by either a prose-
cutor or by a probation officer. In either case, a probation report on the child should
be available to the judge. Thus, the decision in the case may depend not only on the
evidence presented in the courtroom, but also on the child’s history and present
family circumstances. Since the 1970 In re Winship decision, juveniles have had
the right to be found guilty beyond a reasonable doubt.

In actuality, especially in urban areas, juvenile court hearings may be extremely
brief. Ayers (1997) reports that in Cook County Juvenile Court, the nation’s original

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The Operation of Juvenile Courts 501

juvenile court, the average juvenile court hearing lasts twelve minutes. A typical
judge there has 1,500 to 2,000 cases pending on his or her docket on any particular
day. Clearly, the kind of careful, individualized treatment envisioned by the court’s
creators is impossible under these circumstances.

In 1997, juveniles were adjudicated delinquent in about 58 percent of cases
(OJJDP, 2000). In the remainder of cases, the case was dismissed for lack of evi-
dence, the juvenile was placed on probation pursuant to a plea bargain, other sanc-
tions such as restitution or diversion were imposed, or the juvenile was placed in
the care of a social service agency.

When a juvenile is adjudicated delinquent, the judge must choose a disposi-
tion, which is the equivalent of an adult’s sentence. By far the most common dispo-
sition (54 percent in 1997) is probation (OJJDP, 2000). Juveniles may also be given
other sanctions, such as restitution, or they may be placed in some confined setting.

As we learned, the architects of the juvenile court system imagined that there
would be many different dispositional alternatives available, so that each child’s
individualized needs could be met. The degree to which this dream has been real-
ized varies, but there are usually more options for children than for adults. Some
alternatives include juvenile halls (which are essentially jails for youths), boot
camps, wilderness programs, ranches, group homes, foster homes, residential
treatment facilities, outpatient treatment programs, and youth correctional facili-
ties. The availability of these resources varies by jurisdiction, with urban areas
generally having more available alternatives.

Although a recommendation for placement is usually made by a probation
officer, juvenile court judges have a great deal of discretion in these matters. Their
decisions, as commentators have noted, may be affected by many factors:

A judge’s personal values and philosophy strongly affect his [sic] dispositions. Judges
manipulate dispositions, and also are manipulated into particular dispositions by those who
participate in hearings and by external community pressures. Judges are seen as independent
decision makers, but their dispositions are made within the context of a system that may
provide few options. (Rubin, 1985)

Therefore, which judge happens to hear a case may affect the case outcome (Pod-
kopacz and Feld, 1996). Unfortunately, so may factors such as the offender’s race
(Bishop and Frazier, 1996).

The judge may have discretion not only over the kind of disposition, but also
the length. As we’ve discussed already, juvenile dispositions were originally meant
to be indeterminate. This made sense, if the purpose of the system was treatment
rather than rehabilitation. After all, if you were seriously ill, your doctor would not
admit you for a hospital stay of three days: He or she would keep you in the hospi-
tal until (and only until) you were cured! More recently, however, as the system has
turned toward more punitive goals, many jurisdictions have required determinate
sentences instead. Although juvenile courts’ authority rarely extends past a per-

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502 Juvenile Courts

son’s eighteenth birthday, juveniles may be confined beyond that age. California is
the most extreme example of this: People can remain subject to the California
Youth Authority until their twenty-fifth birthday.

As you may recall, early reformers were appalled at the conditions within the
Houses of Refuge. Unfortunately, problems persist in many juvenile facilities
today. The most disturbing of these are overcrowding, violence, and lack of treat-
ment programs. For an extensive discussion of these problems, see the Internet
resources listed in Box 16.4 and on the text Web site under “juvenile courts.”

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The Challenges Today 503

BOX 16.4

Useful Internet Sites on Juvenile Courts

Below are a few Internet resources for juvenile courts. You may find others on the text Web site
under “juvenile courts.”

Office of Juvenile Justice and Delinquency Prevention
http://ojjdp.ncjrs.org/

Justice Information Center
http://www.ncjrs.org/

National Center for Juvenile Justice
http://www.ncjj.org/

Center on Juvenile and Community Justice
http://www.cjcj.org/

THE CHALLENGES TODAY

In 1997, 2.8 million people under the age of 18 were arrested in the United States,
and juvenile courts handled nearly 1.8 million cases. This was a 48 percent
increase since 1988 and a 400 percent increase since 1960 (Stahl, 2000; Puz-
zanchera et al., 2000). As a result, juvenile cases are facing increasing delays in
processing. The median time for case processing increased 26 percent between
1985 and 1994. Although professional standards recommend completing a juve-
nile case within 90 days, in the more populous jurisdictions, nearly half the cases
in 1994 exceeded this limit (Butts, 1997).

If the juvenile court system was already overburdened in the early 1900s,
what is the case today? Are juvenile courts giving youths either justice or help?
Short of spending millions and millions more dollars, what is to be done?

One solution to juvenile court overcrowding is to transfer more youths to
adult courts. Many states have done just that in recent years. As discussed above, in
the last decade nearly every state has increased the circumstances under which
juveniles can be transferred to criminal court, and the number of cases that have
been transferred has increased as well (Snyder, Sickmund, and Poe-Yamagata,
2000). Of course, this doesn’t really solve the overcrowding problem: It merely
shifts the problem to the adult courts, which are already overcrowded themselves.

Furthermore, there are several fundamental arguments against treating juve-
niles as adults. First, many assert that it is inappropriate to treat children as adults
when children are incapable of an adult’s comprehension of the consequences of
their acts and are unable to make adult-like decisions. This was the basis of the
common law infancy defense (see Step 2 for more information on infancy and
other defenses). Second, treating children as adults often means housing them with
adult prisoners. This frequently leads to victimization of the children. Finally, it is
argued, children are still malleable. Rather than lock them up in prisons, where
they are only likely to become more criminal, why not try to reform them?

Besides overcrowding, juvenile courts are facing other significant challenges
as well. One is the overrepresentation of minorities, and especially African Ameri-
cans, in the juvenile justice system (Bishop and Frazier, 1996). At every stage,
from arrest through disposition, black youths are overrepresented, and this cannot
be entirely accounted for by differential offense rates. In 1999, the United States
Office of Juvenile Justice and Delinquency Prevention concluded that, “There
is substantial evidence of widespread disparity in juvenile case processing . . .
[T]here is substantial evidence that minority youth are often treated differently
from majority youth within the juvenile justice system” (Snyder and Sickmund,
1999, p. 193). Clearly, this is cause for great concern.

Another problem faced by the courts is how to deal with a wide variety of
offenders. In 1997, 78 percent of juvenile arrests were for nonviolent offenses; 54
percent of males and 73 percent of females who enter the juvenile justice system
never return a second time (Snyder and Sickmund, 1999). The most violent
crimes—homicide, rape, robbery, and aggravated assault—comprised only 6 per-
cent of arrests (Stahl, 2000). Can the same system effectively deal with this small
minority while also dealing with the large majority of youths who are nonviolent
and nonrepeat offenders?

Yet another issue confronting the juvenile courts today is a fundamental
reassessment of their role. As we’ve discussed, the initial purpose of the courts was
rehabilitative. In the 1990s, however, the focus became increasingly punitive,
largely in response to inaccurate public perceptions that the juvenile crime rate was
spiraling out of control (Feld, 1993; Lederman, 1999). But is this harsh approach
appropriate, especially considering that most juveniles are nonviolent and will grow
out of their criminal behavior (Klein, 1998)? And if the goal of the juvenile courts is
to be punishment, why bother having them at all? They would be merely duplicating
(poorly, some would argue) the purpose of the adult courts (Feld, 1993).

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But if the punitive ideal is ultimately rejected and the courts return to the ther-
apeutic ideal, substantial difficulties remain. Individualized treatment demands a
great deal of discretion on the part of the courts; how can this be balanced with the
due process protections required by Gault? Can justice and social work be dis-
pensed by the same entity, especially if that entity is overloaded with cases? Some
commentators have argued that this is simply impossible (see, e.g., Feld, 1993).

All of these challenges are so significant that it is unclear whether the juve-
nile courts will survive far into their second century. One commentator referred to
it as a “bankrupt legal institution” (Melton, 1989). At the very least, it seems
inevitable that they will be substantially reorganized, but the question remains of
how to do this.

ANSWERING THE CHALLENGE

One model that has been advocated is to simply abolish juvenile courts. As one crim-
inologist (Feld, 1999) noted, “The fundamental shortcoming of the traditional juve-
nile court is not a failure of implementation but a failure of conception” (p. 358).
Instead of a separate juvenile system, youths can be tried as adults and legislatures
can create additional safeguards to protect them, such as providing for expungement
of their records after they have served their sentences. “Full parity in criminal courts,
coupled with alternative legislative safeguards for children, can provide the same or
greater protections than does the current juvenile court” (Feld, 1999, p. 366).

A less drastic approach is to restructure the operation of juvenile courts. One
recommendation is to extend juvenile court authority over a broad variety of youth
and family concerns, including abuse and neglect (Lewis, 1999). The juvenile
court was originally conceived to operate this way, as a large number of delinquent
children are abuse or neglect victims. Increasing jurisdiction this way could
improve prevention and increase treatment options.

A third recommendation is to increase the courts’ use of early intervention
programs (Lederman, 1999). Ideally, of course, intervention should occur before a
child ever breaks the law. Improvement of services to at-risk youth could accom-
plish this. But once the law has been violated, the juvenile courts can still act to
prevent future and more serious offenses.

One attempt at this has been the drug court movement. Most drug courts
have been aimed at adults, but a significant minority have been created expressly
for juvenile offenders. As with adults, many juvenile crimes can be traced to sub-
stance abuse. Drug courts employ intensive supervision, treatment programs, drug
testing, and aftercare programs (Roberts, Brophy, and Cooper, 1997). Offenders
who succeed at eliminating substance abuse and illegal behavior can avoid punitive
sanctions. Although these programs can be expensive in the short run, the hope is
that they will reduce recidivism in the long run. They also have the advantage of
closely meeting the juvenile courts’ rehabilitative ideals.

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Answering the Challenge 505

Another recent innovation is teen courts (sometimes called youth or peer
courts). These are aimed at first-time offenders, and usually for relatively minor
offenses. In a teen court, volunteer youths serve as attorneys (usually mentored by
real lawyers), jurors, clerks, bailiffs, and sometimes judges. The offenders must
admit their guilt, and the jury determines an appropriate sentence. Typical disposi-
tions include community service, apology letters, teen court jury duty, substance
abuse classes, and restitution (Butts, Hoffman, and Buck, 1999). Proponents of
these courts believe that they will educate youths about the justice system and hold
them accountable for their actions. It is also hoped that teens will be particularly
responsive to the sanctions of their peers, as opposed to those of adults. As of 1999,
there were more than 650 teen courts in the United States, with plans for many
more in the works (OJJDP, 2000).

Because both drug courts and teen courts are new, it remains to be seen how
effective they are in achieving their goals and also what other innovations for the
juvenile courts are in store.

THE FUTURE

What kind of courts will the Gerry Gaults and other youths of the future be facing?
Will the juvenile justice system ever achieve what it promised to a century ago? If
so, how? Or have the juvenile courts been merely a lengthy and unsuccessful
experiment that should now be abandoned?

Nobody without a crystal ball can answer these questions today. One thing
can be predicted with great certainty, however: Juvenile courts and the treatment of
juvenile offenders will continue to be issues of great interest and importance to
policymakers, researchers, and the public at large.

D I S C U S S I O N Q U E S T I O N S

1. What is the relationship, historically and today, between the economy and delinquency?

2. The doctrine of parens patriae allows the government to step in and take over the parenting role,
even against the wishes of a child’s actual parent. When should the government be allowed to
contravene parental power when it comes to raising a child?

3. What are the advantages and disadvantages of each of the distinctions between juvenile and adult
courts?

4. What kind of educational and professional background should a juvenile court judge have?

5. Discuss the pros and cons of granting juvenile court judges broad discretion.

6. While the entire U.S. Supreme Court appeared highly skeptical of the juvenile justice system, the
justices did not agree on how to “fix” it. Do you agree with the majority that the problems would
be remedied through the imposition of due process protections?

7. Discuss whether juveniles should be granted the right to a jury trial. In some states, (e.g., Califor-
nia) juvenile court adjudications can count as the first two of a person’s “three strikes.” This

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506 Juvenile Courts

means the person need commit only one felony as an adult to receive life imprisonment. Should
this affect juvenile’s access to jury trials?

8. What factors should be considered in decided whether to try a juvenile as an adult? Who should
make this decision: legislatures, prosecutors, or judges?

9. Should minors be permitted to waive their rights to counsel?

10. Given that severe budgetary restraints usually exist, how can we assure that juveniles receive
effective assistance of counsel?

11. What can be done to address the overrepresentation of minority youths in the juvenile justice
system?

12. What do you see as the role of juvenile courts today? How does that differ from the role of adult
criminal courts?

13. Should juvenile courts be considered a failed experiment and abolished? If not, how should they
be restructured?

14. How would you measure the effectiveness of a teen court program? Would you support such a
program where you live?

15. What do you think the juvenile courts will be like 25 years from now? 100 years?

R E F E R E N C E S

Ainsworth, J.E. (1991). Re-imagining childhood and reconstructing the legal order: The case for
abolishing the juvenile court. North Carolina Law Review, 69: 1083–1100.

Ayers, W. (1997). A Kind and Just Parent: The Children of Juvenile Court. Boston: Beacon.

Bishop, D.M., and Frazier, C.E. (1996). Race effects in juvenile justice decision-making: Findings of
a statewide analysis. Journal of Criminal Law and Criminology, 86: 392–413.

Bragg, R. (2000, June 22). When a child is accused of killing the law stays firm. The New York Times,
p. A18.

Breed v. Jones, 421 U.S. 519 (1975).

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References 507

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508 Juvenile Courts

A

ssignment

8

B

Answer Sheet

Please post the completed answer sheet as an attachment through the Assignments section.

YOUR NAM

:
Marcela Montoya

Your Answer (Letter Only)

Question Number

Your Answer (Letter Only)

Question Number			Your Answer (Letter Only)	Question Number
1							C	3 1	B	6 1	A
2	32				E	62
3	33	63
4	C	34	64
5	35	65
6	36
7	37
8	38
9	39
10	40
11	41
12	42
13	43
14	44
15	45
16	46
17	47
18	48
19	49
20	50
21	51
22	52
23	53
24	54
25	55
26	56
27	57
28	58
29	59
30	60	D

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