Examining The Sentencing And Punishment Of Crime Criminology Essay

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A sentence is a formal judgment pronouncing a specific punishment to be imposed for the conviction of a crime. It may involve the payment of a fine, community service, incarceration, or in capital offenses, the death penalty (Barlow, 2000). It also may consist of a term of probation or parole (although parole has been abolished in many states). Sentences may be meted out directly following the entry of a verdict or at a sentencing hearing scheduled for a later date. In the interim, prosecutors prepare a sentencing report which advises the court of the defendant's prior criminal record, aggravating or mitigating circumstances, and other information about the defendant that may assist the court in deciding an appropriate punishment. There have been concerted efforts over the years to standardize the approach toward sentencing, particularly in felony offenses, and to diminish judicial discretion in sentencing. These efforts reflect a recurring perception by lawmakers and the public at large that arbitrary or discriminatory practices may interfere with fair and just sentencing in certain cases or for certain crimes. This paper will discuss sentencing, punishment as well as mens rea and actus reus.

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Judges, not juries, determine punishments for a crime (in capital punishment cases, the jury usually decides whether to recommend death or life in prison). The Eighth Amendment to the U. S. Constitution made applicable to the states by the Fourteenth Amendment provides that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. In addition to the sentencing prohibitions contained in the Constitution, Title 18 of the United States Code, Part II (criminal procedure), Chapters 227 (sentences), 228 (death sentence), and 232 (miscellaneous sentencing provisions) also govern sentencing in federal courts (McAnany, August 2010).

Most crimes are specifically enumerated in constitutions or statutes, and the provision that identifies the specific crime will also identify the appropriate punishment. For example, a statute may read, Violation of this statute constitutes a misdemeanor, punishable by a fine not to exceed $500 or imprisonment not to exceed thirty days, or both. Given this range of potential punishment, a judge will then consider certain aggravating or mitigating circumstances to determine where along the prescribed spectrum a particular criminal's punishment should fall. Common factors considered by judges include: whether the offender is a first-time or a repeat offender, whether the offender was an accessory (helping the main offender) or the main offender, whether the offender committed the crime under great personal stress or duress, whether anyone was hurt, and whether the crime was committed in a manner that was unlikely to result in anyone being hurt, whether the offender was particularly cruel to a victim, or particularly destructive, vindictive, etc., and (sometimes) whether the offender is genuinely contrite or remorseful (Stuntz, 2004).

Under Federal Rule of Criminal Procedure 32(a), before imposing a sentence, the court must afford counsel an opportunity to speak on behalf of the defendant. The court will address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment. The attorney for the government will have an equivalent opportunity to speak to the court. Similar provisions are contained in most state procedural statutes and rules. In many state courts, a victim or the survivors of a victim may also have the opportunity to address the court and recommend leniency or strictness for the sentence. Under the Violent Crime Control and Law Enforcement Act of 1994, the Three Strikes statute (18 U.S.C. 3559(c)) provides for mandatory life imprisonment if a convicted felon: has been convicted in federal court of a serious violent felony and has two or more previous convictions in federal or state courts, at least one of which is a serious violent felony. The other offense may be a serious drug offense. The statute goes on to define a serious violent felony as including murder, manslaughter, sex offenses, kidnapping, robbery, and any offense punishable by ten years or more which includes an element of the use of force or involves a significant risk of force (Schiraldi, Colburn, & Lotke, 2004).

The State of Washington was the first to enact a Three Strikes law in 1993. Since then, at least half of all states, in addition to the federal government, have enacted three strikes laws. The primary focus of these laws is the containment of recidivism (repeat offenses by a small number of criminals). California's law is considered the most far-reaching and most often used among the states. In addition to three strikes laws, other state and all federal criminal statutes include mandatory sentences that require judges to impose identical sentences on all persons convicted of the same offense. Mandatory sentences are a direct result of state legislatures' or Congress' response to the public perception of judicial leniency or inconsistency in sentencing practices (Schiraldi, Colburn, & Lotke, 2004).

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Most crimes do not carry mandatory sentences. When sentencing is not mandatory, the judge may fit the punishment to the offender instead of fitting the punishment to the crime. Current debates about criminal justice help to fuel the different approaches to sentencing and punishment. These approaches include the severity of punishment meted, and the specific objective sought by the punishment: retribution, some argue that the primary purpose of punishment should be to punish an offender for the wrong committed as opposed to society's vengeance against a criminal. The sentiment is to punish criminals and promote public safety by keeping them off the streets. Some believe that the primary purpose of punishment should be to rehabilitate criminals to change their criminal ways and to encourage the adoption of a more socially acceptable lifestyle. Most experts agree that this theory is commendable but not practical in prisons. Many criminals boast of coming out better criminals than they were when they entered prison. Others argue that the perceived punishment for a crime should be so undesirable as to result in deterring someone from actually committing a crime for fear of the likely punishment. These theories are good, but many crimes are committed while the person is under the influence of alcohol and other drugs and the above mentioned approaches wouldn’t help. Fear of punishment is usually not a deterrent under these circumstances (Hugo, 2010).

Punishment is the imposition of something negative or unpleasant on a person in response to behavior deemed wrong by an individual or group. For a number of years, South Carolina operated under a fairly typical death penalty statute which provided for the ultimate penalty for a number of crimes including, but not limited to, murder, rape and kidnapping. The statute predicated the imposition of the death penalty in those situations where the jury made a finding of guilt without an affirmative recommendation of mercy (Hugo, 2010).

Beginning in 1962, there was a moratorium on executions nationally even though the death penalty statutes remained in effect. In 1972, the U.S. Supreme Court in the case of Furman v. Georgia held that the imposition of the death penalty was unconstitutional in those situations where either the court or the jury had practically unfettered discretion to impose the ultimate penalty.   The Furman case, in effect, declared most death penalty statutes, including that of South Carolina, in effect to be unconstitutional (McAnany, August 2010).

South Carolina joined thirty-four other states in changing their death penalty statutes to provide that under given circumstances the death penalty would be imposed mandatorily. Several people in South Carolina were sentenced under this statute, however, the judgment was not executed upon any prisoner and the U.S. Supreme Court ruled, in 1976, that while the death penalty was not per se unconstitutional, Greg v. Georgia, that each individual case should be considered upon its merit and that the imposition of the death penalty pursuant to a mandatory statutory scheme was unconstitutional and violate of the Eighth Amendment. The court went on to say that the trier of fact, whether it is the court or a jury, should be allowed to take into consideration conditions in mitigation and aggravation prior to the imposition of the ultimate penalty. This, the court reasoned, would require a two phase hearing in which the jury made an initial determination of guilt or innocence and then the same jury reconvened to take additional testimony as to those conditions in mitigation and aggravation and made a determination as to the punishment, Woodson v. North Carolina (1976) (Stuntz, 2004).

Prior to June 1995, Section 24-3-530 of the South Carolina Code of Laws provided that all persons receiving the death penalty shall suffer such penalty by electrocution. Subsequently, the General Assembly amended Section 24-3-530. Effective June 8, 1995, persons sentenced to death may elect to suffer such penalty by lethal injection. However, the election must be made in writing fourteen days before the execution date or it is waived. If the person waives the right of election and the sentence was imposed prior to June 8, 1995, the penalty will be administered by electrocution. If the person waives the right of election and the penalty was imposed on or after June 8, 1995, the penalty will be administered by lethal injection (Stuntz, 2004).

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Mens rea and actus reus are legal terms used to define a crime. Both Mens rea and actus reus must be present for an accused to be found guilty of a crime (except for strict liability). Mens rea means that the person must have had a guilty mind at the time of committing the crime. That is they must have intended to commit the crime. Actus Reus means wrongful act meaning that the person must have committed an act that is defined as wrong by law. Several common law jurisdictions define act differently but generally, an act is a bodily movement whether voluntary or involuntary. In Robinson v. California, 370 U.S. 660 (1962), the U.S. Supreme Court ruled that a California law making it illegal to be a drug addict was unconstitutional because the mere status of being a drug addict was not an act and thus not criminal (Kendall, 2009).

The sentence is the final act of a judge ruled process. A sentence usually involves imprisonment, a fine, or other punishments against a defendant convicted of a crime. Changes in sentencing law and policy, not increases in crime rates, explain most of the six-fold increase in the national prison population. These changes have significantly impacted racial disparities in sentencing, as well as increased use of one size fits all mandatory minimum sentences that allow little consideration for individual characteristics. The progress of civilization has resulted in a change in the theory and in the method of punishment. In the past punishment was left to the individuals wronged or their families, and was vindictive or retributive: in quantity and quality it would bear no special relation to the character or gravity of the offense. This paper discussed sentencing, punishment as well as mens rea and actus reus.