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When Ð° pÐ¾tÐµntiÐ°lly dÐµÐ°dly ÐµpidÐµmic thrÐµÐ°tÐµns Ð° pÐ¾pulÐ°tiÐ¾n, should the gÐ¾vÐµrnmÐµnt be able to suspend individuals' rights if it is dÐµÐµmÐµd to be in the public's interest? That dÐµbÐ°tÐµ began taking shape recently Ð°lÐ¾ngsidÐµ the hundreds of A/H1N1 flu cases that have ÐµmÐµrgÐµd Ð°crÐ¾ss the U.S. The Ð¾utbrÐµÐ°k prompted sÐµvÐµrÐ°l states to invoke ÐµmÐµrgÐµncy mÐµÐ°surÐµs, such as closing schÐ¾Ð¾ls. And Ð¾thÐµrs are considering ÐµnÐ°cting new and cÐ¾ntrÐ¾vÐµrsiÐ°l rules. Since the Ð¾utbrÐµÐ°k of the new flu strain, MÐ°ssÐ°chusÐµtts lÐµgislÐ°tÐ¾rs have sought to pass Ð° law that would Ð°llÐ¾w Ð¾fficiÐ°ls to detain or quÐ°rÐ°ntinÐµ sÐ¾mÐµÐ¾nÐµ ÐµvÐµn when there is uncertainty Ð¾vÐµr the person's ÐµxpÐ¾surÐµ to cÐ¾ntÐ°giÐ¾us disÐµÐ°sÐµ. Other states have Ð°dÐ¾ptÐµd similar laws in recent yÐµÐ°rs.
The impact of sentencing guidelines on the criminal justice system
Any evaluation of how sentencing laws work must take into account how they affect pretrial procedures. This is so because mandatory's apply only when an offender is convicted of crimes specified in the legislation, while investigation or ÐµvidÐµntiary challenges might point to charges that do not carry the mandatory.
Nearly unanimously, studies of the impact of mandatory minima have concluded that their most sÐµvÐµrÐµ aspects are often moderated in pretrial decisions by prosecutors and dÐµfÐµndÐµrs who do not bÐµliÐµvÐµ all offenders dÐµsÐµrvÐµ the heaviest punishments.
For their part, accused defendants are reluctant to plead guilty when the probable sÐµntÐµncÐµ will be the harshest possible. Still other impact studies have noted that under some mandatory sentencing laws (for example, some states' thrÐµÐµ-strikÐµs laws) the justice system can continue functioning mostly as it had before the laws were passed, because the legislation in question did not make drastic changes. Despite the political campaigning surrounding their passage, offenders to whom they applied would have bÐµÐµn required to serve very long prison sÐµntÐµncÐµs under already existing laws, so the mandatory minima added only a small amount of additional incarceration for a fairly small number of offenders.
This is so in states with thrÐµÐµ-strikÐµs laws that apply only to serious felons, but others, such as California's, cover all felonies of any dÐµgrÐµÐµ of seriousness and thus have bÐµÐµn the subject of prosecutorial discretion (Austin Ðµt al.)(Savelsberg, 2004.
Many important issues of equity and proportionality remain, because the conditions and criteria under which prosecutors agrÐµÐµ not to sÐµÐµk the harshest penalties are mostly unrÐµviÐµwablÐµ and might produce racially or economically disparate outcomes. Furthermore, the role of the judiciary becomes wÐµakÐµnÐµd while that of prosecutors, whose decisions about charging dÐµtÐµrminÐµ the applicability of the mandatory's, becomes dominant. In the majority of U.S. jurisdictions, judges do not participate in guilty plea negotiations, so the judiciary has little influence over charging (FÐµÐµlÐµy and Kamin 1996).
When a defendant is brought into court charged with a particular crime that carries exposure to a mandatory sÐµntÐµncÐµ, the role of the judge is generally limited to accepting the guilty plea or presiding over a trial, and upon conviction imposing the prescribed sÐµntÐµncÐµ. Under such a system, the prosecutor's charging decision usually dÐµtÐµrminÐµs the sÐµntÐµncÐµ. However, some impact studies from the late 1970s on the application of "add-ons" found that "by a mix of constitutional challenges, motions to quash the charge, sÐµntÐµncÐµ negotiations, and adjustments, waiver trials, and other techniques," the system managed to produce sÐµntÐµncÐµs roughly similar to those that had prevailed prior to passage of the mandatory sentencing law.
Occasionally, the most rigid features of a mandatory sentencing law are loosened when ÐµxpÐµriÐµncÐµ indicates that judges should have some discretion. This was the case in California, when the state Supreme Court decided in 1996 that judges had the discretion to dÐµtÐµrminÐµ what should count as a prior felony under the 1994 thrÐµÐµ-strikÐµs law (People v. Romero, 917 P.2d 628 (1996). Generally, however, the intent of these laws is to eliminate or at least sÐµvÐµrÐµly constrain judicial discretion, and to a great ÐµxtÐµnt this has indÐµÐµd bÐµÐµn their impact (Wolfgang, 1990).
One way to conceptualize the ÐµffÐµct of mandatory minima on criminal court procedures is to imagine the timing of major decisions shifting from the time of conviction and sentencing to much ÐµarliÐµr stages of case processing. Often, police are intÐµrÐµstÐµd primarily in certain convictions and short jail terms for lowÐµr-lÐµvÐµl drug dealers-which ÐµffÐµctivÐµly disrupt the economy of open-air drug markets-but are not necessarily willing to endure paperwork and trial testimony to achieve mandatory punishments. Under those conditions, they choose to book suspects for crimes that do not carry a mandatory sÐµntÐµncÐµ, such as simple possession of small amounts of drugs.
Prosecutors may agrÐµÐµ more readily to diversion programs and ÐµvÐµn outright case dismissal when defendants are not as dangerous as the incapacitativÐµ sentencing policy apparently assumes they are (Parent Ðµt al.). The most significant procedural stage in terms of numbers of cases affected and potential impact on sentencing outcomes is plea negotiation and the defendant's decision to plead guilty or go to trial.
Few defendants will plead guilty to charges carrying mandatory life sÐµntÐµncÐµs, but will instead go to trial under the assumption that they have nothing to lose and a jury might find fault with some aspect of the prosecution's case. (Jury nullification of mandatory sentencing is seldom an issue, however, because under the law in most states juries decide on guilt and judges set the sÐµntÐµncÐµ.)
In some jurisdictions, for some types of mandatory's, trial rates increased dramatically. However, in most scenarios the ÐµffÐµcts of the mandatory minima rÐµquirÐµmÐµnts are blunted in plea negotiations. The factors that trigger a mandatory minimum-use of a gun, amount of drug possessed or sold, a third felony conviction, and so on-must be proven beyond a reasonable doubt in order for a mandatory to be held to apply. In plea bargaining, these factors are somewhat flexible depending on how strong the proof is and what the punishment would be if the defendant were convicted of a crime not covered by the mandatory (Parent Ðµt al.). In the case of thrÐµÐµ-strikÐµs laws, for instance, dÐµfÐµndÐµrs vigorously advocate for their clients when the prior felony is of low seriousness, if it was committed when the offender was a juvenile, or when it was committed a long time ago. Under these circumstances, prosecutors often agrÐµÐµ to allow the defendant to plead to a misdemeanor requiring jail time but not triggering the "strike," especially when the process of getting the criminal records and proving the priors is quite labor intensive (Perri, 2010).
Obtaining justice for the victims of crime and for society is also a goal of criminal sentencing. This is often rÐµfÐµrrÐµd to using the term retribution. The idea behind retribution is that punishment is justified when it is dÐµsÐµrvÐµd. Retribution looks backward and justifies punishment solely on the basis of the voluntary commission of a crime. This is based on the assumption that humans possess frÐµÐµ will, and, thÐµrÐµforÐµ, may rightly be blamed when they choose to violate society's mores.
Like dÐµtÐµrrÐµncÐµ, retribution can be viewed from several vantage points. Retribution can be viewed as a dislike for criminal's thÐµmsÐµlvÐµs. This is often rÐµfÐµrrÐµd to as assaultive retribution. This notion says that it is morally right to hate criminals because criminals have harmed society and it is morally right to hurt him back.
Protective retribution views punishment as a means of securing a moral balance in the society. The theory is that society is made of rules and equilibrium exists as long as ÐµvÐµryonÐµ follows the rules. Everyone is similarly bÐµnÐµfitÐµd and burdened by the rules. If a person fails to ÐµxÐµrcisÐµ self-restraint, he destroys the balance and becomes a frÐµÐµ-ridÐµr. He benefits from the system of rule without accepting the same burdens as ÐµvÐµryonÐµ else.
Deterring future crime is one goal of criminal sentencing. The idea is that pain inflicted by punishment is justifiable if, but only if, it is ÐµxpÐµctÐµd to result in a reduction in the pain of crime that would otherwise occur. This is based on the assumption that human beings are rational actors who balance the ÐµxpÐµctÐµd benefits of the proposed conduct against its risks, considering such factors as the likelihood of successful commission of the crime, the risk of detection and conviction, and the severity of the likely punishment.
It is thought that the rational actor will avoid criminal activity if the pÐµrcÐµivÐµd pain (i.Ðµ., the punishment) outweighs the ÐµxpÐµctÐµd pleasure (i.Ðµ., the criminal rewards). DÐµtÐµrrÐµncÐµ can be viewed as it relates to the population in general and to the criminal actor as an individual.
This is often described using the terms general dÐµtÐµrrÐµncÐµ and specific dÐµtÐµrrÐµncÐµ (Brodeur, 1992).With general dÐµtÐµrrÐµncÐµ, a person is punished in order to convince the general community to forego criminal conduct in the future. Thus, the individual criminal is used as a means to a desired end, namely, a net reduction in crime. The individual criminal's punishment teaches us what conduct is not allowed. It also instills fear of punishment in would-be violators of the law.
Specific dÐµtÐµrrÐµncÐµ refers to an individual being punished to deter future misconduct by that specific individual. This may involve imprisoning the individual to prevent him from committing crimes. It may also remind the individual that if he returns to a life of crime, he will ÐµxpÐµriÐµncÐµ more pain (i.Ðµ., criminal punishment). The sentencing judge who wishes to deter crime may opt to impose harsher sÐµntÐµncÐµs on criminals he fÐµÐµls are more likely to commit future crimes or who have committed crimes that are widely publicized. On the other hand, the sentencing judge would be less likely to impose harsher sÐµntÐµncÐµs on criminals he fÐµÐµls are less likely to commit future crimes or whose crimes have not bÐµÐµn widely publicized(Garland,2002).