The purpose of criminal sentencing is consistent with the act of criminal punishment which serves the objectives of rehabilitation, deterrence, incapacitation, and restitution or restorative justice to victims and the society at large. This is inherently done by a judge to a person convicted of a crime. Garland (1990:17) defines it as “the legal process whereby violators of criminal law are condemned and sanctioned in accordance with specified legal categories and procedures”.
The duration of the sentence or prison term depends upon either; the severity and nature of crime, particular state and/or federal sentencing guidelines, convict’s criminal record, and the discretion of the sentencing judge or jury. The offenders are sentenced or placed in custody to protect the public from the chance of prospect aberrant behaviour (H. Morris 1994: 238). The sentencing may also be in form of parole, whereby the convicted person serve non-custodial sentence. The offender is placed under supervision, which may restrict the person from opportunities to commit crime (Ten 1987: 8). There are two main forms of sentencing, i.e. indeterminate and determinate sentencing.
In indeterminate sentencing, a judge sentences an offender to a minimum range of years in custody. The state legislature however, sets a comparatively minimum term the convict must spend in prison (e.g., a third of the minimum sentence). Then a state parole board decides the actual date of incarceration discharge. While some states establish a particular set of criteria to be followed by the parole board, in other states, the actual decision is at their discretion. Indeterminate sentencing often leads to discriminatory results. Individual parole boards’ panellists have been accused of not being subjective but rather partisan, with charges of racialism prevalent in some state panels (Sentencing Project: Sept. 2008). Proponents of the system, however, argue that indeterminate sentences present the convicts with an inducement to take advantage of programs designed for rehabilitation and hence get released or paroled with less chance of a misdemeanour recurrence. The incarceration ought to have reformative or rehabilitative effects on the offender (Ten 1987: 7-8).
In determinate sentencing, the custodial term limit is set by the court. The release date is not subject to discretion or to the parole boards. The push for the determinate sentencing system was initiated in the mid-1970s. The proponents of the system referred to this form of sentencing as “truth in sentencing”. The emergence of just deserts theory in the 1980s introduced sentencing guidelines and the sentencing commission to have uniform or proportionate prison terms. There is however, a push towards a hybrid system incorporating the two forms of sentencing, mainly by human rights groups. Many states are now adopting the new trend, with various programs (e.g. drugs abuse counselling) that result in lessening of sentences. In Illinois, the Director of the Department of Corrections has prudence to trim down prison terms by us much as 180 days on commendable “good behaviour”.
The shift towards determinate sentencing culminated into the Federal Sentencing Guidelines. The federal effort followed guideline projects in several states originally funded by the United States Department of Justice led by Jack Kress in the mid 1970s. They were gradually incorporated all over the country from, Denver (Colorado), Newark (New Jersey), Chicago (Illinois) and Philadelphia (Pennsylvania) Maryland, Michigan, Washington, and Delaware, before the federal sentencing guidelines were and eventually formally adopted in 1987.
They have been recommended by the American Law Institute and the American Bar Association to be used by all states. The Federal Sentencing Guidelines rules have set out a standardized sentencing guiding principle for the convicted defendants in the U.S. federal court system. These guidelines are set by the United States Sentencing Commission initiated in the mid-1980s. The reform package was led by Senator Edward Kennedy, Chair of the Senate Judiciary Committee and Attorney General Edwin Meese. The guidelines were aimed at alleviating sentencing disparities that research had indicated was prevailing in the previous sentencing system. These guidelines would lead to a determinate sentencing regime. This reform saw the dissolution of the United States Parole Commission. The guiding principle for the federal sentencing guidelines is based on two factors: conduct associated with the offence, and defendant’s criminal record. The Sentencing Table in the Guidelines Manual links the relationship the correlation between the two factors; each pairing of an offence level and criminal record, a sentencing range in months is depicted.
Although the guidelines were proposed to be mandatory, the Supreme Court in decision in (United States v. Booker 2005) found that the Federal Sentencing Guidelines, as originally constituted, violated the Sixth Amendment right to trial by jury. This led to the provisions of their being mandatory to be excised from the law. In other Supreme Court cases, e.g. Blakely v. Washington 2004, the guidelines were now considered as only advisory at both the state and federal levels. The judges could now only consider them in the calculation but not in issuing of sentences within the guidelines. As the U.S. crime rate levels escalated from the 1970s, the average length of custodial sentences equally amplified. The crime led to further legislations which continued to reduce prudence in both the sentencing procedure and the determination of when the conditions of a verdict have been fulfilled. The Determinate sentencing regime, mandatory minimum sentences, and federal guidelines based sentencing, all continued to impact on the human element or discretion previously observed. Courts discretion, in considering some ‘mitigating or extenuating circumstances’ when deciding on appropriate custodial sentence was gradually eroded. The upshot of the “three strikes laws,” the increase in the length of confinement in the last decade was most evident in the case of life prison sentences, which increased by 83% between 1992 and 2003.
The United States Sentencing Commission is a permanent independent judicial agency within the judiciary. It is the organ responsible for setting up the federal sentencing guidelines. The commission is made of seven members, whom who serve for a six year period. The commission has the discretion of amending the sentencing guidelines, policy statements, and official commentary. It submits to the U.S. Congress the selected sentencing guidelines amendments and the reasons by May for approval and they are set to be effectiveю
In 2008, it sought to have amendments like: Amendments to S2B1.1 (Larceny, Embezzlement and Other Forms of Thefts; Offences Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offences Involving Altered or Counterfeit Bearer Obligations of the United States) and Appendix A (Statuary Index) effective 2008; (2) the amendments to S1B1.10 (Reduction in Term of Imprisonment as a result of Amended Guideline Range (Policy Statement)), effective 2008; and (3) the amendment to the commentary to S2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offences); Attempt or Conspiracy) effective 2008. (U.S. Sentencing Commission)
Various public interest groups, organisations and individuals are welcomed to input their contribution before the commission finally deliberate on the particular amendments to the sentencing guidelines. The amendment which received much acclaim was touching on controversial crack cocaine possession ruling. This had been viewed as unfair and racially discriminatory, the mandatory minimum term (5 years) for possession of 5 grams of crack cocaine as opposed to 500 grams of powder cocaine (100 to 1) which had the same term was condemned by many humanitarian organisations. (NAACP-Newsletter, 2008).
One the interest groups, is the Sentencing Project organisation. A non-profit organisation set up to lobby for the interest of the disenfranchised convicted felons and ex-felons. It actively lobbies for the rights of the felons and ex-felons who are disadvantaged in terms of opportunities for education, jobs etc. This has led to these groups being in the forefront of crime due to their perceived lack of opportunities as they are disenfranchised from the main stream activities. The Sentencing Project lobbies with the United States Sentencing Commission for indeterminate and rehabilitative guidelines in the judicial system. The reform of policies geared towards a reconsideration and discretion in meting out sentences that have correctional objectives and the interests of the offenders. The organisation has actively lobbied for the rehabilitation of felons and ex-felons into being allowed back into the electoral registers. The many disenfranchised voters who are viewed as living outside the society, are encouraged to become better citizens, when they have full democratic participation.
Although criminal sentencing is society’s way of serving a deterrent and retribution to the offenders and victims respectively, the introduction of the uniform determinate Federal Sentencing Guidelines led to the rise in longer custodial sentences as did the rise in crime rates. These were counter-productive as the prison population rose to unmanageable levels, hence discrediting the effectiveness of the system. The need to use less deterrent and more rehabilitative sentencing in order to curb increasing case of repeat offenders has seen a slide back to the traditional indeterminate sentencing. The purpose of criminal sentencing should be both retributive and restorative, thereby rehabilitating both the victim and the offender for the general good of the society.
Work Cited
Articulate “Public Safety” as a Purpose of Sentencing, References are now to TENTATIVE DRAFT NO. 1 (2007.) Web.
U.S. Sentencing Commission. 2008. Web.
Felony Disenfranchisement Laws In The United States, The Sentencing Project (2008). Web.
Mixed Results US Policy and International Standards on the Rights and Interests of Victims of Crime, Human Rights Watch (2008).
The Sentencing Project Publishes Racial Disparity Manual for Practitioners, Policymakers (2008).
NAACP Newsletter: U.S Sentencing Commission Follows NAACP Recommendation on Crack Cocaine Sentencing (2008). Web.
