US Sentencing Facts (Part 1) PDF 2023-2024

Sentencing facts (part 1) Introduction: Purpose and Types of Sentences Whenever a defendant pleads guilty or is convicted at trial, the stage that follows is sentencing. Depending on the offense, sentencing can take place immediately after the conviction or a few days or weeks later, at a sentencing...

Sentencing facts (part 1) Introduction: Purpose and Types of Sentences Whenever a defendant pleads guilty or is convicted at trial, the stage that follows is sentencing. Depending on the offense, sentencing can take place immediately after the conviction or a few days or weeks later, at a sentencing hearing. 1. The purposes of punishment The sentence set by the judge in the case can serve one or several purposes. What type of sentence is chosen and therefore the purpose it serves depends, among other things, on the offense the defendant was convicted of, whatever aggravating and mitigating factors are presented at the sentencing hearing, the particular characteristics of the defendant as well as the leeway the judge has in setting the sentence. The main purposes of punishment are the following: - Retribution: consists in the convicted defendant receiving punishment that matches the seriousness of the offense(s) or giving them the punishment “they deserve” in view of the crimes they have committed. - Deterrence: consists in either dissuading the convicted defendant from committing crimes again or, through the example of the sentence given to the defendant, in dissuading the general public from committing crimes. - Rehabilitation: focuses on trying to reform the incarcerated person and helping them become a productive member of society. - Incapacitation: consists in removing the convicted person from society because they are believed to pose too serious of a threat and are incapable of being deterred or rehabilitated. - Restoration: consists in getting the convicted defendant to address the harm they caused the victim(s) of their crime(s) through any measures including financial restitution or community service. Any sentence handed down by a judge can serve one or several of those purposes. Trends in favor of one or the other have been observed over the past decades; it is often noted that in the 1970s a shift occurred from rehabilitation to retribution, although there is no single explanation for this change. 2. The sentencing hearing In misdemeanor cases, the sentence is usually handed down immediately after the conviction by the trial judge; in other cases, a date is set for a sentencing hearing in the days or weeks ahead. During that period, probation services will investigate and draft a presentence report with information for the court to use in making its sentencing decision. The sentencing hearing is an adversarial process hence both sides are allowed to present evidence, make arguments and call witnesses. The prosecution will introduce evidence of aggravating factors and the defense will present mitigating evidence. The standard of proof can vary and the rules of evidence are usually relaxed. Victim impact statements can be introduced; the Supreme Court ruled in 1991 that they may be admitted even if they are not related to the facts of the crime committed (Payne v. Tennessee). In capital cases, the trial jury convicts the defendant and also sets their sentence, in a separate phase of the trial; in other cases, it is a judge. 3. Most common sentences Here is a list of the most common types of sentences available: Capital punishment (i.e. the death penalty) Imprisonment/ incarceration (with or without parole) Probation: The sentencing judge can choose to hand down a suspended sentence, i.e. a sentence that the defendant will not serve as long as a number of conditions set by the court are met. Fines Restitution Other alternative sentences such as community service, drug treatment, electronic monitoring, house arrest etc. Whenever the defendant was convicted of several offenses, the judge can decide that the sentences be served concurrently, i.e. at the same time, or consecutively. This chapter will for the most part focus on three – among many – controversial types of sentences or sentencing policies: capital punishment, life without the option of parole and mandatory minimum sentences. I- The Death Penalty: Cruel and Unusual Punishment? The Eighth Amendment to the U.S. Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The last of the three provisions is referred to as the Cruel and Unusual Punishment Clause (CUP); it was incorporated against the states in Robinson v. California (1962). The interpretation of that clause has often been and still is hotly debated. It has most often been used by convicted defendants to challenge a death sentence, but over time it has also been used to challenge other types of sentences, the fairness of capital trials, who may or not be sentenced to death, methods of execution as well as prison conditions. In time, the debate has evolved toward challenging the use of the death penalty altogether. The federal government and the U.S. military apply the death penalty in some limited cases (executions are currently on hold) but capital punishment is used essentially at state level. A majority of states still use it although the current trend is toward more states abolishing it – for various reasons, moral, ethical, legal but also economic. Today, 27 states still allow capital punishment and 23 states have abolished it. The Supreme Court has never declared the death penalty itself to constitute cruel and unusual punishment. The closest it got to declaring it unconstitutional was in the 1970s. Until then, it had only addressed cases dealing with the constitutionality of individual executions. 1. Fairness in capital trials In the 1970s, the Supreme Court set new standards for the death penalty. Following a controversy over racial discrimination in capital trials, in Furman v. Georgia (1972), a 5-to-4 majority decided that capital punishment as practiced then was unconstitutional since the judge and jury lacked precise guidelines to ensure fairness in sentencing. This decision led to a de facto moratorium on executions until the states demonstrated they had adopted those guidelines. Among others, they established a two-stage process for capital cases. The first stage decides on guilt or innocence and the second allows juries to consider aggravating or mitigating circumstances to be taken into account when deciding on punishment. The Supreme Court approved this change in Gregg v. Georgia (1976) and most death penalty states use this process today. As a consequence, the moratorium was lifted, and executions were allowed to proceed. In January 2016, in Hurst v. Florida, the Supreme Court struck down part of Florida’s death penalty system because judges were given too much power in sentencing capital defendants. The majority found that juries should make the findings of facts underlying capital sentences rather than simply make recommendations which judges only had to take into account. As of 2023, Florida juries can return majority death recommendations (of at least 8-4). Yet, in 2020 in McKinney v. Arizona, the court ruled an inmate was not entitled to resentencing by a jury when an error had been found with their initial death sentence. Concerning race and capital juries, in the May 2016 Foster v. Chatman decision, the Supreme Court found that Timothy Foster’s Sixth Amendment rights had been violated during his trial as the prosecution had impermissibly used peremptory strikes against at least one Black prospective juror. In 2019, the Supreme Court reversed Curtis Flowers’ sentence after finding the prosecutor in his six trials exhibited a pattern of striking as many Black jurors as possible and, more specifically, had committed a Batson violation in the sixth trial (Flowers v. Mississippi). In May 2018, in McCoy v. Louisiana, the Supreme Court ruled that an attorney cannot tell a court or prosecutor their client is guilty – even as part of a strategy to spare them a death sentence – if their client wishes to plead not guilty. 2. Methods of execution When executions started again in the late 1970s, most states adopted lethal injection as their method of execution; yet others remain, such as electrocution, the gas chamber, hanging and the firing squad. These are offered by a few states as an option to convicts who do not wish to be executed through a lethal injection. In the past decade, due to botched executions in several states, lethal injection, especially the drug cocktails used, has been challenged in courts. In Baze v. Rees (2008), the Supreme Court upheld the use of Kentucky’s three-drug protocol, but some justices indicated that other cocktails or drugs may not be constitutional. Over the past decade, several major U.S. and European pharmaceutical companies have refused to provide states with drugs to indicate their opposition to the death penalty, sometimes leading to de facto moratoria. To address this situation, some states chose to use new/different drugs like pentobarbital or midazolam, although questions are sometimes raised over where/how some states procure their execution drugs. There has been litigation to try and force the disclosure of that information on the basis that not knowing the provenance of the drugs could violate the CUP if the drug caused pain during an execution. Shield laws, allowing for the identity of drug suppliers to remain secret, have also been challenged on First Amendment grounds, here the right for the press to report on executions. Some states have anticipated difficulties with administering lethal injections and are reintroducing their former methods of executions or creating new ones. Tennessee has brought back the electric chair, while Oklahoma and Alabama have for the first time authorized the use of nitrogen gas. In 2021, South Carolina reintroduced the firing squad as an additional choice (to electrocution) for inmates if the state cannot carry out lethal injections; these changes are under review by the S.C. Supreme Court. In June 2015, in the 5-4 *Glossip v. Gross decision, the Supreme Court upheld the use of the controversial sedative midazolam in executions. The court also elaborated on the new standard for challenging execution methods set in Baze: on top of proving the method they are challenging presents a “substantial risk of causing severe pain”, a death row inmate has to offer an alternative method of execution that is “feasible” and “readily implemented”. In Bucklew v. Precythe (2019), the Supreme Court found Russell Bucklew, a death row inmate with a rare medical condition, had met neither of the two criteria and denied him the right to be executed by nitrogen hypoxia. 3. Who may be sentenced to death? In the early 2000s, the Supreme Court overturned precedents about two important categories of defendants: juveniles and the intellectually disabled or “mentally retarded”. The majority in those cases insisted on the diminished responsibility of these defendants, on international law and especially on the – controversial – concept of the “evolving standards of decency in a civilized society”. In *Atkins v. Virginia (2002), the court declared the execution of the “mentally retarded” unconstitutional and in *Roper v. Simmons (2005), it found the execution of defendants who were under 18 when they committed their crime unconstitutional, regardless of the crime. An issue raised in the wake of Atkins has been how to define intellectual disability. In *Hall v. Florida (2014), the Supreme Court found that Florida's strict IQ cutoff for determining intellectual disability was unconstitutional. Legislation in Florida had set a strict threshold; a capital defendant with an IQ of 70 or less could be found “mentally retarded” but not one with an IQ of 71. The Supreme Court held that the five-point margin of error had not been taken into account and that courts should take into account other evidence of intellectual disability/deficits than IQ tests, as well as look at adaptive deficits and early onset for both. In March 2017, in Moore v. Texas, the Supreme Court ruled that the criteria chosen by Texas to assess mental disability fell far short of the Atkins requirement, as they either did not take medical information into account or relied on outdated medical information. Bobby Moore was once again found to be competent by the Texas Court of Criminal Appeals. In February 2019, the Supreme Court reviewed its decision and held that, while the TCCA had relied on current medical information, it had also still referred to some of the outdated factors the Supreme Court had flagged in 2017 (Bobby Moore was resentenced in November 2019 and granted parole in June 2020). During the same term, in Madison v. Alabama, the Supreme Court also provided further guidance on the issue: an inmate whose multiple strokes led him to not be able to remember his crime anymore might be ineligible for execution if his memory loss was also accompanied by an inability to understand why the state was seeking to execute him. Some states like Tennessee and Kentucky have legislated to render ineligible for the death penalty defendants who suffered from a number of mental illnesses at the time they committed their crime. The Supreme Court has also rejected the use of mandatory death sentences (Woodson v. North Carolina, 1976), because individual circumstances have to be taken into account. Since Kennedy v. Louisiana (2008), the death penalty has only been allowed for murder.