Upon the conclusion of a trial with a guilty verdict, where the guilty party does not choose to appeal or the appeal reaffirms the guilty verdict, the subsequent phase in the criminal justice process is the sentencing stage. During a sentencing hearing, the judge presiding over the case determines the appropriate punishment for the convicted individual. The hearing provides an opportunity for both the prosecution and defense to present arguments, legal precedents, evidence, and any additional relevant information pertinent to the sentencing decision. The goal of the sentencing hearing is to balance the interests of justice, public safety, and rehabilitation, tailoring the punishment to fit the specific circumstances of the case and the individual offender. The judge’s decision at the sentencing hearing significantly influences the consequences the convicted individual will face, ranging from fines and probation to imprisonment, depending on the severity of the offense.

Pre-Sentencing

In certain jurisdictions, community corrections officers will compile a pre-sentencing report, also known as pre-sentence investigation report (PSI), prior to the sentencing hearing to aid judges in determining appropriate sentencing for a convicted individual. PSIs comprise a comprehensive overview of the convicted individual’s background, personal history, and social context. They encompass information about the defendant’s criminal history, education, employment, family background, and any pertinent health issues. Victim impact statements may also be integrated into PSI materials, addressing the consequences of the crime and its effects on the victims and their families. Typically, financial information and the probation or community corrections officer’s recommendation for an appropriate sentence are included in the report. By providing comprehensive insight into the offender’s circumstances, PSIs assist judges in crafting sentences that take into account the specific details of each case, thereby promoting a more equitable and just legal outcome.

During the sentencing hearing, the judge may consider various factors such as age, criminal record, current convictions, and the use of weapons, as well as information provided in the pre-sentencing report including the victim impact statements and recommendations from probation or community corrections officers to shape a well-informed sentencing decision. Other factors such as the nature and severity of the crime, the charges and the evidence presented during trial, along with any mitigating or aggravating circumstances, are also taken into account. Aggravating circumstances are factors such as a lack of remorse or engaging in grotesque or violent behavior that could incline the judge toward a more punitive stance. In contrast, mitigating circumstances are elements that may lead the judge to reduce the sentence. Examples of mitigating circumstances include cases involving first-time offenders, instances where the defendant expresses genuine remorse, or situations where social or family factors may have substantially influenced the defendant’s involvement in criminal activity.

Indeterminate vs Determinate Sentencing

In the early and mid-19th century, both states and the federal government predominantly utilized indeterminate sentencing within the legal system. In this sentencing model, the duration of a convicted individual’s prison term is not rigidly fixed but instead falls within a wide range established by law. Contrary to a predetermined and inflexible sentencing structure, this methodology provides judges with a degree of discretion in determining the actual duration of imprisonment, allowing for flexibility to consider various factors such as the offender’s behavior, level of remorse, and efforts toward rehabilitation. Ideally, this discretionary power enables the tailoring of punishments to suit the unique circumstances of each case, fostering a more equitable and nuanced approach to sentencing.

In states utilizing indeterminate sentencing, legislators establish broad sentencing structures with substantial gaps between the minimum and maximum sentences for a specific conviction. This framework grants judges with considerable discretion in determining the length of imprisonment for a convicted individual. Once sentenced and incarcerated, the inmate engages in periodic meetings with a parole board, which evaluates their progress and decides whether they should be released before serving the maximum sentence. If the parole board deems further incarceration necessary, the inmate remains incarcerated until their next parole hearing. Conversely, if the parole board perceives that the inmate has been rehabilitated, the inmate is released, completing the remaining sentence in the community under parole supervision.

The indeterminate sentencing model affords judges and parole boards with an extensive degree of discretion in determining both the nature and duration of punishment for a given offender (Gertner, 2010). Although intended to tailor sentences to individual circumstances, this discretionary authority unintentionally resulted in sentencing inconsistency, obscuring rehabilitation efforts and jeopardizing the pursuit of justice.

Despite the initial goal of promoting rehabilitation and successful reintegration into society based on demonstrated improvement and compliance with rehabilitation efforts, the indeterminate sentencing model fell short of intended objectives. This shortfall is attributed to the improper implementation of rehabilitation practices and inadequate policies. Unfortunately, indeterminate sentencing evolved into one of the most discriminatory and misused tools within the criminal justice system (Pisciotta, 1994).

Against the backdrop of rising crime rates, issues of discrimination, and the “tough on crime” political agenda of the 1980s, a broad-based consensus emerged on the need for sentencing reform. Advocates from various political perspectives rallied for reform during this period, encouraging the adoption of determinate sentencing, which involves a fixed sentence for a specific criminal offense, to replace indeterminate sentencing (Spohn, 2014).

Liberal reform proponents, exemplified by organizations like the American Civil Liberties Union, argued that indeterminate sentencing was inherently inconsistent and excessively punitive, leading to widespread discrimination against minorities and the economically disadvantaged. To address these concerns, these advocates called for constraints on parole board and judicial discretions (Tonry, 1995).

Simultaneously, conservative advocates for reform argued that indeterminate sentencing policies failed to adequately punish criminals for serious offenses. They maintained that judges often displayed excessive leniency, often characterized as being too “soft oncrime.” Consequently, they asserted the imperative to adopt determinate sentencing policies to guarantee more stringent punishments. This conservative viewpoint posited that implementing determinate sentencing would result in a more effective reduction in crime rates (Wilson, 2013). The convergence of these varied concerns and perspectives emphasized the pressing urgency and complex nature of the sentencing reform discourse during that pivotal period.

In 1980, Minnesota led the way in pioneering sentencing reform efforts through the implementation of statewide sentencing guidelines, and by 2019, the federal government, the District of Columbia, and 19 states had also embraced similar reforms, adopting various forms of sentencing guidelines (Frase, 2019). These guidelines, depicted in Figure 8.27, set forth a narrow range of minimum and maximum sentences, offering a more controlled and consistent framework for making sentencing decisions.

The widespread adoption of determinate sentencing policies marks a significant paradigm shift towards a more structured and uniform approach to criminal punishment. In jurisdictions that implement determinate sentencing, judges operate within a more structured framework, obligated to strict adherence to predetermined sentences. These sentences are established through statutes or sentencing guidelines intended to ensure consistency in punishment among similar offenses.

This structured and standardized approach offers a systematic method for sentencing, enhancing clarity and predictability within the criminal justice system. While determinate sentencing aims to promote more equitable outcomes and reduce the potential for abuse by limiting the discretion of judges and parole board, it does not entirely eliminate discretion. Instead, the authority to set specific sentence lengths was transferred to prosecutors and legislators who define sentencing guidelines, statutory minimums and maximums.

Despite significant strides in sentencing practices, concerns about determinate sentencing persist. Criticisms centered around the potential for sentencing disparities resulting from the degree of legislative decisions and prosecutorial discretion within this framework. Further critiques arise from arguments about the inflexible structure of determinate sentencing, where the rigidity of the model fails to adequately consider the unique circumstances of each case. Additionally, this legal approach faces criticism for potentially contributing to overreliance on incarceration without addressing the root causes of criminal behavior and other crucial mitigating circumstances.

Concurrent vs Consecutive Sentencing

It is common for individuals to violate multiple laws while committing a crime. When this happens, individuals may face separate charges for each distinct offense, leading to multiple criminal charges (Husak, 2008). When facing charges for multiple crimes, the criminal justice system employs two primary methods of sentencing: consecutive sentencing and concurrent sentencing. These two approaches are often used by the courts to mitigate or exacerbate the punishment of a defendant, and are frequently taken into account during the plea negotiation process.

Consecutive sentencing involves an individual serving the sentences for each offense consecutively, one after the other. This results in a longer overall period of incarceration, as each sentence is served separately. Consecutive sentencing is typically employed when the nature of the crimes or the severity of the offenses warrants a more extended period of punishment. While concurrent sentencing is viewed as more lenient, consecutive sentencing is often considered a more punitive approach, reflecting the seriousness of multiple offenses.

Conversely, concurrent sentencing occurs when an individual convicted of multiple crimes serves the sentences for each offense simultaneously. In this scenario, the sentences overlap, and the individual spends a single period of incarceration that encompasses all the convictions, streamlining the incarceration period for multiple offenses. The recommendation of concurrent sentences by the prosecutor is often employed as a tactic to entice the defendant into accepting a ]plea negotiation. Concurrent sentences are used rather than simply dropping charges to ensure the individual receives a punishment even if one of the charges is overturned during the appeals process.

Judges wield significant discretion when determining whether sentences for multiple offenses should be served concurrently or consecutively. Judicial discretion, jurisdiction, and the prevailing legal framework constitute pivotal factors that weigh in on this decision-making process. The severity and nature of the offenses, the presence of aggravating or mitigating circumstances, and considerations of justice and public safety further contribute to the complexity of the judge’s choice. These multifaceted elements collectively shape the decision-making dynamics within the criminal justice system, influencing the chosen approach for managing sentences related to distinct offenses. Judicial discretion is paramount in this process, allowing for a nuanced and case-specific approach that empowers judges to tailor sentences to the unique circumstances of each case and the specific needs of the offender.

The decision between concurrent sentencing and consecutive sentencing carries substantial implications for the total length of the offender’s incarceration, underscoring the importance of judicial discretion in the sentencing process. Consider the hypothetical case of Johnny B. Goode, who faces charges for three offenses: drug possession with the intent to distribute (4-year sentence), robbery (7-year sentence), and aggravated assault (3-year sentence). If Johnny B. Goode is sentenced to concurrent sentencing terms, he would serve all sentences simultaneously, resulting in a total prison term of 7 years—the length of the longest sentence among the three. Conversely, if Johnny B. Goode receives consecutive sentences, each sentence would be served in succession, leading to a cumulative prison duration of 14 years—twice the length of the sentencing terms under concurrent sentencing.

“Tough On Crime” Sentencing

The notion that severe punishments, particularly lengthy prison sentences, act as a deterrent to criminal behavior and contribute to crime reduction laid the foundation for the "tough on crime" approach. This stance, often intertwined with political rhetoric showcasing a commitment to public safety, gained prominence during the 1980s and 1990s. This rise in support for this approach was fueled by escalating crime rates, popular punitivism, reduced funding for mental health institutions, and the shift of drug addiction from a public health issue to a criminal matter (Chambliss, 2000).

The “tough on crime” philosophy embraces a punitive strategy characterized by stringent penalties for criminal offenses, employing draconian sentencing practices like truth-in-sentencing, mandatory minimum sentencing, and three-strikes laws. This approach underscores the significance of incarceration, advocates for severe penalties in drug-related cases, and limits parole and early release options for offenders. The overarching nature of this approach reflects a comprehensive commitment to deterrence through punitive measures.

Truth-in-Sentencing

Truth-in-sentencing policies were among several sentencing changes championed by the “tough on crime” movement in the 1980s and 1990s. Truth-in-sentencing is a legislative policy mandating that offenders serve a substantial portion of their sentences before becoming eligible for parole, thereby curtailing opportunities for early release or reductions based on good behavior.

In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act, allocating a $10 billion budget for state prison construction to incentivize states to adopt truth-in-sentencing laws. By the twenty-first century, 42 states had implemented these incentivizing measures (Tonry, 2013).

Prior to these legislative changes, states like Wisconsin permitted offenders to become eligible for parole after serving only 25% of their sentence, and many were mandated to be paroled after serving just two-thirds of their sentence (Hammer, 2002). However, following the adoption of truth-in-sentencing policies, Wisconsin introduced new mandates requiring the majority of inmates to serve their full sentences. Even among the small number of offenders who were eligible to apply for early release after completing 75% of their sentence were seldom granted approval of their requests for early release (Adelman, 2013).

Mandatory Minimum (Mandatory Sentencing Laws)

A consequential outcome of the “tough on crime” agenda at the close of the twentieth century was the implementation of mandatory minimum sentencing. Also known as mandatory sentences, this legal concept dictates a minimum period of incarceration for specific criminal offenses. Offenses subject to mandatory minimum sentencing have predetermined, non-negotiable minimum sentences established by legislation, often at the state or federal level, which include severe penalties for certain crimes. Judges and prosecutors are obligated to impose, at the very least, the specified minimum term of imprisonment upon conviction, significantly limiting judicial discretion and the flexibility to consider mitigating circumstances, intent, or other unique circumstances when determining the sentence.

While the adoption of mandatory minimum laws found general acceptance across the political spectrum, disagreements arose concerning the specific criminal offenses that should warrant mandatory sentencing. For instance, conservatives predominantly favored the use of mandatory minimum sentencing laws for drug-related offenses, whereas liberals leaned toward employing mandatory minimum sentencing primarily for gun violations (Husack, 2008). Despite these disparities in preference, all 50 states, the District of Columbia, and the federal government had enacted at least one mandatory minimum sentencing law by the mid-1990s (Tonry, 1998).

While this approach ensures sentencing consistency, it has sparked considerable debate. Advocates contend that imposing harsh and predictable consequences for specific offenses serves as an effective deterrent of crime. However, opponents argue that it undermines fairness and individualized justice by limiting judges’ ability to tailor sentences to the unique circumstances of each case. This limitation in judicial discretion can result in sentences that do not align with the severity of the crime and can contribute to sentencing disparities, particularly in the form of disproportionately severe penalties for non-violent offenses. Problematically, the implementation of mandatory minimum sentencing has led to a significant increase in prison populations, resulting in overcrowded correctional facilities and raising concerns about inhumane conditions (Husack, 2008).

Three-Strikes Laws

Three-strikes laws are habitual offender laws that impose harsher sentences on individuals previously convicted of serious or violent felonies. similar to [pb_glossary id=526]]mandatory minimum and truth-in-sentencing laws, three-strike laws gained popularity during the 1990s. Between 1993 and 1995, a total of 24 states and the federal government implemented forms of three-strikes laws, although Texas had enhancement sentencing laws dating back to the 1970s (Karch & Cravens, 2014). In many instances, three-strikes laws automatically initiate a life sentence upon an offender’s third felony conviction, or “third strike.” In several states, such as California, even minor felonies can contribute to second and third felony “strikes” that lead to a life imprisonment sentence.

Initially, three-strikes laws were grounded in the literature regarding career criminals and the concept of select incapacitation. Research during the 1970s and 1980s revealed that approximately 18-22% of all offenders were responsible for nearly 50-55% of all crime (Chaiken & Chaiken, 1984; Wolfgang et al., 1972; Wright & Rossi, 1985). These findings underpinned the notion that a vast majority of crime could be eliminated by effectively incapacitating habitual offenders with life imprisonment sentences, prompting the selective incapacitation movement. While this concept appears effective and beneficial to society in theory, these sentencing practices were exceedingly problematic and lead to an exponential increase in prison populations. By 2004, the total prison population in California exceeded 160,000, with second and third strike offenders accounting for only 43,000 inmates (Brown & Jolivette, 2005). By 2010, this sentencing pattern fueled by the three-strikes laws led to incarceration rates in California’s prisons to be 180-200% over capacity (Mullen et al., 2019).

By the early 2000s, it became apparent that three-strikes laws were inefficient and overly punitive. Numerous cases garnered media spotlight, creating public awareness of the draconian measures. For instance, in Ewing v. California (2003), Ewing received a 25-year to life sentence for stealing three golf clubs with a total value of less than $1200 (Kieso, 2005). As prisoner populations surged to unprecedented levels, the cost of incarceration became unsustainable, particularly during the 2009 great recession. Even prosecutors, who typically adopt a "tough on crime" approach, took measures to circumvent mandatory minimum and three-strike laws by charging defendants with lesser crimes than those for which they were arrested (Bjerk, 2005).

Although the “tough on crime” perspective asserts that these punitive measures will enhance public safety and deter criminal activity, little research has been found to support these claims. By contrast, this approach has faced much criticism due to its lack of focus on offender rehabilitation and successful reintegration into society, negative disproportionate impact on marginalized communities that contribute to problematic racial and socioeconomic disparities, and contribution to prison overcrowding, which strains correctional systems and resources and significantly raises operation costs. In recent years, there has been growing public recognition for sentencing reform, with efforts focused on the reevaluation and modification of “tough on crime” policies to be replaced with more balanced and effective approaches for addressing criminal behavior and sentencing practices.

Attributions

1. Figure 8.27: Basic Sentencing Matrix © Pennsylvania Code Used with permission. Terms of use state “[n]o part of the information on this site may be reproduced for profit or sold for profit.”
2. Figure 8.28: Victory by John P. Soule (photographer) in the Public Domain; This work is from the Library of Congress. According to the LOC, there are no known copyright restrictions on the use of this work.