Chapter 3

The Purpose of Punishment

and Sentencing Trends

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 Learning Objectives

• To understand the basic functioning of the

sentencing process.
• To understand the relationship between
sentencing and the state of penal institutions.
• To grasp the function and process of the
presentence report.
• To clearly understand the part that risk
assessment plays in sentencing.
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 Learning objectives

• To be able to name and discuss four

theories of sentencing.
• To gain an understanding of restorative
justice philosophy and practice.
• To be aware of changing social factors and
how they influence sentencing policy.

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 The Purpose of Punishment and Sentencing Trends

• Sentencing policies and practices exert a huge influence

on the corrections system.

• They determine which individuals are managed through

which correctional options.

• Sentencing and sentencing requirements, which are often

dictated by law, affect the length of time that persons
remain under correctional supervision and generally set
the conditions for correctional social control.

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 How Sentencing Works

• After a conviction (finding of guilt) in the criminal justice system,

the court makes a determination on the appropriate penal response
to the offense and the offender, which is called a sentence.

• A presentence investigation (PSI) is created and suggests

supervision options to the court. PSI’s are most often written by
probation officers to help inform the court about the offender and
make recommendations for sentencing. A PSI report includes just
about everything we know about an offender. Their current offense,
criminal history, risk assessment, employment, education, family,
substance abuse, mental health, military service, peers, victim
statement, and any recommendations for restitution.

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 How Sentencing Works
• In 2015, 17 states (including Illinois) and the District of Columbia
primarily used a determinate sentencing scheme.
• Judges can sometimes depart from those determinate sentences
by stating certain aggravating or mitigating factors. Aggravating
factors such as torture, murder for hire, death of a child or police
officer can increase the punishment while mitigating factors like age
or mental illness can decrease punishment.
• Some states and the federal court system have sentencing
guidelines that use a variation of these defined sentencing options.
The two main factors considered in the guidelines is the severity of
the current offense and someone’s prior criminal history.
• https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2018/
Sentencing_Table.pdf
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 Determinate vs. Indeterminate
Sentencing
• The type of sentence states use influences the length of sentence, how someone is
released from prison, and supervision after prison. The two most common are
determinate or indeterminate. In Illinois, we use determinate for adults and have
since the 1970’s. We use indeterminate for juveniles and have since the early
1900’s.
• Determinate: A fixed sentence amount such as 7 years. It has been used from the
1970’s to now. It developed out of the belief that rehabilitation was NOT working and
offenders needed to serve a fixed amount in prison as punishment. Determinate
sentencing favors incapacitation and deterrence. When the U.S. switched to
determinate sentencing, they abolished parole and parole boards. An offender gets
released from prison when their time is up, regardless if they are rehabilitated. After
an offender has served their prison sentence, they are placed in the community on
Mandatory Supervised Release (MSR). MSR is practically the same thing as parole,
but there is no parole board to decide release, time decides release. For those states
that use determinate sentencing for adults (including Illinois), actual parole has NOT
existed since the 1970’s. The public and many in the criminal justice system still call
it parole, but it’s actually Mandatory Supervised Release.
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 Determinate vs. Indeterminate
Sentencing
• Indeterminate: A range for a sentence, such as 5 to 10
years. It was used from the 1930’s-1970’s and favors the
philosophy of rehabilitation. People were given a range of
sentence so that if they could show the parole board they
were rehabilitated, they could be released from prison on
the lower end of the range. Those that were considered to
not be rehabilitated would serve a lengthier sentence in that
range. Prison Parole Boards decided if and when an
offender was released. If offenders were released from
prison, they were placed on parole and supervised in the
community.

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 The Presentence Report

• Another important part of the report has to do with the likelihood that
the defendant will reoffend in the future, as measured by a risk
assessment instrument (RAI).

• The RAI helps to evaluate risk level by ranking offense severity and
offense history, among other factors. Commonly a risk assessment
will identify someone as high risk (greatest chance for a new offense),
medium risk, or low risk (low chance for a new offense).

• A presentence investigation may rely on “hearsay evidence,” and the

defendant does not have the right to confront his or her accusers, as
he or she would have in criminal court.

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 The Presentence Report

• As noted earlier, sentences may be largely

determined by the results of plea bargains
or by statutes that mandate the penalties for
various crimes.
• Review Plea Bargains on p. 60
• Research has found that Judges follow
presentence investigation recommendations
over 90% of the time.
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 Risk and Needs Assessment

• Concerns about the uneven quality of

presentence reports and attention to precisely
allocating scarce resources where they can
have the most positive effect have led to the use
of very structured risk and needs assessment
tools in the sentencing process.

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 Risk and Needs Assessment
• Risk factors are largely static (do not change) in nature and
are based on the type and severity of the offense.

• Criminogenic needs are also correlated with a likelihood of

reoffending but are generally of a dynamic or changeable
nature. Criminogenic needs are those factors that are found to
be DIRECTLY tied to offending.
• The top 3 criminogenic needs based on research are:
– 1. Antisocial/Criminal Peers
– 2. Antisocial/Criminal Thinking
– 3. Antisocial Personality

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 Risk and Needs Assessment
• Noncriminogenic needs have not been found to directly correlate to reoffending.
Noncriminogenic needs are something that may be a problem for an offender, but
are NOT tied to the reasons they offend. They may be considered as barriers to
success. While these are things that should be addressed to help the offender, it
will not change their risk for recidivism. Only addressing criminogenic needs will
reduce the risk for recidivism. Examples of noncriminogenic needs are:
• Anxiety
• Major mental health problems
• A history of victimization
• Substance Abuse (it’s not the abuse that’s the problem, it’s the criminal
thinking or criminal peers behind the abuse that is the criminogenic need)
• Employment
• Lack of transportation or child care

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 Sentencing Theories

• The evolution of correctional systems is deeply rooted in social and

economic transformations.

• The dominant political rhetoric is still focused on ideologies of

deterrence and retributive justice.

• Sentencing theories change with the times, culture, and media. From
the 1930’s to the 1970’s, the U.S. primarily believed in rehabilitation
and followed indeterminate sentencing. Since the 1970’s, it has been
about deterrence, incapacitation, and retribution and we follow
determinate sentencing.

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 Sentencing Theories
• Though political leaders can help shape the broad
outlines of public thinking on corrections, influence
can work in the opposite direction.

• Evolving public views can sometimes be reflected

in changes in official policies and practices, or at
least the attempt of political leaders to
accommodate, or appear to accommodate, altered
public viewpoints.
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 Retributive Justice
• Retributive Justice is also known as
Retribution. As a philosophy of punishment, it
means that we punish offenders simply
because they deserve it for breaking the law.
We are not trying to prevent crime, reduce
crime, or help offenders, we are simply
punishing because the person deserves it. An
“eye for eye” for the offense they committed.

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 Deterrence
• Deterrence is related to retributive justice but is a very different justification for penal practice.
• This theory of punishment is perhaps the most widely accepted in Western criminal law systems.
• It rests on the assumption that the goal of punishment is not reactive but rather preventive.
• This idea is prominent in efforts to head off repeat offending, or recidivism.

• Deterrence focuses on the “threat” of punishment or a “harsh” punishment to prevent FUTURE offending.

• Despite deterrence being a widely accepted philosophy and heavily used in the U.S., most research has found
deterrence based punishments to not be particularly effective in actually preventing crime and reducing recidivism.

• In order for deterrence to work, punishment must be CERTAIN, SWIFT, and just SEVERE enough to make
offenders realize that committing crime is not worth it. The problem is that our criminal justice system is not
certain. Plenty of people commit crime and do not get caught. People are not always certainly going to be
punished in a court of law. Our system is also not swift. It can take months or years before someone may be
convicted. The only thing our system has been able to adjust is the severity of punishment such as passing laws
about mandatory minimums, three strikes laws, tougher sentences for drugs, DUI’s, etc., but the research tells us
that simply adjusting the severity is not working. Deterrence will not work until our system is all three: certain,
swift, and severe.

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 Deterrence
• Two main types of deterrence
– 1. Specific Deterrence: Punishment for a specific individual to prevent
that one person from wanting to commit future crime. An example
would be to sentence an offender to 15 years in prison so that when
they get out of prison, they don’t want to do it again.
– 2. General Deterrence: Punishment that is meant to dissuade the
public from wanting to commit crime. The general public sees
someone getting a harsh punishment and that is meant to prevent them
from doing it. Another example is the DUI Billboards in Illinois that warn
or threaten the public of the consequences of a DUI. This is a form a
general deterrence.
– See p. 52 to see if deterrence works or not for certain types of
offenders.

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 Rehabilitation

• The core idea was that the corrections

system could engage inmates in activities
including work, education, religion,
counseling, and other therapeutic
interventions that could supposedly
transform offenders into law-abiding
citizens.

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 Rehabilitation
• The concept of rehabilitation advanced most rapidly with juvenile
offenders, who were thought to be more amenable to reform.
– The jurisprudence of the juvenile court was based on rehabilitation.
– In adult corrections, rehabilitation was based more on rhetoric than on
actual practices, where only minimal investments were made in
education and counseling programs.
– Research on rehabilitation says it can be effective at reducing
recidivism for juveniles and adults. It is best used in the community,
targeting those top 3 criminogenic needs. Research tells us the best
type of rehabilitation for offenders is cognitive-behavioral treatment. If
we do the right type of rehabilitation, it can reduce recidivism by as
much as 30%. Using the wrong rehabilitation programs does not
reduce crime.

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 Incapacitation

• The incapacitation theory of punishment suggests that

the principal goal of the penal system is to separate
offenders from the community.

• Incapacitation rests on the assumption that a small

number of offenders commit the vast majority of serious
crimes.

• The idea of incapacitation rests on the assumption that

there are a very small number of “high rate” offenders.
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 Incapacitation
• Research on incapacitation says it does work to reduce crime, up to
a point. Incarcerating offenders and removing them from society so
they do not have the opportunity to commit crime does work. The
ideal incarceration rate is about 360 people per 100,000. The U.S. is
at 716 per 1000,000 (Figure 1.1, p.7). So we are incarcerating way
more people than necessary to reduce crime.
• Incarceration is also incredibly expensive compared to supervision in
the community. If we were to reduce our incarceration rate to closer
to the ideal number, the U.S. could save billions per year by
supervising some offenders in the community rather than jails or
prisons and there would be only minor increases in crime.

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 Theories of Restorative Justice and
Re-Integrative Shaming
• Other theories of punishment such as restorative justice and re-
integrative shaming shift the focus onto transforming the harm done
to victims and to the community and leaving them more committed
and integrated than before.

• These theories propose that justice is best served when an offender

is confronted by community peers and agrees to make restitution
and perform a service to the community.
• Research is limited on restorative justice as it is a newer philosophy.
It is perhaps best used on younger offenders or property offenders,
and not on career criminals or violent offenders.

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 Age Crime Curve

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 Age Crime Curve
• This info is not in the book, but very important. The best predictor of who is committing crime in the
U.S. is AGE. It’s not race, gender, income, or where you live. There is minimal offending until the
age of about 10-12, then a drastic increase, with offending peaking at age 16-18, and then a gradual
decline. There are very few offenders under the age of 10 or over the age 50.
• Research has also found that this spike in crime based on age is due to most juveniles
“experimenting”, “rebelling”, etc. Most of us committed some type of crime when we were younger
(drugs, alcohol, theft, property crimes, fights etc.), but then we stop offending. Usually we stop due to
maturing, going to college, getting married, getting jobs, etc. and committing crime as adults is not
worth the consequences.
• Research has also found in the age-crime curve that when looking at the overall total amount of
crime, only a small percentage of people commit the a majority of crime. They tend to start early in
life (under age 14) and continue offending into adulthood when most of us stop. Multiple studies have
found that about 6% of offenders commit almost 50% of all the crime in the U.S. This tell us that if we
could figure out which offenders are part of this 6% and we target them in the criminal justice system,
we could potentially reduce crime by as much as 50%. While no one in the criminal justice system
has come up with an accurate, reliable way to identify these 6% of offenders (without making
mistakes), we are getting better with the use of risk assessments and looking at patterns of offending.

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Contemporary Movements in Sentencing Laws and Policies

• Most of the modern American sentencing

system was established during the first
part of the 20th century.

• This structure and process of sentencing

was largely unchanged for over 75 years.

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Contemporary Movements in Sentencing Laws and Policies

• In the 1980s, the political fad was “mandatory”

incarceration--a guaranteed sentence to prison.
Mandatory minimums were most frequently used for
drug offenses.
• In California, the buzzwords were “Use a Gun, Go to
Prison.”
• The inflammatory rhetoric connected to the “War on
Drugs” encouraged many legislators to embrace
mandatory incarceration for even minor possession of
controlled substances, including marijuana.
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 Contemporary Movements in
Sentencing Laws and Policies
• These sentencing reforms fundamentally
changed the practice of sentencing in
indeterminate sentencing states and altered the
impact of sentencing commissions.
– Mandatory minimums curtailed the ability of
judges to consider traditional mitigating
factors.

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 Contemporary Movements in
Sentencing Laws and Policies
• The response to these practices was a series of laws known
under the generic name of “truth in sentencing.” Truth in
sentencing for certain offenses reduced the ability to earn
good time and ensured offenders served a good majority of
their sentence. Typically at least 85% of their sentence.
• A number of judges had a different response to legislative
decriminalization.
• They proposed the establishment of “drug courts” to provide
intensive supervision and services to some individuals in
lieu of imprisonment.

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 Contemporary Movements in
Sentencing Laws and Policies
• Review Three Strikes Laws on p. 62
• Review Fair Sentencing Act of 2010 on p. 65. The Fair Sentencing Act tried to correct the disparity in
mandatory minimums that were created for the “War On Drugs.” The act primarily changed how we
sentence for crack cocaine. In the past, 5 grams of crack cocaine (which could fit in the palm of your
hand) triggered a mandatory 5 year prison sentence. It took 500 grams of powder cocaine to get the
same five year mandatory prison sentence. So a ratio of 100:1 for power cocaine to crack cocaine.
Someone could have 100 grams of heroin or 100 kilos of marijuana to get the same 5 year sentence.
• The main reasons crack cocaine had a tougher punishment was in the 1980’s and 1990’s, crack cocaine
was associated with extensive drug dealing, gun offenses, and homicides. Our law makers were trying
to target the drug associated with these offenses. Unfortunately, this had the consequences of primarily
inner-city minorities dealing small amounts of crack cocaine going to prison for lengthy periods, whereas
the people who used powder cocaine, primarily middle to upper class Caucasians could have a lot more
of the drug before going to prison.
• The Fair Sentencing Act tried to resolve this disparity and reduced the ratio to 18:1. It now takes 28
grams of crack cocaine to trigger the five year prison sentence and powder cocaine remains at 500
grams.
• Amazing how we now have the opioid crisis and 100 grams of heroin triggers the five year sentence and
you can have 4x the amount of heroin vs. crack cocaine under this law.

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 Fair Sentencing Act 2010
• Anti-Drug Abuse Act of 1986
• 5 year mandatory prison sentence for: • 5 year mandatory prison sentence for:
• 5 grams crack cocaine • 28 grams crack cocaine
• 500 grams powder cocaine • All the rest the same
• 100 grams heroin
• 100 kilos (220 pounds) of marijuana • 10 year mandatory prison sentence for:
• 280 grams crack cocaine
• 10 year mandatory prison sentence for: • All the rest the same
• 50 grams crack cocaine
• 5 kilos (11 pounds) of powder cocaine
• 1 kilo of heroin
• 1000 kilos (2200 pounds) of marijuana

• Fair Sentence Act of 2010

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