Criminal Sentencing and Punishment
Authored By: Carl Vinson Institute
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Criminal Sentencing and Punishment
This document tells you the following:
- What is a presentence investigation?
- What options does a judge have for sentencing a convicted defendant?
- What is incarceration?
- What is probation?
- What happens if you are sentenced to community service?
- What are fines?
- What is restitution?
- What is a split sentence?
- What is special alternative incarceration?
- What is the difference between definite and indefinite sentencing?
- What are the four basic purposes of sentencing?
PRESENTENCE INVESTIGATION AND HEARING
In Georgia, presentence investigations are conducted by the probation officers of the Georgia Department of Corrections. Each superior court has probation officers. Besides conducting presentence investigations, these officers supervise all persons who are put on probation by the court.
In the presentence investigation, a probation officer compiles data on the defendant's background. This information includes any previous criminal record, plus facts about employment, education, social contacts, and community ties. The judge uses this information in deciding the sentence. In cases involving physical, psychological, or economic injury to the victim, the probation officer may tell the court what impact the crime had on the victim. During the hearing, the judge also listens to both the defense and prosecution presentations concerning the defendant's good and bad qualities.
The defense attorney seeks to minimize the defendant's sentence. He or she will try to downplay the role of the defendant in the crime or highlight the weaknesses in the evidence at trial. The defense attorney may also explain how the defendant's problems in life contributed to the defendant's state of mind, which caused him or her to commit the crime.
The defense attorney will also point out the lack of a criminal record on the part of the defendant (assuming that is the case) and perhaps discuss the defendant's level of cooperation in the case. The defense lawyer points out any factors that would tend to mitigate the sentence (that is, make the sentence lighter than usual). On the other hand, the prosecutor stresses the impact of the crime. He or she will call the judge's attention to any "aggravating circumstances," which could make the sentence more severe.
To see how this process works, look at the facts from the presentence investigation reports on Daisy and Harry in the table below. What facts might the prosecutor stress? What facts might each defense attorney stress?
When this hearing is over, the judge may immediately issue a sentence, or he or she may postpone sentencing in order to consider the information that has been gathered.
In deciding a sentence, a judge has various options, depending on the defendant's crime and its circumstances. The judge may also be influenced by the defendant's age and criminal history. A judge's options are as follows:
Incarceration. To be incarcerated means to be put into jail or prison. A judge may order a jail or prison term within the limits fixed by law for the particular crime.
If a person is convicted of a misdemeanor, his or her time may be spent in a county (or city) jail or a county prison camp. Jails are designed to hold people who are either awaiting trial or who have been sentenced for 12 months or less. Most people who are convicted of less serious offenses spend time in jail.
Generally, people who are incarcerated for felony crimes and receive sentences of one year or more are sent to state prison rather than jail. Prisons are des-igned for long-term incarceration. However, sometimes felons spend time in jail while waiting to be transferred to prison.
For most felony crimes, the penalties will be a range of years in prison. The specific term is decided upon by the judge, who considers the circumstances surrounding the crime and the background of the defendant. For instance, if the sentence for burglary in Georgia is anywhere from 1 to 20 years, a person convicted for the second time on burglary charges could receive a minimum two-year sentence rather than a minimum one-year sentence. For a third burglary conviction, a person may face a minimum five-year sentence. The maximum sentence for all burglaries is 20 years. The judge decides an appropriate sentence within the ranges provided by the statute for each crime committed.
Probation. The judge may put defendants on probation instead of sending them to prison. Probation can be defined as a treatment program. Defendants do remain free from incarceration, but they must follow the conditions imposed on their freedom by the court. These conditions are either "general" or "special."
General conditions of probation are those that are required in every case. They include the following:
- not violating any law;
- avoiding injurious and vicious habits;
- avoiding persons and places of disreputable or harmful character;
- reporting to the probation officer as directed;
- working faithfully at suitable employment; and
- not changing one's present place of abode, not moving outside the jurisdiction of the court, or leaving the state for any period without prior permission of the probation officer.
On the other hand, special conditions relate to the case itself. For example, in a simple battery or stalking case, a special condition might be no contact with the victim. Performing community service would be a special condition. In a drug case, the court might order drug treatment as a special condition. If the victim suffered damages (for example, a broken window), restitution might be ordered.
A special condition is any condition that is not required in every case. Imposing a special condition allows a judge to impose conditions that more closely pertain to the specific charge.
People on probation are supervised by and must meet regularly with probation officers, usually once a month. Probation officers are responsible for making sure that defendants comply with the conditions of their probation. In addition, they try to help the defendants they supervise. The probation officer may involve the defendant in group therapy sessions, or the officer may help the defendant get a job. Persons on probation are expected to be employed and to pay a monthly fee to the probation officer when circumstances allow. The probation officer may also counsel the defendant about how to avoid further run-ins with the criminal justice system.
Georgia has several special probation programs. One is "intensive probation," in which probationers are closely monitored. Intensive probation usually requires an evening curfew and frequent visits to the probation officer. Other special probation programs include house arrest, electronic surveillance, or day work programs. The term of probation is established by the court in accordance with the law.
If the conditions of probation are violated, the court may revoke (or take back) the probation. The court will hold a hearing to determine if the person did in fact violate the probation. If the judge finds a violation of probation, he or she may revoke some or all of the probationary period. The judge can then send the person to jail or prison or impose alternative punishment. Other possible sentences include enrollment in a residential drug rehabilitation program or attendance at a probation detention center or diversion center where the person will work to pay off fines and restitution.
There are two ways to violate probation:
technical violation-occurs when a defendant has either failed to pay the monthly fee or to perform the assigned community service or has violated a special or general condition of probation. Commonly, a technical violation results when a defendant has not reported to the probation officer as required.
substantive violation-occurs when the defendant commits another criminal offense.
Community service. This option is becoming increasingly popular with the courts. Rather than incarcerating offenders, the judge can require them to provide some form of community service in the city or county in which they live or were convicted. The service is usually arranged through the probation department, and it can be any service the judge orders. Community service might be typing at a pub-licly funded work center or clean-up work around the jail or courthouse. The laws pertaining to driving under the influence of intoxicants (DUI) specifically require performance of community service upon conviction.
Fines. A fine is a cash payment to the court. The use of fines as a penalty for committing an offense has been commonplace for centuries. Fines are charged for many offenses, particularly traffic violations, misdemeanors, and drug related crimes. For misdemeanors, the person usually pays a fine instead of serving a jail or prison sentence. For felonies, such as drug cases, the offender is often heavily fined in addition to serving a prison term or being subject to other conditions of probation if the defendant is sentenced to probation instead of to a prison term.
Restitution. Restitution means paying the victim for damages. Restitution may be made by returning the amount of money or property stolen. In the case of injury, restitution is made by paying the victim for the cost of medical treatment. In the case of damage to property, restitution is made by paying for necessary repairs or replacement of the property.
Imprisonment and probation. The judge may sentence the defendant to serve part of the sentence in jail or prison and the remainder on probation. This type of sentence is called a split -sentence.
Special programs. The problem of overcrowded prisons has prompted courts to consider alternatives to incarceration. Georgia is recognized as a leader in this area. It has a program called special alternative incarceration, a 60- to 120-day program of strict discipline and regimen often imposed on first offenders or those who have light criminal records. It is intended to discourage those sentenced to the program to become repeat offenders. Informally, it is referred to as a prison "boot camp."
Definite versus Indefinite Sentencing
Except for death penalty cases tried by a jury, the judge decides the nature and length of sentence within the ranges set by law, referred to as indefinite sentencing. Some people feel that such flexibility leads to unfair sentencing practices. Sometimes-for almost identical crimes and circumstances-one judge will give a minimum sentence. Another will give a maximum sentence.
The law allows a sentence of 1 to 20 years for the crime of robbery.This type of unfairness can result when the statute providing the penalty for the crime establishes a range of punishment, resulting in indefinite sentencing.
To avoid unfairness in sentencing, some state legislatures favor a system of definite, predetermined sentences for every crime. The circumstances of the crime would not matter. Everyone would receive the same sentence for committing the same type of crime.
Judges argue that a definite sentence system is too inflexible. For many crimes, the only reasonable alternative to prison that judges can impose is probation. Judges contend that definite (prison) sentences would force them to award probation in cases in which they felt the definite sentence was too harsh. Probation, however, might be too lenient for the crime and circumstances.
Purposes of Sentencing
Before sentencing, the judge must know the background of the convicted defendant and the range of punishment the law allows for the crime. If the defendant is convicted of more than one crime, then the judge must also decide whether the sentences should run concurrently (at the same time) or consecutively (one after the other).
Underlying these laws and decisions is a philosophical question: Why do we punish people for their crimes? There are four basic purposes of punishment:
1. Retribution-Essentially, to seek revenge. It is best expressed by the biblical Old Testament concept of "an eye for an eye and a tooth for a tooth."
2. Deterrence-To discourage persons from committing crimes.
3. Rehabilitation-To help criminals change their behavior; to help them become responsible citizens.
4. Incapacitation-To protect society from dangerous, lawbreaking persons.
All criminal sentences are based on one or more of these purposes.
CASE OF THE CENTRAL CITY DRUG BUST, concluded
If Harry and Daisy are found not guilty, they would be released. If they are found guilty, they would be sentenced. In determining the sentence, a judge considers
- each defendant's past, as revealed in the presentence reports,
- the possible punishments for the crimes,
- whether the sentences should run concurrently or consecutively, and
- the purposes of punishment.
Often, the task of sentencing someone is very difficult.
*Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.