| Chapter 14
Covering Sentencing
By Ted Gest
Introduction
“The maximum sentence: 100 years in prison without parole.” That phrase in a recent news story about a murder case illustrates one major issue in reporting on criminal sentencing. While the phrase may be technically accurate, it reflects the view of a prosecutor, who may want to convey to the public the most serious possible description of a crime.
But the description is fundamentally misleading, because no one will serve 100 years behind bars, and almost no defendants receive the maximum penalty in any case.
One result of exposure to scores of such references in news stories over the years is that the public may develop a jaundiced view of the justice system, believing that lawbreakers rarely receive the sanctions they deserve.
To report in proper context, journalists should understand how sentencing practices in the United States have evolved and how they actually work in today’s crowded court systems.
Understanding the Sentencing Process
There is no national system of sentencing. The federal government and each state maintain their own rules, and criminal courts may operate very differently depending on where they are. Defendants accused of identical crimes in neighboring states may end up with vastly different penalties because of varying state laws and prosecutorial practices. This chapter provides an overall view of sentencing in the U.S., but journalists must familiarize themselves with the laws of their state or jurisdiction.
Reporters should keep in mind that the criminal justice system “is nothing more than the sum total of discretionary decisions by innumerable officials,” as criminologist Samuel Walker of the University of Nebraska at Omaha puts it. From police officers to prosecutors to judges to corrections department officials, government authorities have considerable leeway in deciding how to treat those suspected of committing crimes.
Journalists should be aware that the sentencing stage is only one step in a long series of decision points in the justice process, and what a judge may say in court rarely is the final word on a defendant’s fate.
From Fixed to Flexible Penalties
In the nation’s early history, crimes tended to be associated with specific penalties fixed by law.In 1870, the National Prison Association (now the American Correctional Association, www.aca.org) concluded that the practice did not give convicts much incentive to improve. The concept of indeterminate sentences is usually credited to Zebulon Brockway, a prison warden in New York State and later Detroit, who was a pioneer in inmate rehabilitation.
The prison association declared that “preemptory sentences ought to be replaced by those of indeterminate length.” Under this concept, which became common nationwide over the ensuing century, a parole board typically would decide on the actual length of time served behind bars depending on “its judgment of whether the prisoner had been reformed or cured or had simply served enough time,” according to a historical accountprepared for the U.S. Department of Justice in 1996. “Under indeterminate sentencing, the sentence was individualized so that the punishment fit the criminal rather than the crime.”
A robber, for example, might be eligible under an indeterminate sentencing law for any prison sentence between five and 20 years, and might actually receive a sentence of five to eight years. A parole board or some other correctional authority would decide on that convict’s actual release date based on several factors, primarily his behavior record and presumed fitness to live successfully on the outside.
Indeterminate sentencing was widely used during an era when prison populations were relatively low. The national total was under 100,000 in the 1960s, less than one-tenth of what it grew to in the four decades that followed. With crime largely out of the national spotlight, indeterminate sentencing and parole were “part of the process of making criminal justice better suited to the individual case,” wrote historian Lawrence M. Friedman in Crime and Punishment in American History. (*see Appendix C for details.)
When crime rates started to rise sharply in the 1960s, policy makers began to look for reasons for the increase and for ways to control crime. The criticism spanned the ideological spectrum.
One of the many apparent culprits was sentencing. Analysts cited widespread disparities among penalties, a lack of predictability into what sanctions defendants would get, and disparities in how much time behind bars would be served
When a chronic offender was re-arrested, critics tended to blame the officials who released him and the laws that authorized them to do so.
Another line of attack came from experts like federal judge Marvin Frankel, whose 1972 book, Criminal Sentences: Law Without Order (*see Appendix C) argued that it was unjust to put all sentencing power over a defendant into the hands of one judge. One big-city jurist recalls that when he and his colleagues attending a retreat were given details of a hypothetical case and were asked what sentence they would impose, the answers ranged from probation to a long prison term. Clearly, there was an inequity problem.
As a result of these and other criticisms, the U.S. “underwent a wholesale shift in sentencing philosophy” in the 1970s, says sentencing scholar Sandra Shane-DuBow, former director of Wisconsin’s state sentencing commission.
The new ways of sentencing in America took many different forms. More than a dozen states moved to “determinate” sentencing laws that specified penalties for certain offenses. Most states went further by adopting “mandatory minimum” sentences for some offenses, meaning that a defendant was required to serve at least a certain amount of time behind bars before release. This was intended to eliminate sanctions that were too lenient.
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