| Chapter 14
Covering Sentencing
By Ted Gest
The Role of the Victim
The playing field has been changed drastically in some cases because of a growing victim-rights movement dating from the 1980s. Historically, a criminal case centered on a defendant, his culpability and penalty. Crime victims argued that they had been left out of the equation. They successfully lobbied for laws guaranteeing them a role in the process.
Now, in all 50 states and at the federal level, crime victims have the statutory right to submit victim impact statements (VIS) at sentencing. This can include presentations to the court in person; in writing; or on audiotape or videotape.
Such statements be powerful in violent crimes. In the case of homicides, the courtroom at sentencing can be turned into a virtual memorial service for the victim. The impact varies from case to case. In places with sentencing guidelines that largely control the result, judges may regard such testimony as “theater” that has little impact on the penalty. In some cases, however, victim-impact evidence can influence a judge to impose a tougher penalty.
Victims' rights provisions often are included as part of the sentence. In all states, victims have the right to be notified about the status and location of the offender. While
statutes vary, the court may provide protective orders (also called "stay-away orders") that prevent convicted offenders from being in contact with victims. In all states, the prosecutor can request that the offender pay financial obligations to the victim (including restitution and child support), which can be included in the sentence.
Non-Prison Sentences
An increasingly popular sentencing option is known as a deferred prosecution. As part of a plea bargain, a defendant may agree that if he or she avoids any legal trouble for a specified period, the case will be dropped. One advantage of this arrangement is that the defendant will have no criminal record if the case is never pursued, giving him a greater chance to obtain a job. This procedure sometimes is known as a “diversion,” and often includes court-ordered treatment programs. This is different from probation, which would remain on a person’s criminal record.
Most such non-prison sentences are administered by specialized courts that have sprouted up nationwide. Most common are drug treatment courts, which started in Miami in the late 1980s and now are operating or planned in over 2,000 jurisdictions. New York City started a “community court” in the early 1990s that hears local non-violent cases like loitering, graffiti-posting, and subway fare jumping. Also proliferating are “mental health courts” to hear cases linked to mental illness.
Prison for Most Felons
Under today’s tougher sentencing laws, a majority of convicted felons go to
prison. In 2004, the most recent year for which data were available from the U.S. Bureau of Justice Statistics, 70 percent got a sentence of incarceration. Overall, 40 percent of those defendants went to state prisons and 30 percent to local jails, which generally house people sentenced to one year or less.
(see http://www.ojp.usdoj.gov/bjs/sent.htm)
Nearly 30 percent were put on probation with no prison or jail time. Only two
percent got sentences that included no time behind bars or probation but rather some
combination of fines, restitution to victims, community service, house arrest,
or periodic drug testing.
Even when a defendant is put on probation, the judge typically imposes a sentence and then “suspends” it for a certain period. That is a notice to the defendant that if he commits a new crime or merely fails to appear for a drug test or an appointment with a probation officer, his probation may be revoked and he can be sent to prison or jail.
Again, journalists should be alert to the intent of a judge, who may announce a sentence of, say, five years in prison, only to suspend it and impose probation.
Truth in Sentencing
Convicts rarely are expected to serve their maximum sentences (for example, six years on an initial sentence of four to six years) That is because of several important factors, such as “good time” and parole. Under good time (sometimes called “earned time”), an inmate’s total sentence length is reduced for each month of good behavior in prison. The availability of good time gives inmates some incentive to behave.
Traditionally, good time has amounted to about 15 percent of a defendant’s stated term, or roughly one day per week. That percentage figures in a concept that gained prominence starting in the 1980s called “truth in sentencing.” Taking credit for that phrase were then-junior Republicans in the U.S. House of Representatives, Newt Gingrich of Georgia and Dan Lungren of California, who complained that the public often heard about a lengthy-sounding sentence number only to learn later that the defendant had been set free by a parole board long before that time had elapsed. The Republicans insisted on putting “truth in sentencing” into federal law, thus eliminating parole, when they negotiated the 1984 federal crime bill that established the U.S. Sentencing Commission.
Federal practices in criminal justice often influence the states, but “truth in sentencing” didn’t spread quickly. Only five states had embraced it by 1993. The next year, in another omnibus federal crime law, Congress decided to tie federal aid for building state prisons to a requirement that states must pass “truth in sentencing” laws to be eligible. Within five years, 22 more states adopted the 85 percent rule. The infusion of federal aid encouraged another burst of prison construction, which is one reason prison populations continued rising in the 1990s while crime total declined. The increase in prison population had a definite but limited impact in reducing crime, say experts like William Spelman of the University of Texas.
Probation-Parole Differences
The practices of probation and parole are frequently misunderstood both by journalists and the public. Both terms refer to supervised release of convicts outside of prison. Probation normally is granted by judges in lieuof prison; parole is granted by a parole board and occurs after release from prison. A “split sentence,” however, may include probation that follows time behind bars. Probation and parole operations will be discussed in more detail in Part Three of this handbook.
Both probationers and parolees are given a set of conditions, for example reporting to an officer on a set schedule, finding a job, enrolling in an educational program, or undergoing drug tests.
Under parole, the corrections system or a separate paroling authorityis given the authority to release inmates to community supervision. Traditionally, an inmate becomes eligible to apply for parole release after serving a specified portion of the sentence. Parole boards may approve a release after examination of various risk factors, including an inmate’s behavior record in custody and prospects for employment, housing, and family assistance outside the prison.
A few states, such as Florida, Illinois, and Virginia, abolished parole in the last two decades, usually opting for systems that eliminated discretionary releases of inmates.
Be aware that the word “parole” often is used to connote two entirely different procedures: a discretionary release from prison, and supervision in the community after prison. States that acted to abolish parole may have been motivated to assure “truth in sentencing.” Critics contend that to accomplish that goal, some states also shortsightedly eliminated the post-release supervision aspect.Convicts who are released without supervision and services are more prone to return to crime.
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