Critical Issues in the American Criminal Justice System – Sentencing Decisions and the Death Penalty

This paper discusses three critical issues in the criminal justice system. It touches on the general issues of punishment philosophies, sentence decision making, and prison overcrowding and focused more specifically on the negative effects of each. Highlighted in this informational paper is the interrelated nature of the issues; each issue affects and is affected by the others.Data and information has been gathered from the FBI Uniform Crime Report, the Bureau of Justice Statistics, Amnesty International, the NAACP Legal Defense Fund, and other scholarly works. Amongst the information given here are the detrimental effects of under-funding in the correctional system, the link between overcrowding and recidivism, the relationship between overcrowding and inmate violence, the ancient and moral foundation of many punishment philosophies, and the shocking number of crimes committed each year.Be forewarned that this paper focuses on the negative aspects and offers nothing in the way of a solution to these critical issues. Crime is an issue that every country must deal with on a daily basis and here in the United States of America that is especially true. According to the FBI Uniform Crime Reports, the U. S. had more than 11 million crimes committed in 2008 (Federal Bureau of Investigation [FBI], U. S. Department of Justice – Table 1, 2009); this is a far greater number of crimes than that of any other country in the world. When looking at prison statistics, the U. S. lso ranks highest in both total prison population and prisoners per capita. The U. S. Department of Justice reported that over 2. 3 million people were being held in custody in state or federal prisons or local jails (Bureau of Justice Statistics [BJS], U. S. Department of Justice, Office of Justice Programs – Table 15, 2009). One can easily conclude, by simply browsing this data that something must be done to lower these crime rates, reduce our prison population, and deter future crime. This paper will discuss the various philosophies of punishment, the various types of sentences meted out, and the over-crowding of our prisons.The United States criminal justice system relies on a variety of sentencing types and bases these sentences on several philosophies of punishment. For a person to understand the sentences meted out or for a judge to make a decision on how to sentence an offender, the philosophies behind punishment must first be studied. These philosophies of retribution, incapacitation, deterrence, rehabilitation, and reintegration vary greatly in where their focus lies and in what the reasoning behind the punishment should be (Territo, Halsted, & Bromley, 2004).Retribution is the philosophy with the oldest roots, dating back to the early Babylonian and Hebrew civilizations. The basis for retribution lies in revenge, “an eye for an eye, a tooth for a tooth”. “This philosophy can be traced back to ancient Babylonia in the Code of Hammurabi, one of the oldest written codifications of laws ever discovered” (Neubauer & Fradella, 2008, p. 372). This was later used in the Old Testament in the books of Exodus and Leviticus by the Hebrews. Retribution is focused primarily on past behavior and the idea that the punishment should fit the crime.The concept holds that an offender held no regard for the rights of other and should be held accountable for their actions. This concept focuses on crimes of a violent nature and is difficult to apply to crimes against property (Neubauer & Fradella, 2008). Deterrence is used in hopes of preventing future crime. This theory was developed in the 19th century by Jeremy Bentham and based on the 18th century work of Cesare Beccaria. Bentham argued that it was against society’s best interests to punish offenders based on retribution. He believed that “people seek to maximize pleasure and minimize pain” (Neubauer & Fradella, 2008, p. 75) and by using this hedonistic calculus people will refrain from committing crimes. This concept focuses on the punishment fitting the criminal and on preventing future crimes from occurring. The three most important factors in effectively deterring a criminal from further crimes are the severity of the punishment, the certainty of the punishment, and the swiftness of the punishment. If criminal doesn’t believe he will be punished or he feels the punishment is minor in comparison to the crime or if the punishment is not swift enough, then he/she will not be deterred from committing crimes.Studies on the effectiveness of deterrence have shown to be inconclusive. The deficient areas of deterrence are crimes committed in the heat of passions, crimes committed under the influence of drugs or alcohol, and the massive backlog of cases in the nation’s courts (Neubauer & Fradella, 2008). Incapacitation, the removal of the offender from society to prevent them from harming society further, has been in use since ancient times. The incapacitation may be in the form of exile, penal colonies, prison, or placement in a mental institution.Regardless of the form, incapacitation places its focus on the future behavior of the offender and on the characteristics of the offender. It assumes that since that majority of crime is committed by a small number of criminals, removing them from society will reduce crime. What this theory does not take in to account is the limited space available in the prison system, if incapacitation was used as the sole method of sentencing numerous new prisons would have to be built to house the additional inmates.Another fault of the incapacitation theory is that the removal of the offender is only temporary and eventually the offender will be released back into society (Neubauer & Fradella, 2008). The philosophy of rehabilitation as a form of punishment focuses on the criminal, more specifically on treating the psychological and social disorders that affect the criminal and potentially influenced the criminal behavior. While many people support this concept of rehabilitating the offender and helping them become a productive member of society, others believe that the offenders are escaping punishment.Studies have varied on the effectiveness of rehabilitation as widely as the various types of rehabilitation programs offered. Gradually the ineffective programs have and are being removed and the focus is being placed on the more effective ones. Perhaps the many reasons rehabilitation is so popular is that from an economic stand-point, it is far more economical to rehabilitate a person that it is to incarcerate them. The problem with concept is how one determines if the offender has been rehabilitated (Neubauer & Fradella, 2008).Deterrence is used in hopes of preventing future crime. This theory was developed in the 19th century by Jeremy Bentham and based on the 18th century work of Cesare Beccaria. Bentham argued that it was against society’s best interests to punish offenders based on retribution. He believed that “people seek to maximize pleasure and minimize pain” (Neubauer & Fradella, 2008, p. 375) and by using this hedonistic calculus people will refrain from committing crimes. This concept focuses on the punishment fitting the criminal and on preventing future crimes from occurring.The three most important factors in effectively deterring a criminal from further crimes are the severity of the punishment, the certainty of the punishment, and the swiftness of the punishment. If the criminal does not believe he will be punished, or he feels the punishment is minor in comparison to the crime, or if the punishment is not swift enough, then he/she will not be deterred from committing crimes. Studies on the effectiveness of deterrence have shown to be inconclusive.The deficient areas of deterrence are crimes committed in the heat of passions, crimes committed under the influence of drugs or alcohol, and the massive backlog of cases in the nation’s courts (Neubauer & Fradella, 2008). The theory of reintegration is the newest philosophy of punishment developed for the correctional system. This concept is similar to that of rehabilitation in that it focuses on the offender; however, in addition to treating the mental or social disorder of the offender, reintegration places an emphasis on why the offender failed to integrate in to society and how to remedy this issue.After the offender is released from prison, the criminal justice system places them in a halfway house and/or assigns them a social service agency to assist with their reintegration in to society. The association with positive aspects of society is believed to be the most important part in the treatment of the offender. As with many of the other philosophies of punishment, reintegration fails in large part to the over-crowding of the prison system (Territo, Halsted, & Bromley, 2004).The people and groups responsible for deciding the sentence of the guilty offender are as varied as the philosophies of punishment and the types of sentencing available. State and federal legislatures are responsible for creating the laws and determining the terms of imprisonment for the various charges. Judges are the only ones with the authority to decide upon the actual sentence within the options created by the legislature. The final group responsible for deciding sentencing is the executive branch. This group consists of the president of the United States, state governors, correctional officials, and parole boards.Parole boards are appointed by state governors and have the discretionary power to grant an inmate release from prison on parole after a portion of the sentence has been served. Correctional officials have the discretionary ability to reward inmates with “good time”, allowing an early release from prison due to good behavior. Finally the president and the state governors have the power to reduce sentences, make a prisoner eligible for parole, and/or grant the inmate a pardon, a full release from prison (Neubauer & Fradella, 2008). The sentencing options available to the court system are quite varied in their nature.In the past sentencing options included exile, firing squads, flogging, the stocks, hanging, chopping off the hand, and beheadings. For obvious reasons, these options were rule to be violations of one’s Constitutional right against cruel and unusual punishment. In today’s court system the judge has the option of meting out punishment in the form of prison, probation, fines, restitution, intermediate sanctions, and capital punishment (Neubauer & Fradella, 2008). The options range from the ultra-severe death penalty to the pathetically weak “slap-on-the-wrist”. Incarceration is the main form of punishment in the U.S. , with more than 2. 3 million inmates currently housed in prisons and jails” (Neubauer & Fradella, 2008, p. 382). Offenders convicted of felonies are sent to state prisons, while those who are sentenced to less than one year serve out their sentence in county jails. The average yearly cost of housing an inmate varies by state and by the level of secure confinement needed for the prisoner, but on average the government spends between $20,000 and $30,000 per inmate every year; with the exception of the death penalty, incarceration is the most expensive form of punishment for the government.Another issue with incarceration is the problem of over-crowding, where the national operating average for prisons is 113% of capacity (Neubauer & Fradella, 2008). In addition to the large prison population, the criminal justice system has more than 800,000 adults that are out on parole; this does create room in the prisons, but it also creates more costs for the system (BJS, 2009). The most common form of sentencing used, the main alternative to incarceration, is probation. According to the Bureau of Justice Statistics, there were more than 4. 2 million adults on probation in 2008 (BJS, 2009).Probation allows for the criminal justice system to maintain control over an offender while allowing them live and work in the community. This form of sanction is used primarily for juvenile and first-time offenders, as a means to both punish and deter them from future crimes. Probation also serves to help alleviate prison over-crowding and is far cheap than housing a prisoner. In general, probation is allowed “when it appears that (1. ) the defendant is not likely to commit another offense, (2. ) the public interest does not require that the defendant receive the penalty provided for the offense, and (3. the rehabilitation of the defendant does not require that he or she receive the penalty provided for the offense” (Neubauer & Fradella, 2008, p. 387). Once placed on probation, the offender must abide by the rules and regulation given by the court and any violation of these rules can result in a violation of the probation. Often the offender will be required to consult with a probation officer periodically (Neubauer & Fradella, 2008). Another commonly used sanction is a fine, one of oldest forms of punishment. In many countries, fines are the preferred method of sanction for many offenses.Germany for example, uses “day fines” instead of jail time to minimize jail terms of less than six months. These fines are on a sort of sliding scale based on the severity of the offense and the offender’s financial means. In the U. S. , fines are used mainly for ordinance violations and traffic offenses. According to data, “judges in the lower courts impose a fine alone or in combination with other sanctions in about 86% of their cases. In major trial courts, a fine, either alone or together with other sanctions, is imposed in almost 45% of the cases” (Neubauer & Fradella, 2008, p. 88). The main issue with fines being used as sanctions is poverty, making it difficult for the courts to collect; however, research has shown that fines can be collected if collection and enforcement techniques are applied (Neubauer & Fradella, 2008). Similar to fines, another sanction used by the courts is restitution. Restitution requires the offender to compensate victims for their loses or for harm done by the crime. This concept has been in use since ancient times, but not until the 1960s did it become a favorite of the criminal justice system.Restitution is made in one of two ways, either in direct restitution or symbolic restitution. Direct restitution involves the offender being required to make monetary payments to the victim, usually as a condition of his or her probation. Symbolic restitution is a form of punishment that requires the offender to complete “community service” work to repay society for the harm they caused. Restitution is normally used only for crimes against property, due to the difficulty of trying to place a monetary value on the harm done by violent crimes. The 1996 Congressional Act requires the federal court to impose mandatory restitution, without consideration of the defendant’s ability to pay. A study of the Government Accountability Office of five major white-collar cases in federal court found that only 7% of court-ordered payments were ever collected” (Neubauer & Fradella, 2008, p. 389). The criminal justice system in response to prison over-crowding and excessive use of probation has developed an alternative means of sentencing called intermediate sanctions. Intermediate sanctions are based on the concept of continuum of sanctions – the range of punishments vary from low control to high control. At one end of the continuum are fines and community service, which reflect low control over the activities of the guilty person; at the other end are punishments like intensive supervision probation and so-called boot camps, which reflect high control just short of the maximum level of control – jail or prison” (Neubauer & Fradella, 2008, p. 389).Symbolic restitutions such as community service fall in to this category of sanctions; in these cases the offender is required to complete a given number of free labor to work off their debt to society. The community service may involve volunteer work at a hospital, picking up trash throughout the community, or some other act of public service. Intensive supervision probation (ISP) requires strict reporting to one’s probation officer; unlike standard probation which may only require a monthly check-in, ISP may require a daily meeting with the probation officer.The boot camp is a type of “shock incarceration” where the offender is sentenced from 30 to 90 days to a strict, paramilitary regimen created to instill discipline and respect for authority (Neubauer & Fradella, 2008). The least common, but most controversial form of punishment is the death penalty. Capital punishment has been in use throughout history and by virtually every society. Here in the U. S. , nearly 200 executions per year were carried out during the years from 1935-36. There was a steady decline in executions from that point until the years 1967-72, when an unofficial ban on executions was in place.From 1976 on, executions have been on the rise, peaking in 1998 at 98 (Neubauer & Fradella, 2008). According to Amnesty International, 95 countries have abolished the death penalty leaving the United States as the only Western democracy still practicing this form of punishment. Opponents of the death penalty argue in immorality of putting an individual to death and that the various means of carrying out the sentence are inhumane and should be considered cruel and unusual punishment (Amnesty International, 2009). In addition to the moral issues involved, the costs of sentencing an offender to death are extraordinarily high.With the cost of the prosecution, the appeals, extra lawyers, paying for the indigent offender’s defense, and years of court proceeding added to the already high cost of housing the inmate, one can easily understand retired California Judge Donald McCartin sentiments when he stated “it’s 10 times more expensive to kill them than to keep them alive” (Neubauer & Fradella, 2008. p. 401). Despite the controversy, the courts continue to sentence offenders to death, “handing out an average of 2300 death sentences each year” (Carlson & Garrett, 2008. . 347). According to a report created by the NAACP Legal Defense and Education Fund, Inc. , as of January 1, 2010 there are a total of 3,261 inmates on death row in the U. S. (NAACP, 2010). The major issue hampering all sentencing decisions is prison over-crowding; as stated previously, there are more than 2. 3 million people being held in custody in state or federal prisons or local jails (BJS, 2009). That averages out to approximately 1 in every 132 people in the U. S. being held in custody. While these numbers seem quite igh, it is only a fraction of the estimated “10 to 15 million persons that pass through jails systems during a calendar year” (Carlson & Garrett, 2008, p. 21). The reason for this large number is that many of the persons that pass through the jail system are held for only a short time. The jail system is used to hold offenders that are serving a sentence of one year or less, to kept pre-trial offenders, in transit prisoners, probation/parole violators, and those being held in protective custody (Carlson & Garrett, 2008). Due to overcrowding in the prison system, many felons are now being held in county jails.Over the last 30 years, the prison and jail populations have experienced an unprecedented growth, but the funding for prisons and jails has not kept pace. It is estimated that “the total cost of building and maintaining a 500-cell prison over 30 years as $425 million” (Neubauer & Fradella, 2008, p. 385). Another area of shortfall in the prison system that can be contributed to the lack of funding is the number of correctional employees; as of 2005 there were 242,387 correctional officers in the U. S. These numbers correlate to an overall 5. 7 to 1 inmate to correctional officer ratio, 10. 3 to 1 in federal prisons (BJS, 2009).The costs involved in prison operation are prison construction, renovations, equipment, clothing, medical and dental expenses, food, utilities, and employee wages among others. “A study based on institutional corrections elements of the Fiscal 2001 Survey of Government Finances which State budget officers reported to the U. S. Census Bureau determined that state-level spending is on prison employee salaries and wages; employer contributions to employee benefits; supplies, contractual services, and other operating costs; and capital expenditures include items such as building construction, renovations, major repairs, and land purchases.Additional data reveals amounts spent on food, inmate medical care, utilities, and contractual services. The average annual operating cost per state inmate in 2001 was $22,650, or $62. 05 per day; among facilities operated by the Federal Bureau of Prisons, it was $22,632 per inmate, or $62. 01 per day. In 2001 the average annual cost for state prisons per U. S. resident was $204, up from $49 in 1986. Prison operations consumed about 77% of state correctional costs in FY 2001. State correctional expenditures increased 145% in 2001 constant dollars from $15. billion in FY 1986 to $38. 2 billion in FY 2001; prison expenditures increased 150% from $11. 7 billion to $29. 5 billion. Spending on medical care for state prisoners totaled $3. 3 billion, or 12% of operating expenditures in 2001. Outlays for new prison construction, renovations, equipment, and other capital account activities amounted to less than 4% of total prison expenditures in most states. ” (BJS, 2009) The effects of prison over-crowding is a problem that is also shared by the inmates.A study in England by David Farrington found there to be a strong relationship between overcrowding and recidivism. In addition to the general overcrowding, the inmates suffer from a lack of adequate educational and treatment programs, increased risk of disease, and an increase in psychological stressors. Just the lack of personal space is often enough to “set-off” an inmate. It is also more difficult to identify mental illnesses in an over-crowded prison, as there is just not enough time, money, or staff to properly evaluate each individual inmate.Money from psychological, recreational, medical, and educational programs is being diverted to purchase additional bedding, food, clothing, and basic security for the excess in inmate population. This lack of activities leads to idleness and as the old saying goes “idle hands are the Devil’s tools”. The over-crowding also leads to a lack of prison work where an inmate might have the chance to gain experience or skills that could be used in their life after release from prison (Haney, 2005).Education and job skills training are key elements in the rehabilitation efforts of the correctional system; however, these programs have been cut to the point of complete ineffectiveness. In 1992, one study showed that about 70% of the prison population was either illiterate or functionally illiterate, many of whom leave and return to prison still lacking in basic skills of literacy. The practice of placing overflow population in jails also has a negative effect on the inmate, as jails are not designed for long-term detention.This creates a lack of basic services, few if any programs, and virtually no meaningful activities (Haney, 2005). In his testimony before the Commission on Safety and Abuse in America’s Prisons, Craig Haney, Professor of Psychology at the University of California at Santa Cruz, stated “Not surprisingly, exposure to “long-term, intense, inescapable crowding” of the sort that now characterizes many prison environments results in high levels of stress that “can lead to physical and psychological impairment. In addition, overcrowding has been associated with higher rates of disciplinary infractions. For example, one study concluded that in prisons “where crowded conditions are chronic rather than temporary… there is a clear association between restrictions on personal space and the occurrence of disciplinary violations” (Haney, 2005). To counter this violence prison officials segregate the unruly inmate, preventing him or her from any social contact with other inmates and from participating in educational, vocational, or recreational activities.This isolation has adverse psychological effects on the inmate, as long-term isolation can affect a person’s adjustment to both the mainline prison environment and to life outside of prison. Prison officials have also resorted to spending available money on increased technology, security measures, and weaponry, while committing to a system of strict, even harsh, policies and procedures in an effort to control the expanding inmate population (Haney, 2005). When stepping back to look at the three issues discussed in this paper, it would be difficult not to see that one issue cannot be solved on its own; each issue is dependent upon the others.One cannot make sound judgments on which punishment philosophy is most appropriate until the problems of prison overcrowding are resolved and sentencing options are more efficient. The overcrowding issues cannot be resolved until punishment philosophies are decided upon and sentencing options become more in tune with policies. Sentencing options will never fit the crime or the criminal until a punishment philosophy is determined, prison overcrowding is resolved, and more programs for rehabilitation, treatment, and reintegration are properly instituted, operated, staffed, and funded.This paper has touched on the general issues of punishment philosophies, sentence decision making, and prison overcrowding and focused more specifically on the negative effects of each. As for solutions to these critical issues, it will take many people – much smarter and more dedicate to reform than this writer – from a variety of disciplines and with open minds, to come together and reform over entire criminal justice system. It cannot and will not be a quick fix; in all reality, it may be a task that will never be accomplished.References Neubauer, D. W. , & Fradella, H. F. (2008). America’s Courts and the Criminal Justice System (10th ed. ). Belmont, CA: Wadsworth, Cengage Learning. Territo, L. , Halsted, J. B. , & Bromley, M. L. (2004). Crime and Justice in America: A Human Perspective (6th ed. ). Upper Saddle River, NJ: Pearson Education, Inc. Carlson, P. M. , & Garrett, J. S. (2008). Prison and Jail Administration: Practice and Theory (2nd ed. ). Sudbury, MA: Jones and Bartlett Publishers, Inc. Jacoby, Joseph (2004). Classics of Criminology 3rd ed. Long Grove, IL: Waveland Press, Inc. Federal Bureau of Investigation, U. S. Department of Justice. (2009). Crime in the United States by Volume and Rate per 100,000 Inhabitants (Table 1). Retrieved on 11/28/2010 from http://www2. fbi. gov/ucr/cius2009/data/table_01. html Bureau of Justice Statistics, U. S. Department of Justice, Office of Justice Programs. (2009). Prison Inmates at Midyear 2008 – Statistical Tables: National Prisoner Statistics. Retrieved on 11/28/2010 from http://bjs. ojp. usdoj. ov/content/pub/pdf/pim08st. pdf Amnesty International. (2009). Figures on the Death Penalty. Retrieved on 11/28/2010 from http://www. amnesty. org/en/death-penalty/numbers NAACP Legal Defense and Educational Fund, Inc. (2010). Death Row USA: Winter 2010. Retrieved on 11/29/2010 from http://www. deathpenaltyinfo. org/documents/DRUSA_Winter_2010. pdf Haney, C. W. (2005). Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions. Retrieved on 11/29/2010 from http://www. prisoncommission. org/statements/haney_craig. pdf


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