Faye S. Taxman and Alex Breno
Alternatives to incarceration are more than options, they have evolved into sentences of their own accord. Originally, probation and prison were the two major sentences; however, the concept of intermediate or graduated sanctions emerged in the 1980s and evolved throughout the 1990s. While alternatives to incarceration were considered options, they are now recognized as intermediate sanctions, graduated sanctions, and just plain sentencing options. This emergence occurred during the time that probation-plus-conditions sentences spiked, so that the average probationer now has over 17 standard conditions. With Justice Reinvestment Initiatives as a national effort to reduce the impact of mass incarceration policies, the JRI policy effort the has served to legitimize sentences that used to be considered “alternatives” by incorporating risk/need assessments, legislation to reduce sentence lengths and incarceration sentences, and changes in practices to address noncompliant probationers and parolees. Here, a new conceptual model is proposed that integrates sentencing options with results from a risk and need assessment depending on various types of liberty restrictions. Given the need to reduce prison overcrowding, there is an even further need to examine how different sentencing options can be used for different type of individuals.
The death penalty, also referred to as capital punishment, is the process whereby a state government orders a sentence of death for a person found guilty of a particular set of criminal offenses. In the United States, the primary capital crime is first-degree murder with an additional aggravating factor, usually called a “special circumstance” (e.g., murder of a law enforcement officer). Capital punishment is a complex process that includes a criminal charge, an involved legal process, sentencing, special “death row” prison housing, post-conviction appeals, and the ultimate execution of the defendant. Persons sentenced to death are called condemned. Execution refers specifically to the process in which the defendant is killed.
Capital punishment has been practiced throughout human history, with considerable variation across eras and regions. In the last 50 years, the use of capital punishment has declined across the globe, and there are relatively few countries that use it regularly as a form of punishment, most notably China. Some countries have abolished the death penalty completely, such as all member states of the European Union. Most other countries have seen a decline in its use. For instance, only 31 out of 50 states in the United States currently have death penalty statutes (there are also federal death penalty statutes, which are rarely used). The other 19 U.S. states are referred to as “abolitionist.”
The “modern era” of capital punishment in the United States was spurred by two important Supreme Court cases. The Furman v. Georgia (1972) decision ruled that arbitrariness in the application of the death penalty deemed its use unconstitutional. The reversal of that ruling four years later in Gregg v. Georgia (1976) reestablished the death penalty in America, and experts refer to the modern era as 1976 to the present.
The dawn of the 21st century marked a turning point in the history of the American death penalty. Politically, the death penalty seemed vulnerable. A wave of abolitionism not seen since the Progressive Era took hold in the 2000s, as six states abandoned the death penalty, and governors in five others instituted moratoria, promising to use their executive power to stay all executions while they remained in office. While the Supreme Court remained committed to the constitutionality of the death penalty, it slowly chipped away at it in a series of decisions that narrowed the range of persons whom the state could execute.
Public support for the death penalty, already in decline during the late 1990s, continued to fall in the 21st century. A number of factors depressed support for the death penalty to levels not seen since the early 1970s: a decline in violent crime and fear of crime; highly publicized DNA-based exonerations of death-row inmates; and wariness of the cost of maintaining the death penalty, particularly during the great recession of the late 2000s.
The use of the death penalty was declining as well. The expansion of life without parole as an alternative punishment in the 1990s and 2000s gave juries in some states harsh alternatives to death sentences that they did not previously have. Longer-term changes to the judicial and penal administration of the death, meanwhile, continued to make the path between conviction and execution longer and more difficult for state officials to traverse. Most offenders sentenced to death since the 1970s were not (or have not yet been) put to death, and the average wait on death row for those who have been executed has grown to over a decade and a half. Growing problems with the practice of lethal injection, meanwhile, have posed new problems for states seeking to execute capital defendants in the 2000s, producing new legal battles and bringing executions nationwide to a temporary halt in 2007–2008.
The 2016 election of Donald J. Trump to the presidency of the United States, however, may portend a slowing or reversing Americans’ 21st-century turn away from the death penalty.
Disciplinary segregation is a punishment that prison officials impose in response to inmate violations of prison rules such as assaulting another inmate or disrespecting an officer. Disciplinary segregation is distinct from other types of restrictive housing (e.g., supermax confinement, administrative segregation), but it is the most commonly used form of restrictive housing in most states. Inmates housed in disciplinary segregation typically spend 23 hours a day in a cell, with limited interaction with other inmates or prison staff. Inmates’ access to other privileges such as recreation, programming, and visitation is also restricted during their time in disciplinary segregation.
Prison officials have the discretion to place inmates found guilty of violations of the inmate rules of conduct in disciplinary segregation, and indeed, segregation is a common response to rule violations. It is expected that confinement in disciplinary segregation will deter inmates’ subsequent rule breaking, but some scholars argue that confinement in disciplinary segregation amplifies inmates’ misbehavior via labeling or by stimulating mental health problems that ultimately result in problem behaviors (e.g., rule violations). Despite these assertions, there is little evidence regarding the impact of disciplinary segregation on inmates’ behavior or mental health. Precise estimates of the extent of the inmate population exposed to disciplinary segregation (and their level of exposure), and studies of the factors that influence prison officials’ decision to place inmates in disciplinary segregation are also limited. The frequency with which disciplinary segregation is used, its greater cost compared to general population confinement, and calls for the equitable and effective use of restrictive housing in prisons by civil rights advocates, the U.S. Congress, and former President Obama underscore the need for further research on the topic.
Marian R. Williams
The death penalty has long been a source of debate and is perhaps the most litigated sentence in the United States. Arguments for the use of the death penalty point to “just deserts” or retribution, while arguments against its use point to its implementation, including how the death penalty is administered (e.g., via electrocution, lethal injection), the types of offenses that are eligible for the death penalty (e.g., murder, rape, treason), and the offenders who are sentenced to death (e.g., males, minorities). This latter concern is the subject of much research, to the extent that a number of U.S. Supreme Court cases have addressed this research, especially in the cases Furman v. Georgia (1972) and McCleskey v. Kemp (1987). Research has indicated that those who are sentenced to death share common characteristics, including gender, minority status, social class, geography, and victim similarities. Overwhelmingly, research has noted that, in general, those who kill white victims are the most likely to receive a death sentence, particularly black offenders who kill white victims. Also, males are more likely to receive a death sentence than females, low-income individuals are more likely to receive a death sentence than higher-income individuals, and committing a capital offense in a handful of counties in the United States increases the likelihood of a death sentence.
It is difficult to determine in most cases the reasons for this disparity. Outright discrimination by prosecutors, judges, and/or juries is a possibility, but the court system has made it extremely difficult for offenders to prove discrimination in their individual cases. Some researchers argue that the criminal justice system is stacked against minorities and the poor, by enforcing laws more forcefully in their neighborhoods and requiring financial resources to defend oneself (e.g., bail, defense attorneys). Regardless of the reason for disparate treatment in individual cases, the fact that disparate treatment exists is concerning in a country whose constitution emphasizes due process and equal protection under law.
Lynne Haney and Lili Dao
In many respects, gender has been missing from the enormous literature on the form and focus of state systems of punishment. This is true in both the historical accounts on shifts in penal practices and the scholarship on the contemporary emergence of mass incarceration. Gender is absent as a category of analysis and as an explanatory variable in these scholarly debates. At the same time, while there is a large literature on women in the criminal justice and penal systems, it rarely addresses broader questions of how and why the penal system has grown in size, deepened in scope, and broadened in reach over the last few decades.
There have been three major approaches to the study of gender and punishment. The first inserted women into accounts of the criminal justice and penal systems, which had historically concentrated on male offenders. Some of this early work used a historical lens to analyze shifts in women’s confinement practices, particularly the evolution of the reformatory in the 19th and early 20th centuries. Influenced by debates in feminist legal theory about sameness and difference, one major line of inquiry sought to determine whether women were treated more leniently than men, particularly with regard to sentencing. A second approach, gaining momentum in the 2000s, shifted the focus from gender differences in outcomes to the gendered dynamics of penal control. More qualitative in nature, this scholarship conceptualized gender as a process that was both transformed and harnessed in penal institutions. Drawing on a broader movement in gender studies, this work focused less on women per se than on how gender was socially constituted. The third and final approach takes seriously the call of critical legal scholars of race and gender to examine the intersections of disadvantage. While academic analyses of intersectionality came to the fore in the 1990s, this perspective made few inroads into penology and criminology until relatively recently. Recent work on the intersection of racialization, masculinity and punishment, and the sexual politics of the prison point to promising new directions that transcend common understandings of criminalization and punishment.
Geoffrey C. Barnes and Jordan M. Hyatt
Intensive Supervision Probation (ISP) is a form of community supervision that employs smaller caseloads, more frequent contacts, and a variety of other mechanisms to increase the level of surveillance and control for those on criminal probation. While this approach has seen successive waves of research interest, the evidence on its effectiveness seems relatively disappointing. Most existing studies have shown that ISP produces very little reduction in recidivism, while also being more costly to deliver. In addition, ISP’s surveillance mechanisms result in more frequent detection of technical violations, leading to a greater use of incarceration. Despite these disappointing findings, however, there is some potential for ISP to be used in a positive way. Recent developments in assessing both the risk of offending and the criminogenic needs of individual probationers, combined with shifts in the philosophical foundations of community supervision, suggest that ISP could prove to be a useful and productive tool when targeted at the most advantageous population of criminal offenders.
Numerous philosophical theories purport to justify a system of legal punishment. It is doubtful, however, that any of them successfully answer these three questions: Why punish? Whom to punish? How much to punish? Straightforward retributive theories, which justify punishment by looking back at the wrongful harm done by an offender, don’t adequately answer the question of why the offender should be harmed in return for harm done. More sophisticated retributive theories construe punishment as equalizing an unfair advantage taken by an offender. Such theories have difficulty with the question of how much to punish. Consent theories view offenders as willing punishment onto themselves by their voluntary acts. The various versions of this theory all fail to answer one or more of the three questions: why, whom, and how much. Rights forfeiture theories give a question-begging answer to the “why” question and don’t answer the question of how much. Consequentialist theories, which justify punishment by looking forward to results such as deterrence and incapacitation, have difficulties with whom to punish and how much. Arguably, punishing an innocent person who is believed to be guilty could deter potential offenders, and a serious offense might be deterred by a less severe punishment than a minor offense. Some philosophers see insurmountable problems for strictly backward-looking theories that appeal to guilt of the offender and for strictly forward-looking theories that appeal to future consequences. The solution, then, could be a theory that appeals to future results to provide a reason for punishing, but looks back at harm done by the offender to answer the question of whom to punish and how much. However, without a unifying rationale for taking these different approaches to these particular issues, such a mixed theory would be ad hoc if not incoherent.
In recent decades, philosophers have offered several approaches that might avoid the pitfalls described above by providing a unified rationale for punishment that is both backward and forward looking. Self-defense theories hold that it is rational and justifiable for the state to threaten punishment in order to defend citizens against offenses. They then move by various strategies from the justifiability of the threat to the justifiability of punishment. Forced choice theories justify punishment as a way of distributing necessary harm to the guilty rather than the innocent. Censure theories attempt to justify punishment as the state’s means of expressing disapproval of offenses against the law. Each of these theories faces difficulties, but proponents might judge that even though they haven’t yet been able to adequately state the justification of punishment, their theory is on the right track. Others view the difficulties faced by all theories and boldly conclude that punishment is not justifiable. There is little support for rehabilitation as an alternative to punishment. The practices associated with restorative justice, although not directly aimed at punishment, typically involve punishment, so they still require a justification for punishment. Whether a system of restitution could take the place of a system of punishment is problematic. The situation is made even more troublesome by the fact that the theories that have been surveyed aim to justify punishment in a society with a just political structure and laws. Even if such a theory succeeds, it is far from clear that it would justify punishment in a society where many of those who are harmed by punishment have also been victims of injustice.
Sentencing is a complex task that involves judicial officers imposing sentences in the first instance and deciding appeals from those judges in certain circumstances. Both trial and appellate courts are usually invested with some discretion as to the nature and quantum of sentence that may be imposed. Appellate jurisdiction varies widely between countries reflecting disparate approaches to discretion, differences in the grounds of appeal, in the deference paid to trial judges and the role of prosecution in the appellate process. While most jurisdictions give defendants the right to appeal against sentence, they differ in the ability of prosecuting authorities to appeal against sentence. In some jurisdictions there is considerable asymmetry between defendants’ and prosecution’s appellate rights.
Historically, defendants’ rights of appeal preceded, and have been more extensive those of the prosecution, and traditionally, the balance has been tilted in favor of defendants. However, in a number of jurisdictions, this imbalance has been questioned. The principal arguments against prosecution appeals have centered on the concept of double jeopardy, which has long applied in substantive criminal procedure. Since the early 1980s the analogy with substantive double jeopardy has been questioned or rejected as has the double jeopardy principle itself. Justifications for the principle such as the anxiety and distress suffered by the defendant, the need for finality, the possibility of double punishment, and the abuse of power have all been re-assessed.
The case for equal or symmetrical rights rests on the basis that the law requires that error, whether in favor of the defendant or the prosecution, should be corrected as a matter of justice. A balanced appellate process can ensure consistency in, and the adequacy of, sentencing standards, provide guidance to sentencing judges, and increase victims’ and public confidence in the criminal justice system.
Much has been written about mass incarceration and how it has fallen especially hard on people of color. Given their representation in the U.S. population, for example, black and Hispanic males are far more likely than their white counterparts to be sent to jail or prison. Such disproportionality may be due to the greater involvement of blacks and Hispanics in serious street crime, especially violent crime, which would result in differential incarceration. It also could be due to discretionary decisions by criminal justice officials during arrest, charging, conviction—and, key to the focus of this article, sentencing—which might produce disparity, to the disadvantage of black and Hispanic men. Various theories seek to explain racial and ethnic sentencing disparity by focusing on characteristics of individuals and criminal cases, features of court organization and decision-making, and social contexts surrounding courts.
Literally hundreds of studies in the past 40 years and beyond have focused on sentencing decisions in local courts and unwarranted racial/ethnic punishment disparity, defined as racial/ethnic differences that persist after accounting for legally prescribed and perhaps case-processing influences. Some reviews of this large and mature body of literature have shown that young, black, and (to a lesser extent) Hispanic male defendants tend to receive more severe sentences than other defendants. In addition, reviews have noted how the sentencing role of race/ethnicity is often conditional on gender and other factors, and that racial/ethnic disparity in sentencing varies in connection with characteristics of courts and their surrounding social contexts. Future research on race, ethnicity, and sentencing should address disparity in relation to earlier (e.g., charging and conviction) and later (e.g., parole, probation, or parole revocation) stages of criminal justice decisions, as well as how the social characteristics of judges, prosecutors, and defense attorneys affect disparity. Research studies should continue to examine how specific punishment policies (e.g., mandatory minimums, risk assessments, and sentencing guideline provisions and departures) may be the sources of racial and ethnic disparity.
Sentencing guidelines were created with the goal of reducing unwarranted disparities in sentencing outcomes based on race, gender, and other legally irrelevant characteristics in order to establish a uniform sentencing system. In the 21st century, approximately 21 states and the federal courts use sentencing guidelines, although the types of guidelines used vary, with some more restrictive than others. With the quest to create more uniform sentences, scholars have examined whether the guidelines have actually reduced unwarranted disparities in sentencing outcomes. One area that has received attention from sentencing scholars as an avenue for the potential reintroduction of disparity into the sentencing process is the ability to sentence offenders outside of the guideline range, a practice otherwise known as “sentencing departures.”
Departures from guideline sentences are either below or above the suggested guideline range for a particular offense, with most departures resulting in below guideline sentences. Both judges and prosecutors have the authority to issue departures. Within the federal sentencing guideline system, prosecutors have the sole discretion to offer substantial assistance and other types of government-sponsored downward departures. The amount of discretion given to federal judges to depart from the guidelines has changed dramatically over the years, and the use of departures has subsequently increased in recent years. Research has examined whether this increase in departures has resulted in an increase in unwarranted disparity once again. This research has primarily focused on two related questions: (1) Have departures increased disparities in sentencing outcomes based on race, ethnicity, gender, or other factors? (2) Who is most likely to receive a departure sentence? Several studies have found there to be differences in likelihood of receiving departures; with African Americans, males, and offenders charged with specific types of crimes less likely to receive downward departures. Other research, however, has further suggested that the increased use of departures may not have increased sentencing disparities based on race or ethnicity. Additionally, a new scope of research has emerged which takes a more nuanced examination of sentencing departures; looking at variations among districts, policy disagreement departures, and other considerations. Ultimately, the current body of research on the use, consequences, and implications of sentencing departures has provided some mixed findings and many questions remain unresolved. As research on departures continues, our understanding of the complex nature of sentencing decisions under guideline based systems will continue to grow.
Despite a growing consensus that “mass incarceration” in the United States has reached unacceptable levels, there has been little movement in its decline. National imprisonment rates seem to have stabilized and will remain so absent a major decarceration effort. To implement such a decarceration effort requires a strategic plan that will lower prison admissions and lengths of stay for all prisoners—especially those convicted of violent crimes. It will also need to reduce the more pervasive nature of other forms of correctional control (jails, probation, and parole). Such a strategy, which relies upon current and past policies, is entirely feasible. But to take hold on a national level, the plan must negate economic and public safety concerns that favor maintaining high imprisonment and correctional control rates.