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In examining sentencing options, judges are free to look at mitigating circumstances that might limit the term of the sentence but they are also free to look at factors surrounding the case that might serve to enhance the sentence. Once such enhancing factor is the degree to which the defendant's behavior served to indicate some measure of viciousness or abuse. Such factor is usually seen in cases involving crimes of violence as crimes such as assault, rape, kidnapping, or murder as all involve some form of physical violence and lend themselves to the potential for further violence but the factor can be considered in any type of criminal action. In criminal cases where the defendant exhibits such depravity and callousness judges are prone to extend the period of incarceration. Mitigation factors can, and often are, still considered by the judge but such factors must be compelling in order to override the defendant's violent behavior. In such cases, the judge is subject to significant public pressure and scrutiny and any indication of soft or special treatment opens the judge to criticism. In jurisdictions where judges are subject to election such misstep could result in the end of a judge's career so most judges take special care to rule conservatively in high profile cases.

One factor that judges consider may serve as either an enhancement or as mitigation. This factor involves the individual criminal defendant's level of remorse (Wood, 2007). Due to the ambiguous nature of remorse, this factor has proven to be difficult to apply and there are many who feel that judges place too much significance on the presence or absence of such factor. As criminal actions involve victims, judges are always examining, almost from the defendant's first appearance in court, the attitude of the defendant and how he or she is reacting to the process. A defendant that appears in court displaying a high level of confidence, uncooperativeness, or aggressiveness may fail to convince the judge of his contriteness. Defendants who appear in court and demonstrate some level of humility, politeness, and spirit of cooperation are more likely to convince the judge of his or her remorse. It should be pointed out that being able to successfully demonstrate remorse does not help the sentencing outcome in all cases. In cases involving significant viciousness, the demonstration of remorse is likely to have no effect on the sentence that is ultimately rendered. The viciousness of the criminal act in such circumstances is so pervasive as to dominate the entire proceeding and any resulting sentence must be balanced against such viciousness.

The factors that have been set forth are, of course, those that a typical judge would ordinarily consider in making any sentencing decision. Many of these factors are set forth statutes and judicial guidelines and provide judges with a framework for making their decisions. There are, however, other factors that are not so obvious but are equally as important. In an ideal world judges would be immune from the psychological and sociological factors that influence the decision making process of other members of society but judges are human too and are affected by the same prejudices and biases that affect everyone. These factors, whether consciously or subconsciously, play significant role in the sentencing decision making process and have been studied extensively by social scientist and experts in the field of criminal justice (Mustard, 2001). Attempts have been made to minimize these factors through the enactment of sentencing statutes but the research indicates that the disparities in sentencing continue. Gender, race, and ethnicity are a part of society and they play a part in the decision making authority of judges and for as long as judges are afforded discretion of any kind in sentencing they will continue to be so.

Despite a movement toward limiting judicial discretion in sentencing any significant change in this regard should not be expected. A modern criminal justice system demands that flexibility is a built in feature and that allowances are made to treat each criminal case as unique involving special circumstances and individuals who bring their own live experiences to the bench as the time for sentencing approaches. Society must trust that the individuals who have been chosen as judges possess the necessary education, experience, and wisdom to make informed and judicious determinations. In the process, mistakes in judgment will be made but it is the price that must be paid in order for the interests of justice to be satisfied. On balance, the mixed system of sentencing guidelines, statutory requirements, and judicial discretion works effectively and the sentencing process exists fairly.

References

Almendarez-Torres v. United States, 523 U.S. 224 (U.S. Supreme Court 1998).

Brown, B. (2005). Three Strikes -- the Impact after more than a Decade. Sacramento, CA: Legislative Analyst's Office.

Frankel, M.E. (1993). A Conversation about Sentencing Commissions and Guidelines. University of Colorado Law Review, 655-659.

Mustard, D.B. (2001). Racial, Ethniic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts. Journal of Law and Economics, 285-314.

Payne v. Tennessee, 501 U.S. 808 (U.S. Supreme Court June 27, 1991).

Petersilia, J. (2007). State-level Context and Offender Recidivism: The Impact of state sentencing structures. Irvine, CA: University of Calfornia, Irvine.

Tumey v. Ohio, 273 U.S. 510 (U.S. Supreme Court March 7, 1927).

U.S. Sentencing Commission. (2004). Criminal History: Introductory Comments. Washington, D.C.: U.S. Sentencing…[continue]

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