punishment and society

¶ … individuals unfamiliar with how the legal system operates judges represent the essence of the system. Judges are viewed as idealistic symbols empowered with the power and authority to affect significant change in an individual's life. They are seen as symbols of society's efforts to render justice and, in some regard, this vision is accurate but the power of judges to fulfill this function is not without standards and, in many ways, the power of any judge to affect true justice is limited by both statute and precedent.

To fully understand the factors that judges utilize in the process of rendering sentences upon those convicted of criminal offenses it is necessary to know the full range of how judges are involved in the criminal procedure. Sentencing is only a small portion of the judicial process and represents the culmination of the other roles that the judge fills in the determination of guilt that creates the need for sentencing. Judges in our society have been afforded an exalted position that contributes to the effect of their decision making. Judges are dressed in long flowing robes, often seated on a raised bench, armed with a gavel, and afforded the honor of having a room full of people rising upon his or her entrance. Few others in society enjoy such levels of respect.

This level of respect plays a major factor in the sentencing process. This respect emanates from the expectation that judges are expected play an impartial and detached role in an effort to reach justice (Frankel, 1993). Interestingly, this is a view that has developed more by tradition than by any proscribed constitutional or statutory requirement. Although a constitutional right to a speedy and public trial by an impartial jury is guaranteed by the Bill or Rights there is no corresponding requirement placed on the judiciary. The United States' Courts have since afforded defendants judicial impartiality through interpretation of case law but no constitutional or statutory authority has been enacted (Tumey v. Ohio, 1927).

One of the current trends in criminal justice is to limit the discretion available to judges in rendering sentences to defendants. Historically, judges have been afforded considerable discretion but in a society that has adopted a public policy that favors law and orders it have become fashionable to blame judges for a perceived leniency toward the treatment of criminals. The result has been an extensive overhaul of the criminal statutes governing sentencing on both the state and federal level. Despite these changes, judges are still afforded the discretion and authority to consider certain "aggravating" or "mitigating" circumstances to determine an appropriate sentence for defendants. Aggravating factors considered by the judge would be those that demand that the sentence received by the defendant should be enhanced while mitigating factors would be those that suggest that the defendant should be afforded a lesser sentence. The new statutes provide stricter guidelines but have not abolished the discretion of judges entirely.

Over time the factors that judges consider in regard to the mitigating or aggravating circumstances have varied but, in modern times, the factors have become fairly well standardized throughout the judicial system. These factors include, but are not limited, to the following:

1) whether the offender is a first time or repeat offender;

2) whether the offender is the main offender or a just an accessory to the criminal act;

3) whether offender was under stress or duress at time of offense;

4) whether the victim was hurt or was there a strong likelihood that injury was to occur;

5) whether the victim was excessively abused or tortured;

6) whether the victim is sincerely remorseful or contrite.

How the mitigating and aggravating factors are applied in any given case is within the exclusive discretion of the sentencing judge. This discretion is to be exercised within the fundamental purpose of sentencing which is to contribute to a general respect for the law and the continued maintenance of a safe and just society. Toward this end, sentencing is intended to deter not only the specific defendant but also any further defendants; remove the defendant from society; provide some measure of rehabilitation to the defendant; and, to provide some measure of reparation to society. The theory supporting each of these sentencing objectives is extensive and complicated but a cursory understanding is necessary in order to understand what guides judges in considering the mitigating and aggravating circumstances that influence their sentencing decisions.

It has become a common belief in the criminal justice community that defendants with prior criminal behavior are to be considered more culpable than a first offender. This increased level of culpability dictates that such defendant deserves a greater punishment (Almendarez-Torres v. United States, 1998). Additionally, punishing repeat offenders serves the dual purpose of sending the message to society in general that repeated criminal behavior will not be tolerated and will be treated more harshly (U.S. Sentencing Commission, 2004). Unfortunately, the research studies on recidivism have shown that enhanced sentencing has done little to affect any significant change in discouraging recidivism (Petersilia, 2007). Many criminal defendants are simply not able to break out of the criminal cycle and find they are returning to incarceration within a short time after their release regardless of the enhanced sentencing received as a result of recidivism. These studies are significant in light of the fact that many states are initiating three-strike legislation that greatly enhances punishments for recidivists (Brown, 2005).

Although nearly every state jurisdiction and the federal sentencing guidelines require sentencing judges to consider recidivism, the use of recidivism as a factor has come under some criticism. Nevertheless, a defendant's prior record remains a significant factor.

The extent of a defendant's involvement in a crime plays a significant role in the nature of the sentence that is ultimately rendered. For instance, if there are multiple defendants and the defendant facing sentencing was a leader in organizing and completing the crime such factor will likely result in an enhancement of the sentence while if said defendant played a minor role the judge may view this fact as a mitigating factor. The sentencing judge will also consider heavily the use of any firearm in the commission of the offense. In most cases, such consideration is mandatory under state sentencing statutes and the judge is afforded little discretion. Modern statutes require that the use of a firearm in the commission of an offense requires mandatory sentencing and, in nearly every jurisdiction, the mandatory time is attached to any other sentence that the judge decides to impose. These mandatory sentencing requirements are a reflection of the public policy position that discourages the use of firearms.

Judges, in reviewing the conduct of the defendant in relation to sentencing, take into consideration the defendant's acceptance of guilt and possible help in completing the criminal investigation of the crime. Judges are influenced significantly by a defendant's willingness to admit guilt and avoid the necessity of trial. Defendants are advised that they have a right to have a jury of their peers find them guilty but defendants who forego such procedure and admit their guilt are looked upon favorably by the court.

The increased recognition by the criminal justice system of the effects of psychological and social factors and their interplay with criminal behavior has caused the courts to weigh such factors heavily when determining sentences. Judges realize that stresses in a defendant's life contribute significantly to the decision making process and that these stresses may have caused a defendant to act differently than he normally might. Assuming that the circumstances giving rise to the stress can be demonstrated to the court, the sentencing judge is highly likely to give such circumstances consideration. Similarly, if a defendant can offer evidence that the crime for which he is being sentences was committed under duress similar consideration will be afforded by the judge.

Victim impact has become an important consideration by the courts (Payne v. Tennessee, 1991). Again, this is the result of public policy. This is a rather recent development in regard to sentencing as through most of the country's legal history such statements were not allowed. Public policy in recent years, however, has turned toward the protection of victim's rights and the use of victim statements at sentencing and examining how a particular crime has impacted on the victim has been afforded much more weight than it once was. In today's legal system, punishing the defendant is no longer sufficient and the legal system is looked upon as having a responsibility of ensuring that the victim's interests are protected as well. The significance of victim's rights and impact is reflected in the fact that 49 of 50 states have enacted legislation or state constitutional amendments that permit the reading of victim impact statements at the time of sentencing. Civil libertarians argue that such statements should not be allowed, basing their arguments on the Due Process Clause of the Fourteenth Amendment, but, to date, all such challenges have been unsuccessful. In any event, even absent victim impact statements, sentencing judges are still permitted to consider the impact that the crime has had on the victim in formulating his decision as to an appropriate sentence.

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.