Chapter Twelve:

Chapter 12 Key Terms

1.     Corpus Delicti: Proof of act and that act resulted from the illegal actions of the defendant; also called proving the crime.

2.     Continuance: A court-authorized postponement of a case to allow the prosecution or defense more time to prepare its case.

3.     Discovery: The process that entitles a suspect to review certain information gathered by the prosecutor.

4.     General Defenses: Justification or excuses for criminal conduct that are applicable to all criminal offenses.

5.     Justification Defenses: Defenses that admit to the criminal conduct, but claim it was justified by overwhelming circumstances, such as self-defense.

6.     Excuse Defenses: Defenses that claim that criminal conduct should be excused because the defendant cannot be held responsible for it. Insanity and duress are examples.  

7.     Jury Nullification: Acquittal of a defendant despite facts that show guilt.

8.     Retribution: Punishment applied simply in proportion to the seriousness of the offense.

9.     Incapacitation: Prevention of further criminal behavior by physically restraining the offender from engaging in future misconduct (usually through incarceration).

10.  Selective Incapacitation: Identification of potential high-rate offenders for incarceration for longer periods as a means of reducing crime.

11.  Habitual Offender Laws: Laws that subject multiple offenders to periods of incarceration ranging up to life imprisonment, on the grounds that they must be physically separated from society in order to protect society from their criminal conduct.

12.  Deterrence: Prevention of crime through the example of offenders being punished.

13.  Rehabilitation: The view that sees criminal behavior as stemming from social or psychological shortcomings; the purpose of sentencing is to correct or treat these shortcomings in order to prevent future crimes.

14.  Suspended Sentence: A delayed imposition of a prison sentence that requires the offender to fulfill special conditions such as alcohol, drug, or gambling treatment or payment of restitution.

15.  Presentence Report: A report conducted by a probation officer into an offender’s background to assist the judge in determining an appropriate sentence.

16.  Indeterminate Sentencing: A system of sentencing that empowers the judge to set a maximum sentence (up to the limit set by the legislature), and sometimes a minimum sentence, for the offender to serve in prison.

17.  Determinate Sentencing: A sentencing system that permits judges to impose fixed sentences that cannot be altered by a parole board.

18.  Truth in Sentencing: A sentencing provision that requires offenders to serve the bulk of their sentence (usually 85%) before they can be released.

19.  Mandatory Sentences: Fixed sentences for offenders convicted of certain types of crimes such as gun-related crimes, drug offenders, and drunk-driving offenses.

20.  Guideline Sentences: Sentences developed by examining the averages of past sentences imposed on various combinations of offenders and designed to achieve proportionality and uniformity without mandating specific sentences for certain crimes or offenders.

21.  Cruel ad Unusual Punishment: A portion of the Eight Amendment prohibiting criminal penalties that violate “evolving standards of decency that mark the progress of a maturing society.

Questions

1.     List the sequence of events in a typical criminal trial?

§  A defendant is arrested, and complaint filed; preliminary hearing; grand jury returns indictment; discovery proceedings; motion filed; trial; opening statements; government prosecutor’s case; presentation evidence; defendant’s case; government’s rebuttal case; closing argument; jury instructed; deliberations; and verdict.

2. What is required if a jury is to reach a verdict of guilty?

§  When a jury reaches a verdict of guilty, the defendant stands convicted of the crime alleged. The defendant then is sentenced within the limits established by law. Commonly both the prosecutor and defense counsel make recommendations to the judge regarding an appropriate sentence.

3. What are some arguments for and against considering factors other than the crime in deciding on an appropriate sentence for a convicted offender?

§  Sentencing is subject to much criticism: Sentences often are seen as either too lenient or too severe. A sentence rarely is viewed as appropriate in a given case. However, judges do not decide on sentences in an arbitrary fashion. The degree of latitude given to judges is established by law. It is obvious that other sentencing choices were available to the judge, and those other sentences could have been imposed and defended rationally.

§  Retribution and Incapacitation plays an important role in this matter. Whereas when a judge sentences for purposes retribution, punishment is applied simply in proportion to the seriousness of the offense. The “eye for an eye” system of justice described in the Old Testament is an early form of retribution.  However, sentences based on the concept of incapacitation are intended to prevent further criminal behavior by physically restraining the offender from engaging in future misconduct. The primary method of incapacitation in the U. S. is incarceration, although other methods also are used, such as suspension of the offender’s license to practice law or medicine in cases of crimes committed by lawyers or physicians. In few countries amputation is still used as punishment for robbery and theft.

4. Name and describe the four main purposes of sentencing?

§  Retribution and Incapacitation plays an important role in this matter. Whereas when a judge sentences for purposes retribution, punishment is applied simply in proportion to the seriousness of the offense. The “eye for an eye” system of justice described in the Old Testament is an early form of retribution.  However, sentences based on the concept ofincapacitation are intended to prevent further criminal behavior by physically restraining the offender from engaging in future misconduct. The primary method of incapacitation in the U. S. is incarceration, although other methods also are used, such as suspension of the offender’s license to practice law or medicine in cases of crimes committed by lawyers or physicians. In few countries amputation is still used as punishment for robbery and theft.

§  Deterrence as a purpose of sentencing that aims to prevent crime through the example of offenders’ is being punished. General deterrence is directed at preventing crime among the general population, while special deterrence is aimed at preventing future crimes by a particular offender. Unfortunately, the objectives of general and special deterrence are not always compatible.

5. What is a suspended sentence?

§  It is a delayed imposition of a prison sentence that requires the offender to fulfill special conditions such as alcohol, drug, or gambling treatment or payment of restitution.

6. Distinguish between indeterminate and determinate sentencing systems.

§  Indeterminate sentencing systems empower the judge to set a maximum amount of time (up to the limit set by the legislature), and sometimes a minimum amount as well, for the offender to serve in prison. While determinate sentencing systems permits the judge to impose fixed sentences that cannot be altered by a parole board.

7. What is meant by “truth in sentencing”?

§  It is a sentencing provision that requires offenders to serve the bulk of their sentence (usually 85%) before they can be released.

8. What are sentencing guidelines? What effect have they had in the states where they have been adopted?

§  These are sentences developed by examining the averages of past sentences imposed on various combinations of offenders and offenses and designed to achieve proportionality and uniformity without mandating specific sentences for certain crimes or offenders.

§  The primary thrust was to emphasize the offense, rather than the offender, in criminal sentencing. In 1987 the commission implemented federal sentencing guidelines, and seven additional states had established voluntary sentencing guidelines. Although sentencing guidelines have been found to increase uniformity in sentencing in many jurisdictions, this is not the case everywhere. After the first few years, uniformity tends to deteriorate.

9. What protections are provided by the Eight Amendment to the U.S. Constitution?

§  The portion of the Eight Amendment that has been most rigorously scrutinized is the prohibition of cruel and unusual punishment. A punishment is considered cruel and unusual if, in the words of the Supreme Court, it violates “evolving standards of decency that mark the progress of a maturing society.”

10. What is the current legal status of the death penalty?

§  There are several reasons that the death penalty is not a deterrent to criminal homicide. Most significant is that the offenders must consider the consequences of their actions if deterrence is to take place. If a person does not consider the possibility of being penalized for pursuing criminal actions, no penalty, however severe, will act as a deterrent. The crime of murder is rarely carried out in such a rational fashion. 

11. Describe the main arguments in support of the death penalty.

§  Some claim that the death penalty is more economical than housing an offender in prison for life. The economic argument for the use of the death penalty thus does not hold up under scrutiny. It also overlooks the fact that the proportion of offenders who ever face the death penalty is extremely small.    

12. How has DNA testing changed the way in which convicted criminals are viewed?

§  DNA tests are now generally accepted as evidence in court. DNA evidence has revealed that eyewitnesses’ testimony is sometimes mistaken, that jailhouse informants can be unreliable, and that those with criminal records often become suspects in criminal cases without strong evidence of their involvement in the crime.