Sentences are punishments for convicted defendants. Prescribed punishments for crimes can be found in state and federal statutes. The Eighth Amendment places limits on the severity of punishments.
The death penalty
Thirty‐eight states and the federal government impose capital punishment. It is usually reserved for those who commit first‐degree murder under aggravating circumstances. Defendants convicted of capital offenses have a right to bring mitigating circumstances to the attention of the sentencing authority in order to ensure that only those individuals who deserve to die for their crimes receive the death penalty. Similarly, defendants also have a right to be free from the arbitrary and capricious imposition of death as a penalty.
To prevent the arbitrary application of the death penalty, death‐penalty statutes contain many safeguards. Particularly significant are requirements that limit the discretion of the sentencing jury or judge, that require the presence of aggravating circumstances, that allow the introduction of evidence showing mitigating circumstances, that mandate a two‐part proceeding (one for the determination of innocence or guilt and the other for deciding the sentence), and that provide for the automatic review by an appellate court of all death sentences.
Jails are short‐term lock‐up centers normally run by counties and operated by county sheriffs. Inmates housed in jails include unconvicted defendants awaiting trial who are unable to make bail, convicted misdemeanants, and felons serving jail time as a result of probation violations. Prisons are long‐term penal facilities operated by state and federal governments. Most prison inmates are convicted felons serving sentences of more than one year.
Probation, the most frequently used criminal sanction, is a sentence that an offender serves in the community in lieu of incarceration. Probationers are required to adhere to conditions of probation, such as obeying all laws, paying fines or restitution, reporting to a probation officer, abstaining from drug usage, refraining from travel out of the area where the offender lives, and avoiding certain people (for example, other criminals or victims) and places. If a probationer violates any condition of probation or commits a new crime, the judge can revoke (take away) probation and incarcerate the offender. Probation officers monitor offenders and hook them up with various services in the community. Probation officers handle such large caseloads (on average, 118 per officer in 1994) that they are left with limited time to track or supervise offenders.
Probation is the preferred sentence when the crime is nonviolent, the offender isn't dangerous, the convicted criminal isn't a repeat offender, and/or the criminal is willing to make restitution. Due to prison overcrowding, judges have been forced to place more felons on probation. A Rand Corporation study found that 60 percent of the felons on probation were rearrested for a new crime.
Intensive supervision probation (ISP)
Intensive supervision probation is used for offenders needing more supervision. It allows offenders to live in the community but under severe restrictions. ISP offenders can be required to meet with their probation officers as often as five times a week, to submit to random drug urinalysis tests, to work, to attend drug treatment, and to be under tight surveillance. In 1994, the average ISP caseload was 29 cases for each probation officer. At least one jurisdiction in each state has implemented ISP, primarily for those convicted of crimes against property.
How cost‐effective is ISP? A study of 14 jurisdictions across the country, sponsored by the U.S. Department of Justice and conducted by the Rand Corporation, indicated ISP didn't reduce the cost of correctional services, in part, because the offenders targeted for participation wouldn't have done much prison time. The study also showed that ISP didn't reduce recidivism. Recidivism among ISP participants, however, was often related to violations of the conditions of intensive probation rather than to new crimes.
Offenders sentenced to boot camps live in military‐style barracks and undergo rigorous physical and behavioral training for three to six months. Boot camps are generally reserved for first‐time offenders in their late teens or early twenties. These highly regimented programs are designed to instill discipline and hold youths accountable for their actions. Offenders who successfully complete the program are resentenced to probation, avoiding confinement in prison. Research has failed to confirm that boot camps lower recidivism rates.
House arrest and electronic monitoring
An offender sentenced to house arrest must spend all or most of the day at home. Compliance is enforced in some states by requiring the offender to wear a small transmitter on the wrist or ankle, which sends electronic signals to monitoring units. House arrest can stand alone as a sanction or be used with electronic monitoring. It can also be coupled with fines, community service, and other sanctions. Some electronic monitoring devices can analyze an offender's breath to see if the offender has drunk any alcohol in violation of conditions of the house‐arrest sentence.
Fines are common for first‐time offenders convicted of crimes such as shoplifting, minor drug possession, and traffic violations. In more serious cases, judges combine fines with incarceration or other punishments. If fines aren't paid, offenders go to jail. Fines discriminate against the poor. Day fines are a creative response to this problem. They require offenders to pay a percentage of their weekly or monthly earnings, thus attempting to equalize the financial impact of the sentence on the offender.
Restitution requires an offender to pay money to a victim, whereas a fine requires an offender to pay money to the government. The idea behind restitution is to make the offender pay the victim back for economic losses caused by the crime. The offender may, for example, be required to pay the victim's medical bills or pay a sum of money equal to the value of property stolen. The biggest problem with restitution is collecting the money. To enforce restitution orders, a judge can attach, or garnish, an offender's assets or wages. Another way to enforce restitution is possible in cases in which restitution is a condition of probation. If the offender fails to pay restitution, a judge can revoke the probation and incarcerate the offender.
Paying the community back for harm done, through doing work that benefits the public, is the essence of community service. Offenders can be required, for example, to pick up trash in parks, plant trees, and wash away graffiti.
Punishing by shaming provides a cheap and morally satisfying alternative to punishment. Courts have ordered people convicted of assault or child molestation to put signs in their yards, announcing their crimes. Still other judges have ordered chronic drunk drivers to put bright orange bumper stickers on their cars, announcing their problem and urging other drivers to report erratic driving to the police. Critics say this form of punishment is unlikely to succeed in changing the behavior of repeat offenders because those people are used to breaking society's rules anyway.
Asset forfeiture consists of the government's seizing of personal assets obtained from or used in a criminal enterprise. For example, an airplane may be seized if it was used in smuggling drugs into the country. Law enforcement usually keeps the assets.
Both civil and criminal forfeiture are possible. Civil‐forfeiture laws empower the government to take property without charging a person with a crime and without a criminal conviction. Property can be seized if police believe it was bought with profits of illegal activity or used to facilitate a crime. Police need only to show probable cause to seize property under civil law. If the owner wants to reclaim seized property, the owner usually has to file a lawsuit. At the trial in civil court, the burden of proof rests on the owner to prove the property is innocent by a preponderance of evidence — a higher standard than the probable cause standard used to take the property.
The differences between civil and criminal forfeiture are that criminal forfeiture arises after the criminal conviction of a defendant and that a defendant in a criminal case is afforded full due process rights. Important parts of the Bill of Rights don't apply to civil forfeiture. For example, the property owner has no Sixth Amendment right to an attorney, no Fifth Amendment right to be protected from self‐incrimination, and no Eighth Amendment right to be free from cruel and unusual punishment that is disproportionate to the crime charged against the property. The American Civil Liberties Union believes civil forfeiture violates fundamental constitutional rights, including the right not to be deprived of property without due process of law and the right to be free from punishment that is unreasonably harsh.