SENTENCINGDECISIONS
The sentencing decision is typically the last court deci-
sion made in a case. This decision has attracted the most
attention from researchers studying legal decision mak-
ing. After being convicted of a crime, a defendant may
be sentenced to, for example, imprisonment, a commu-
nity penalty, fine, restitution or compensation, or proba-
tion. A sentence may have one or more goals, including
to deter, rehabilitate, and incapacitate the offender.
Crimes may have maximum and minimum penalties
attached to them. However, in between these penalties,
sentencers have discretion as to the sentence they pass.
Efforts have been made to curb this discretion through
the introduction of sentencing guidelines. Past research
on sentencing has largely been conducted in the
American and English criminal justice systems.
Researchers have aimed to describe and explain sen-
tencing practice. They have found that guidelines do not
necessarily reduce sentencing disparity. Sentencing
decisions are associated with earlier decisions in a case.
In addition, sentencers may be influenced by myriad
individual-level factors such as offender, victim, and
case characteristics as well as higher-level factors
related to the sentencer, court, and area or jurisdiction.
Sentencing Theory and Policy
Once a defendant has been convicted of a crime, he or
she will be sentenced. This sentencing decision is typ-
ically made by a judge or magistrate (depending on
the sentencing court). Several sentencing options are
available to sentencers; common ones include incar-
ceration (prison or jail), community sentences, fine,
restitution or compensation, and probation. Of these,
incarceration is usually the most severe sentence,
although some crimes carry the death penalty in some
jurisdictions. Defendants convicted of more than one
crime may be given consecutive or concurrent sen-
tences. Sentencing statistics indicate trends in sen-
tencing such that the relative use of different options
changes over time, largely in response to changes in
sentencing policy or public opinion.
A sentence may be justified on one or more of sev-
eral theoretical grounds. In their simplest forms, desert
or retributive theories propose that those who commit
crimes deserve punishment and should receive sen-
tences proportionate to the seriousness of the crime.
Deterrence theories state that a sentencing should aim to
deter specific people, or people in general, from com-
mitting crimes and that doing so requires that a sentence
be certain and severe. Rehabilitative approaches also
suggest that a sentence should aim to prevent further re-
offending but hold that this should be done by means of
treatment. The incapacitative approach advocates that a
sentence should aim to protect the public by detaining
persistent or dangerous offenders. Finally, restorative
and reparative theories state that sentences should aim to
repair the harm done by crime and encourage social
integration.
Research on public opinions of sentencing has
found that support for the purposes of punishment
varies by the nature and seriousness of the offense.
Nevertheless, studies have consistently reported that
people perceive sentencing policies and practices as
being too lenient. In fact, public opinion has been a
driving force behind several sentencing policies such as
the “three strikes” policy in the United States. However,
evidence also suggests that the public may be ill
informed or misinformed about current sentencing pol-
icy and practice as well as crime rates. Studies indicate
that the public are less likely to favor imprisonment
when they are made aware of the range of sentencing
options available, and they support alternatives to
imprisonment under certain circumstances.
Most offenses have fixed maximum penalties
assigned to them, usually in the form of a length of
incarceration or fine amount, and some offenses also
have mandatory minimum sentences. In addition, the
sentencing options may differ for offense type. Finally,
sentencing options may differ for adults and youths
(juveniles and young offenders). Despite this, the sen-
tencer is afforded considerable discretion in the sen-
tence passed. When making a sentencing decision,
sentencers are expected to use legal factors such as the
nature and seriousness of the offense and the defen-
dant’s criminal history. The sentencer is also obliged to
take into account any aggravating factors, such as the
vulnerability of the victim, whether the victim was
racially/religiously targeted, the offender’s leading role
in the offense, his or her profit from the offense, as
well as mitigating factors, such as whether the offender
was provoked, the offender’s minor role in the offense,
and his or her acceptance of responsibility or show of
remorse. Finally, sentencers may also have access to
sentencing recommendations provided by a probation
officer in what is called a presentence report.
Sentencing guidelines have been introduced in
some jurisdictions to focus sentencers’ attention on
708 ———Sentencing Decisions
S-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 708