Week 12 reading 1: Dealing with the Guilty Offender; Goodman-Delahunty

Question 1

Sentencing

Answer 1

= the imposition of a legal sanction on a person convicted of a criminal offense
 Involves;
* The judge
* Counsel for the prosecution
* The offender
* Counsel for the defense
* Family or community members
* Crime victim or their representatives

Question 2

Sample Bias in Sentencing Studies

Answer 2

o There is little empirical research on sentencing as only a small proportion of cases go to trial compared to those that are settled or disposed of our of court. So, investigations confined to studies of the trial process, tend to ignore the majority of cases and more normal dispotional processes.

Question 3

Prevalence of Plea Bargains

Answer 3

 In the US ~90% of criminal cases are determined by plea bargains
 In Aus ~32% of criminal cases are resolved by pleas

Question 4

• Plea bargains

Answer 4

o Remains controversial. They tend to occur in private, confidential meetings between parties – which hinders research access
o By entering a plea, the accused does not accept or deny responsibility for the charges but agrees to punishment
o plea bargaining can be coercive, encouraging guilty defendants to geign remorse and persuading a number of innocent defendants to plead guilty because of overestimating their chance of conviction at trial

Question 5

• Theories of Punishment

Answer 5

o Most sentences imposed are intended to inhibit criminal behaviour or to reform the individual defendant in light of a particular philosophy or goal of punishment and sentencing
o Five major goals of punishment cabe been distinguished
 Incapacitation
 Retribution
 Deterrence
 Rehabilition
 Restoration
o Sentences imposed to prevent the commission of future offences depend in part on the beliefs about the crimes cause and how balme is allocated for criminal conduct. The extend of free will, individual choice, or internal, dispositional factors are regarded as essential causal factors and motive for retribution in sentencing increases.
o Conversely when external factors are seen to shape criminal conduct, mitigation is extended to offenders and a wider causal context is examined to deter future criminal conduct

Question 6

o 2 types of incapacitation

Answer 6

 1. Collective
* Promote longer sentences for all offenders regardless of their criminal history
* Takes on a get tough on crime approach suggesting the punishment (cost) should outweigh the perks of the crime (reward)
* But to achieve a 10% reduction in crime through incarceration, a doubling of the prison population is necessary
 2. Selective
* Is the prevention of crime through the physical restraint of persons selected for confinement on the basis of a prediction that they, and not others, will engage in forbidden behaviour unless physically prevented from doing so. – promotes longer sentences for high-rate offenders
* Most effective for high recidivists like sex and violent offenders

Question 7

• Two main major approaches to estimate the effect of incapacitation

Answer 7

o 1. Actuarial risk assessment
 More technically sophisticated – based on mathematical models that use individual and social characteristics and behaviour to predict recidivism
o 2. Structured clinical judgements
 Based on the dynamic or present circumstances and behaviours of the offender which may be affected through treatment
 Debated how effective this is

Question 8

o Three strikes sentencing

Answer 8

 Used in 27 US states and western Aus. Suggests you get a longer prison sentence if you’ve been convicted three times prior
 Applies to 4.7% of the California prison population
 Can end up serving 25 years to life for minor offences due to their record
 These laws ignore the fact that criminal career trajectories are not monotonic. A convict first apprehended at 15 and then again for a second and third offence 10 years later has likely reached the end of their criminal activities
 Means a lot of low level criminals who are young and non-violent fill the prison population and suggests people are being imprisoned not based on the seriousness of their crime but for their imperfect based

Question 9

• Retributive Justice

Answer 9

o Underlying foundation of many western legal systems
o Is the default sentencing strategy used in the absence of other guidelines
o Strategy is seen as vital to satisfy people’s desire for justice and fairness
o Some argue retributive justice should reflect equality – in that crimes of a certain severity always get a certain sentence length
o Others argue the sentence should be individually tailored to the offender
o Neither approach is concerned with future outcomes, but the severity of the punishment – and making sure this is proportionate to the crime committed
o Gives rise to victim participation – as they express the level of harm they experienced to determine the severity of punishment others should face
o Critics of this approach suggest it attempts to control an offenders behaviour bia punishment – but doesn’t determine whether the offender would behave differently if given the same opportunity again – so punishment does not reduce the maladaptive behaviour but rather the offender who simply learns to avoid punishment
o It also leads to overcrowded prisons and early release reduces punishment intensity which would promote the offender to try again

Question 10

• Deterrent Sentencing

Answer 10

o Based on the idea the punishment should be sufficient to prevent future instances of the offence
 1. Sepcific deterrence – aims to dissuade or prevent a particular offender from committing crimes
 2. General deterrence – aims to discourage other potential offenders from engaging in similar unlawful conduct
o The death sentence is a form of deterrent sentence

Question 11

o Shortcomings of deterrence

Answer 11

 Gap between the theory and implementation of specific deterrent goals
* Eg. Although participants agreed with the htoery of specific deterrence, in practise they imposed punishments in conformity with notions of just deserts
* A meta-analysis found overall harsher canctions had no deterrent effect on recidivism and more severe santions actually produced a slight increase in recidivism (smith et al., 2002)
* Compared with community sanctions, lengthiet sentences increased recidivism more so than shorter sentences. Finally, intermediate sanctions demonstrated no relationship with reoffending – this was consistent across all ages, genders and races
o High visability
 Deterrence need high visibility police enformcement as it increases the belief that one could be caught
 Personal experience tends to reduce the perception offending behaviour is risky
 Roadside breath testing intro’s in the 80’s is a way to increase visability
 Found a 24% decrease in single vehicle accidents which was maintained for 5 years in Aus with road-side breath tests. There was 12 % fewer accidents for every 1000 drivers tested.
 So, it is the likelihood of apprehension plus imposition of the sentence that deters criminals
o Deterrent measures also appear ineffective in corporate offenders
 Fines are often inadequate penalties as the fine sometimes is less than the benefit for an organisation
 Some companies would rather pay the fine for the benefit of breaking the rule (eg. Working on a public holiday)

Question 12

• Rehabilitation

Answer 12

o Supports changes that can and should be brought about in the crimainls behaviour in the interests of the community and the criminal
o Based on the assumption that social, psychological, psychiatric or other factors outside a persons direct control, which have whoolly or partly determined/influenced their actions and can be accuratelt identified (to then be treated)

Question 13

CBT as a rehabilitation process

Answer 13

o CBT looks to be effective
 Particularly in juvenile courts
* 1. Focuses on altering behaviour and developing prosocial skills
* 2. Integrates the juveniles families into problems -solving
* 3. Maintains a flexability to engage a variety of intervention approaches
* 4. Well-structured and intensive in their application
 The distinction between rehab and treatment often blurs. Some programs seek to reduce criminal propesntiies by changing the attitudes, cognitive patterns, social relationship and/or resources of offenders. Others aim to treat offenders by addressing their underlying cognitive deficiencies and adjustment with deviant conceptions, which can be treated.
 CBT has been effective in treating violent and sex offenders

Question 14

• Applications of therapeutic jurisprudence

Answer 14

o Emerged in the US in the late 80’s seeking to make the law a theraputetic agent
o Suggests that the legal system, at all stages of contact should encourage prosocial lifestyles by incorporating social science knowledge to determine methods that would promote the offender’s psychological well-being
o Therefore, the legal system is better if addicts for example are encouraged to plead guilty and therefore accept treatment
o This perspective pushes for outside of jail rehavilitiation and non-custodial sentences
o Has been used in drug offenders in the US and Australia and shows a reduction in drug use in defendants who go through these treatment courts versus standard ones

Question 15

• Restorative Justice

Answer 15

o Aims to reestablish victims, offenders and communities following an offense.
 sentencing circles
* first roginated by first nations in Canada
* Evidence suggests that recidivism can reduce by 50% with this method in a sample of sex offenders
 Indigenous Courts
* Type of circle sentencing
* Sentencing considers input of cultural and community factors
* Can be effective in reducing crime but some question if this is a form of reverse racism
* Other criticisms are that costs of circle sentencing and integrating indigenous elements into the courts exceed those of standard court sentencing and that some communities may have unstructured discretion in dealing with offenders, leading ot inconcistent outcomes
 Reintegrative shaming
* Suggests that shaming an offender weakens their bonds with society and amplifies the risk of their disobedience
* But this approach ssuggests offenders should be labelled as good people who engaged in bad conduct
* It supports the social wellbeing of those affected by crime and healing takes priority over punishment
* The idea is that emphasis is placed on the crime/problem instead of the person so avoids stigmatising the offender
* Also offers an opportunity for an offender to apologise
 Victim-offender mediation
* Vicrim and offender are brought face to face with a trained facilitator
* 9 out of 10 times the offender will apologise, negotiate and pay restitution and tell the victim what happened
 These approaches are common in juvenile courts
 Evalutations of these methods consider
* 1. Conference participants satisfaction with the process
* 2. Their satisfaction with the outcome
* 3. The acceptance of responsibility byt the offender
 79% of people who went through the conferencing process were satsifed with how their case was handled, 89% were happy with the outcomes and 94.2% of offenders reported having a propert understanding of the harm caused to the victim after the conference. 77% of victims reported believing the offender knew the impact they had after the conference
o Maxwell and Morris 2001 – showed Family Group Conferencing in NZ reported that when offenders show remorse and agreed with the outcomes of their case recidivism was lower.

Question 16

• Legal Decision Making in Dealing with Offenders

Answer 16

o Many facts deemed inadmissible in determining whether the defendant is cuplable of the crime charged, may be admitted into evidence and given considerabtion during the penalty phase of the trial when a jnudge determined the appropriate sentence
o Fairness and impartiality dictate that judges weigh factors that lesson or increase the responsibility of the offender and potentially reduce the sentence, as well as aggravating factors that heighten the serious nature of the crime and increase the severity of the sentencing consideration
o A guilty plea by an offender may reduce a sententence, similarly, a defendant who displays remorse and confesses may receive a reduced sentence
o Some researchers posit that judges arrive at sentencing determnations by adding or subtracting the effects of aggravating or mitigating case factors

Question 17

• The influence of Victim Impact Statements

Answer 17

o Provides and account for for the emotional trauma, psychological, physical and/or financial harm suffered by the victims of their immediate families
o Permits the victim to articulate their feelings about the crime and potentially influences the punishment
o Can increase victim satisfaction in the legal system
o Some people argue that sentencing should remain impartial and should not impose differential penalities for the same offense based on victim worth/impact
o Important to consider the influence of emotional content;
 Testimony by a victim often fails to adequately convey the brutality of an offense, nor can it reflect upon the status of the convicted offenders future dangerousness.
 Can bias sentencing

Question 18

• Emotionally Arousing Evidence

Answer 18

o Emotional arousal can augment estimates of probability for guilt or innocence of the defendant

o Douglas Lyon and Ogloff 1997 showed this.
 Heightened emotional arousal in response to gruesome evidence has been shown to evoke more conviction -prone decision-making in mock jurors. When evidence arouses jurors to experience strong negative affective states, such as anger, their perception of the strength of particular items of evidence may be enhanced
 Suggests arousing evidence like victim impact statements may bias people in favour of the death penalty

Question 19

o Judgements about sentences may be influenced by sentimental reactions

Answer 19

o Judgements about sentences may be influenced by sentimental reactions to personal characteristics of the victims and their families embedded in victim impact evidence. Eg. Mock jurors believed tha the immediate family of the victim suffered more when the victims personal character was described in more respectable ways (eg. Loyal husband vs loner). Similarly ock jurors punished a defendant more severely when the victim was characterised as innocent versus a dangerous criminal, even though the defendant had no information about the victim when the crime was committed.

Question 20

• Mortality Saleince and Terror Management Theory

Answer 20

o Rosenblatt et al 1989; wondered about the impact of exposing judges to thoughts about their own death. 22 minupal court judges were asked to set bail for a prostitude. They were given the usual info about her arrest and past behaviour and asked to set a dollar amount for bal. Prior to assessing the prostitues case, half the judges were asked to think about their own death – or would would happen to them as they physically die and how it would feel. The difference in bail set for each group was large. Judges who thought about their own death set a higher bail price than the control group
o This difference was predicted by terror management theory; which states that humans are unique in knowing that they will die and that this knowledge is terrifying. People do several things to buffer the terror; generally by thinking their perspective is right and that those who think differently are wrong. So, judges held more firmly to their worldview that people who break the law should be punished and therefore this view was reflected in bail prices
o Mortality salience encourages people to invest in and defend their cultural world view and stimulates in-group identification.
 People in out-groups such as offenders who are not law abiding and whose behaviou may threaten the in group – may be treated more punitively

Question 21

• The influence of Judicial Characteristics on Sentencing Offenders
  o Race, Gender and Age-Influence

Answer 21

 Male and Black offenders are 50% more likely to receive longer prison sentences than those awarded to similarly situated women and white offenders
 Male judges sentence female offenders less harsly than similarly situated male offenders
 Female defendents received more lenient sentences than males, females are more lenient to women
 Judicial characterstics such as judges age, years of experience on the bench, previous employment and prosecturoe and political viewpoint and philosophy about punishment may account for some of the observed disparity in sentences
 10% of the variation in sentencing could be explained by objectively defined facts of the case. Over half the variance was attributed to certain features of the presiding judge

Question 22

o Judgemental biases and Heuristics

Answer 22

 Magistrates decision strategies have been modelled best by the matching heuristic; in which magistrates utilse only a single criterion in reaching decisions, and different magistrates used different criteria. For example, one might rely on a procescotrs recommendation, whereas another consideration the age of the defendant leading to an inconcistency across the magistrates decisions.
 Illusory Caution also has an effect. When indiviuals attribute baseless causality to a stimulus because of its alience over other stimuli. Eg. Point of view bias

Question 23

o The attitudinal Model

Answer 23

 Posits that judges interpret trial facts in reference to their own ideological viewpoints and value systems. In addition, they rely on personal intuition and then “work backward” to check that the decision is not logically flawed. This model empathically rejects the assumptions that judges are emotionally deteched and consider only the application of the law to the case at hand. Instead, it proposes that each judged ideological attitudes and personal intuition most likely contain bias and prejudice which will influence the decisions

Question 24

 The cogial-cogntive process

Answer 24

 The cogial-cogntive process model takes into account indivudal differences in personality variable, especially right wing authoritarianism and value priorities of the decision maker. This model has been applied to examine wheterh sentences are based on retributive justice motives by examining four elements
* Perceived repsonidibl
* Persceived seriousness or negative valence
* Deservingness
* Affective and cognitive reactions
 A study to explore this, presented participants with hypothetical scenarios involving offenses like domestic violence plagiaris shoplifting and resisting police. Results indicated that perceived responsibility for an offense influenced its perceived seriousness (or negative valnce) and together, responsibility and seriousness influenced the degree to which the offender was seen to deserve the penalty imposed (Feather 1996)

Question 25

 Attribution Theory

Answer 25

• Another theory of judicial reasoning
• Suggests judicial analysis of offenders behaviour and the appropriate punishment is guided by sentencing guidelines and the judges unique attributions
• Attribution theory account for ways in which individuals appraise the cause of behaviour eg internal or external
• They can further assess controlloabilitye (whether the crime was under the offenders control or not
• And stability (whether the crime was accidental or intentional) which are essential components of decision-making model
  o When behaviour is attributed to internal, controllable and stable causes, the accused is viewed as more responsible and treated in a less neutral fashion
  o If criminal acts are attributed to external, less controllable and unstable causes theyw ill evoke more empathy and more leeway in allowing mitigating testimony, wider scope in cross-exam and possible and acquittal or lighter sentence

Question 26

 Affect Control Theory

Answer 26

• More recent model of judicial decision making that extends attribution theory and encompasses identity assessment, behaviour attributions and emotionas and draws on affect control theory
• Suggests that legal decision making is influenced not only by attributional analysis of the crimes cause but y the sentencers affective reaction to the appraisal of the identity assessment (eg. Remorsefulness)
• If the convicted is more emotional, there should eb a lessening of judicial negative affect
• In this emotion is a core factor in decision making
• If an offense is blameworth and the violation threatens or actually harms values related to the judges personal self, status of internalised group, angier is aroused and the judges cogntiions and emotions foster reactions against the violator (aka terror management response)