During the colonial period, specifically, before America attained independence, juries were the ultimate sentencers with significant power. Most offenses were capital, and the consequence was conviction and death. Scalable punishments were few, mostly because prisons were few up to the end of the eighteenth century. The impact of a guilty verdict on a criminal was understood by jurors because of the simplicity of the criminal law and the structure of its penalty, in addition to being due to the process of their selection. They were plucked from the rich social classes. Rarely were measures taken to ensure that those serving on the jury were qualified. Thus said, juries were hardly exemplary as they are today. They were instructed to give a verdict without explanations as is today, however, unlike now, they were allowed to find both the law and the fact. It was a common occurrence for the jury to ignore the law.
The arrival of the nineteenth century brought with its penitentiaries, flexible punishments, and rehabilitation centers. From this, a more complex set of outcomes originated. Judges were now assigned the role to determine the applicable law, while juries were only allowed to only find facts. This led to the evolution of substantive criminal law, although many of the prosecutions were still state-based. With the changing jury came diversity as minorities and women were allowed to serve. Said groups were also allowed to own property. As people gained more access to education, professional lawyers and judges unfolded, leading to the declination of powers of the jury.
Time went by, and a separate variance of labor arose between juries and judges. Judges conducted the sentencing while the jury decided responsibility. Drafting exercises ensured that the jury was selected based on their knowledge concerning the issues. That was easy in a diverse, urbanizing country. Judges became more active, gaining preference over the jury. By the twentieth century, rehabilitation was the dominant penal philosophy and an unfixed sentencing mechanism assumed control. Comparing to a physician, a judge’s role became therapeutic. The crime was a moral problem, and its solution was assigned to the criminal justice specialty. Between the trial and the sentencing period, different standards of proof unfolded, further defining the roles of the juries and the judges. Law students took part in the trial stage, which consisted of proof beyond a sensible doubt, formal evidentiary, and constitutional rights.
Rules of evidence did not apply in the sentencing stage. Judges needed to get all the information they required to conduct a verdict. Reviewing of sentences was uncommon in American courts unlike in other countries. This prevailed in the federal government until 1987 when the guidelines became functional. It was the same case in many states, where only a few had legal appeal systems. In most cases a judge’s verdict was final. Confident with judges as experts of sentencing, Congress took a step back. They only intervened on public demand to increase a penalty. Judges were allowed discretion to sentences within the lawful range. The broad sentencing range left it to the judges to differentiate the seriousness of crimes in similar categories. However, even the judges did not determine the full sentence period, as parole was available if the defendant’s conduct was commendable while imprisoned (Baxter, 1993).
Based on the observation, judges held the most power compared to other players. Standards were applied and each case was solved in its individual caliber. If standards developed ever, it was from the experiences in day-to-day cases. In time there was a desperate call to correct the unspecific system. To respond, some states administered sentencing guidelines. This introduced a new player, an administrative agency. Thereby, a sentencing commission developed, assigned the role of generating sentencing standards. The role of said commission varied in different states. In 1984, the federal government developed a sentencing reform that was attacked in later years. A sentencing reform act of1984 (SRA) was passed, which created the United States sentencing commission and abolished parole. The role of the commission was to put in place what the congress had been unable to do; rationalizing sentencing free of political influence (Albonetti, 1997).
Around the same time, the dominant disciplinary philosophy changed. Some members of the academy and the public championed a ‘limited retribution’ philosophy. With that, the position of the sentencing command moved to the congress, commission, and the public to a degree. Ironically, this gave more sentencing accessibility to Congress and the public. The punishment a criminal deserved would be the subject of a talk show or a blog. It was however unclear whether the institutional perceptions of the SRA would supplement the judges or become a mandatory system. The role the commission decided to play would impact the institutional division of labor immensely. Due to several factors, it became apparent that the mission of the commission leaned toward mandatory, and its guidelines would be the determining factor of sentence outcomes. Congress followed this up with a series of more penal mandatory decrees. The trends that followed corresponded to the guideline movement (Tonry, 2013).
More lenient judges faced the wrath of the public. They were criticized for being soft. Efforts to extinguish judicial discretions and reduce the judges’ authority aligned. In 1981-1982, over a dozen bills were presented which aimed to alter the jurisdiction of federal courts. Following this, Congress passed a series of decrees which were incompatible with the SRAs approach. With time the congress intervened in the determination guidelines directly. It commanded the commission to change various parts of the guidelines. Its role continued to grow while federalizing the criminal role. The guidelines and composition of the commission aggravated these trends. The commission was not made up of sentencing experts as required. There was no one with the experience of passing sentences. It was described by many as political and pro-prosecution (Steffensmeirer, 2000).
With the lack of prowess and independence in the commission, Congress frequently influenced its decision-making. Furthermore, in its initial drafting, the commission made several troublesome decisions. This resulted in dire consequences in the institution. The guidelines were complex and were made to reduce judicial discretion. They were also high in severity, more penal than they had ever been. The commissions claim that the guidelines were based on existed data lacked credibility as the analysis conducted was skewed. It had based its sentencing on the already in place congress minimum sentence, thereby having ones even higher than what the congress had set. This increased the number of defendants who were sent to prison instead of probation, thus increasing the prosecutors’ power. He/she could now threaten longer sentences to inspire guilty pleas. The commission implemented a “real offense system” allowing a judge to consider the past criminal record of the defendant in addition to the current offense
All these considerations were aimed at increasing the sentence. They were cut from a different cloth and did not correlate with the purpose of the sentencing. They also had a negative impact on the judges. Federal judges, who’d have played a major role in ameliorating the impact of the guideline became passive and played by its rules. This was partly because the judges who had come onto the bench after the guidelines were put in place lacked any other perspective but the one put in place by the commission. They were made to believe that the guidelines were formulated by experts and that they were based on empirical data, they believed this even though the data in the guidelines was incomprehensive (Tonry, 2013).
Some congress members were however not satisfied with the functioning of the guidelines even though they were implemented like they were mandatory. Therefore in 2003, Congress passed the PROTECT Act. This sought to demote any judge defiant to the guidelines by employing a mechanism that reported non-compliant judges. This resulted in a division of labor that allowed prosecutors immense power to determine sentences by what they charged or what they preserved for sentencing. Congress could also determine sentences by mandatory minimum sentences. The judges’ power was reduced even more. The commission and the congress had become the only sources of sentencing rules. Retribution became the superior philosophy even though the SRA was required to apply the other purposes of sentencing (Tonry, 2013).
A turn of events happened in 2005 when the supreme court of the United States submitted United States v. booker, which stated that the guidelines were not constitutional due to their impact on the jury. The court discovered that the guidelines breached the Sixth Amendment since they compelled judges to find facts with established results of increasing a defendant’s sentence beyond what the jury required. Herby, the jury became significant yet again; albeit without the massive impact it had in the colonial period. This defect of the constitution necessitated that the mandatory guidelines be severed. It stated that the guidelines were to be advisory, not compulsory. This in effect restored the judicial powers. The judge was required to put into consideration the history and characteristics of the offender, and similarly, consider rehabilitation and prevention of future crime by the offender (Barman, 2017).
Everything remained the same at first, and the factors that influenced the decision went on. Many judges found it hard to this new way and preferred to continue to follow the guidelines. However, in a series of cases post-Booker, the court reinstated that it meant what it had said. It further clarified that a judge could reject outlines of the guidelines, deeming them unreasonable. In the following years, retribution remained an important reason for sentencing.
As time progresses, the punitive approach from the 1980s persists. It is evident that the principles on which the justice system is based require reshaping. The number of incarcerated defendants has risen alarmingly over the last two decades, with over 2 million Americans in different federal and state prisons. Minority communities, especially Latinos and blacks have experienced the worst hit, accounting for about 58% of the total incarcerates. This has been a major contributing factor to poverty in mentioned communities, as the providers languish in prison, leaving their families lacking and vulnerable. They are prone to stigma and ridicule from others and in most cases, they find solace in drugs and crime, following in the steps of their predecessors.
The US government spends more than 80 billion dollars annually on the prison system. Why spend such amounts of money keeping people away in cages, where their productivity is zero, just to punish them. In this scenario, both parties end up losing. The government loses much-needed resources while the prisoners lose time and chances to better themselves. What if there were better ways to solve criminal cases and reduce the financial strain that is inescapable with the ongoing criminal justice system. This money would go into other areas that are in need of development like the housing sector.
While many correctors are familiar with judicial terms like equity and pragmatism, most are not acquainted with the concept of parsimony. This principle states that punishments should not be issued, which exceed the corrective purposes for which they were intended. This concept can be borrowed from the times before the final years of the twentieth century, and it proposes that justice should be issued with an aim to rehabilitate not punish. Sentences should be tailored based on the defendant’s personal profile, age, history and background, and should gear towards transforming the offender into a responsible citizen, equipped with values and resources that help them fit back into society. In 2016, Frederic block, a federal judge of eastern New York exercised parsimony in his sentencing. He issued one-year probation to a woman arrested at john Kennedy airport with 600grams of cocaine. In his statement, he spared the woman an array of collateral consequences that come with felony charges. He further observed that these consequences serve to punish defendants after the completion of their prison term.
Incarceration results in life-changing alterations that have a massive negative effect on the afterlife of imprisonment. With their rights to own property and licenses stripped away, a bad reputation precedes former prisoners. This makes it difficult for them to get stable jobs or fit back into society. This raises the question of whether the retributory tendencies of the current justice system are a tool to build society or to break it further. Does anyone gain from penal-oriented justice measures?
It is however recommendable that several state governments have made efforts to reduce their prison populations. Among these are New York, Hawaii, Alabama and California. The federal government should borrow from the means used by these states and implement measures to reduce numbers in federal prisons. Racial disparities are both a cause and a consequence of incarceration. Minorities are more involved in criminal activities and there’s a possibility that this has its roots in racial discrimination. Thus, eradication of privileges towards some races may help to promote integration, and possibly reduce crime.
Evolution is a continuous process. American sentencing has undergone various changes since its establishment. It continues to change. It is obligatory for all stakeholders to ensure that the incoming changes serve to benefit individuals and ultimately, America as a whole. This will incorporate measures such as good parenting, counseling, workshops, and job provisions, to mention but a few. Following these and other measures will guarantee a law-abiding generation, hence suppressing the possibility of imprisonment. America will finally be rid of its top incarcerator reputation.
Albonetti, C. A. (1997). Sentencing under the federal sentencing guidelines: Effects of defendant characteristics, guilty pleas, and departures on sentence outcomes for drug offenses, 1991-1992. Law and Society Review, 789-822.
Bagaric, M., Wolf, G., & Rininger, W. (2018). Mitigating America’s Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing. Lewis & Clark L. Rev., 22, 1.
Baxter, L. G. (1993). Rule of Too Much Law? The New Safety/Soundness Rulemaking Responsibilities of the Federal Banking Agencies. Consumer Finance Law Quarterly Report, 47, 210.
Berman, D. A. (2017). Sentencing guidelines. Reforming criminal justice: A report of the Academy for Justice on bridging the gap between scholarship and reform, 4, 95-116.
Frase, R. S. (2019). Sentencing Guidelines in American Courts: A Forty-year Retrospective. Federal Sentencing Reporter, 32(2), 109-123.
Gertner, N. (2010). A short history of American sentencing: Too little law, too much law, or just right. J. Crim. L. & Criminology, 100, 691.
Steffensmeier, D., & Demuth, S. (2000). Ethnicity and sentencing outcomes in US federal courts: Who is punished more harshly?. American sociological review, 705-729.
Tonry, M. (2013). Sentencing in America, 1975–2025. Crime and Justice, 42(1), 141-198.
Vitiello, M. (2006). Sentencing Guideline Law and Practice in a Post-Booker World: Introduction.
Von Hirsch, A. (1983). Recent trends in American criminal sentencing theory. Md. L. Rev., 42, 6.