22 IDEOLOGICAL AND THEORETICAL UNDERPINNINGS TO SENTENCING AND CORRECTIONAL POLICY

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AU D I OAU D I O

Reentry Programs

LEARNING OBJECTIVES:

1 .1 . Identify and discuss the philosophical underpinnings associated with correctional processes.

2 .2 . I d e n t i f y a n d d i s c u s s d i f f e r e n tI d e n t i f y a n d d i s c u s s d i f f e r e n t t y p e s o f s a n c t i o n s u s e d i nt y p e s o f s a n c t i o n s u s e d i n c o r r e c t i o n a l o p e ra t i o n s .c o r r e c t i o n a l o p e ra t i o n s .

3 .3 . Evaluate the outcomes of different sentencing schemes.

4 .4 . Apply criminological theories to different correctional processes.

5 .5 . Integrate philosophical underpinnings, types of sanctions,

W E BW E B

Labeling Theory

V I D E OV I D E O

Incapacitation

Restorative Justice

Three Strikes Legislation

S AG E J O U R N A L A RT I C L E L I N KS AG E J O U R N A L A RT I C L E L I N K

Sentencing Disparities

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sentencing schemes, and criminological theories to develop a multifaceted understanding of corrections.

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THE ORIGINAL GANGSTATHE ORIGINAL GANGSTA

It was about 3:00 a.m., and Desmond’s cellie, Tederick, was up on the top bunk, keeping watch. Desmond took out the shank hidden behind the toilet and worked it back and forth against his metal bunk. The noise from the continuous friction was loud enough to be heard in the cell but not so loud as to resonate throughout the entire cellblock.

Tederick continued to look out the cell onto the run below to see if the guard or anyone else was listening or aware of what was happening. All was quiet, including the cells next to theirs. The other inmates

knew what was going on and minded their own business if they were awake; others slept through the noise.

Tederick asked Desmond, “So, you gonna’ get him in the rec yard or in the dayroom?”

Desmond replied, “I’m going to hit him in the rec yard.”

Desmond thought about the situation and how he was going to get the blade to the rec yard. The inmate that he was going to “hit,” Cedric Jackson, was a member of an opposing gang who had been talking smack. Both Desmond and Cedric were members of small, local gangs in New Orleans; neither was affiliated with large gangs like the Crips or the Bloods.

Desmond had lived a life of poverty in New Orleans, and his father had died in prison. His mother did her best, working odd jobs and raising three kids as a single mom. Desmond’s cousin, Nate, always had a strong influence on Desmond. Nate had a car with really fly rims, he had women, he had dope, and he had respect on the streets. But now Nate was at Angola, doing real time, and he was writing letters to Desmond to take care of some “business” for him.

Tederick looked down at Desmond and said, “I thought that you wanted to go to school and hook up with that girl?”

 

 

“Yeah, that’s what I wanna do,” Desmond responded.

“Then if you make this hit on Cedric to get even for Nate, you gonna be in here for a long time; maybe you should forget about ole girl and just go to school a few years from now.”

Desmond thought about this. He considered how Nate had always had “stuff” when on the streets but was now stuck in Angola for at least another 15 years.

Desmond also thought about his “ole girl,” Angela, and all the letters she had sent him. His mom thought well of Angela and they both had seen to it that when he got out he would be able to get settled and get a job with a nearby warehouse (his mom worked there in the administrative office). Angela would even help him get started in school.

Tederick spoke again. “You know that they are really looking at giving more good time for the drug treatment programs, don’t you? The feds and the state are reducing sentences, giving more good time, and closing down prisons. . . . This is a good time to be doing time ’cause you can get out early, right?”

Desmond frowned. “Yeah, I guess so. What are you trying to say?”

Tederick shook his head. “Man, I am saying to hell with Nate and to hell with doing time for Nate. . . . You gotta do you, man, and get on with your life. Let Nate take care of his own business. Let Cedric run his mouth. He is getting shipped soon, anyway, and you can be out in 6 months if you play your cards right.” Locking eyes with Desmond, Tederick urged, “Look man, you got a girl on the outside who cares about you, a mom who can get you a job, and you might be in school within a year, or you can sit and rot some more in here. That might be what you want, but it ain’t for me, no sir!” His voice rose and he slapped his hand down on his mattress. “I am not lettin’ THE MAN take my life from me, and I ain’t letting all the wrong learning I got from the streets decide my life for me! You shouldn’t either, homie!”

Desmond snorted. “Fine, so I let him make it; I give him a break. . . . What then; what about the gang?”

“You give me the steel and I can get rid of it. I got 3 more years, but you can be out in 6 months. Do the drug program that just accepted you and do it for real; then get a real life, not this hell hole. Forget the gang; right now you do not owe them. . . . It is all square business at this point. Go further with it, and you won’t ever get out of it.”

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Desmond turned the shank over in his hands as he considered Tederick’s words. He stood, looked at his cellie, and said, “You know, I ain’t never had many real friends.” After only a moment’s hesitation, he extended the homemade blade, handle first, and dropped it onto Tederick’s open palm.

Tederick smiled. “My brother, you are doing the right thing; trust me.”

INTRODUCTION

This chapter focuses on the reasons for providing correctional services in today’s society. In considering these reasons, it is important to understand two key aspects related to corrections. First, it is helpful to be familiar with the historical developments related to punishment and corrections. Chapter 1 provided information about how our current views on correctional practices have evolved. Understanding the history of corrections helps us to make sense of today’s correctional system. This is true for legal precedent that shapes correctional policies as well as philosophical and/or political motives behind our use of correctional resources. Thus, it is the rich history of corrections that has shaped it into what we know today.

The second aspect is the need for a clear definition of the term corrections. As demonstrated in Chapter 1, this term can have many different meanings to many different practitioners, scholars, and researchers around the world. Nevertheless, it is important to be able to define the term in a clear and succinct manner so that one can correctly connect it with the means by which correctional practices are implemented and the reasons for implementing them. This is essential since this is what will provide clarity in purpose, which, in turn, should lead to clarity in action.

PHILOSOPHICAL UNDERPINNINGS

Within the field of corrections itself, four goals or philosophical orientations of punishment are generally recognized. These are retribution, deterrence, incapacitation, and treatment (rehabilitation). Two of these orientations focus on the offender (treatment and specific deterrence), while the others (general deterrence, retribution, and incapacitation) are thought to focus more on the crime that was committed. The intent of this section of the chapter is to present philosophical bases related to the correctional process. In doing this, it is useful to first provide a quick and general overview of the four primary philosophical bases of punishment (see Table 2.1). These

 

 

bases were touched upon in Chapter 1 but are now provided in more detail and with the purpose of elucidating the true purposes and rationales behind the correctional process.

Retribution

Retribution is often referred to as the “eye for an eye” mentality, and it simply implies that offenders committing a crime should be punished in a like fashion or in a manner that is commensurate with the severity of the crime that they have committed. As discussed in Chapter 1, retribution is the justification for punishment by the concept of lex talionis. It is a “just desserts” model that demands that punishments match the degree of harm that criminals have inflicted on their victims (Stohr, Walsh, & Hemmens, 2009). Thus, those who commit minor crimes deserve minor sentences, and those who commit serious crimes deserve more severe punishments (Stohr et al., 2009). This model of punishment is grounded in the idea that, regardless of any secondary purpose that punishment might be intended to serve, it is right to punish offenders because justice demands it. In essence, society has an ethical duty and obligation to enforce the prescribed punishment; otherwise the sentencing process is based on lies and exceptions.

It is important that students not equate

retribution with the mere practice of primitive revenge; retribution has many distinctions that set it apart from such a simplistic understanding. Retribution is constrained revenge that is tempered with proportionality and enacted by a neutral party. This neutral party is required to stay within the bounds of laws that afford offenders certain rights despite the fact that they are to be punished. As we have seen in Chapter 1, the use of this formalized method of punishment emerged out of the chaotic times where blood feuds and retaliation for private wrongs abounded. Retribution was grounded in the notion that the offender (or the offender’s family) must pay for the crime committed. The need to keep feuds from escalating between aggrieved families was important among the ruling class. Thus, retribution was designed to adhere to a rational process of progressive sanctions, separating it from mere retaliation.

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PHOTO 2.1 One example of retribution

would be having someone who

vandalized property work to repair the

damage he or she caused.

In addition, when we hold offenders accountable for their actions, we make the statement that we (as a society) believe that offenders are free moral agents who have self-will. It is the responsibility of the offender, not society, to pay for the crime that has been committed. Once this payment (whatever the sanction might be) has been made, there is no further need for punishment. While this type of approach works well in justifying punishment of offenders who are culpable and cognizant of their crime, it is not appropriate for offenders who have mental deficiencies and/or mitigating circumstances that remove fault from them. It is in these cases where retribution loses its logical application within the punishment or correctional process.

Incapacitation

Incapacitation simply deprives offenders of their liberty and removes them from society with the intent of ensuring that society cannot be further victimized by them during their term of incarceration. The widespread use of incapacitation

techniques during the 1990s is purported by some experts to be the cause for the drop in crime that was witnessed after the year 2000. Though this has not been proven, the argument does seem to possess some potential validity. Regardless, it has become increasingly clear that the use of mass incarceration efforts simply cannot be afforded by most state budgets. This has led to more increased use of community corrections techniques and techniques of selective incapacitation.

V i d e o L i n kV i d e o L i n k Incapacitation CLICK TO SHOW

Selective incapacitation is implemented by identifying inmates who are of particular concern to public safety and by providing those specific offenders with much longer sentences than would be given to other inmates. The idea is to improve the use of incapacitation through more accurate identification of those offenders who present the greatest risk to society. This then maximizes the use of prison space and likely creates the most cost-effective reduction in crime since monies are not spent housing less dangerous inmates.

Deterrence

 

 

Deterrence is the prevention of crime by the threat of punishment (Stohr et al., 2009). Deterrence can be general or specific. General deterrence is intended to cause vicarious learning whereby observers see that offenders are punished for a given crime and so they are discouraged from committing a similar crime due to fear of punishment. Specific deterrence is simply the infliction of a punishment upon a specific offender in the hope that that particular offender will be discouraged from committing future crimes. For specific deterrence to be effective, it is necessary that a punished offender make a conscious connection between an intended criminal act and the punishment suffered as a result of similar acts committed in the past.

Stohr et al. (2009) note that the effect of punishment on future behavior also must account for the contrast effect, a notion that distinguishes between the circumstances of the possible punishment and the life experience of the person who is likely to get punished. As they explain it,

For people with little or nothing to lose, an arrest may be perceived as little more than an inconvenient occupational hazard, an opportunity for a little rest and recreation, and a chance to renew old friendships, but for those who enjoy a loving family and the security

©iStockphoto.com/ISignature Collection

PHOTO 2.2 It is hoped that placing

offenders in such noxious circumstances

will deter them from further criminal

behavior. There is no actual empirical

proof that this is the case.

of a valued career, the prospect of incarceration is a nightmarish contrast. Like so many other things in life, deterrence works least for those who need it the most. (2009, p. 10)

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Thus, it appears that deterrence has as

 

 

much to do with who is being deterred as it does with how deterrence is being implemented. However, research on the effectiveness of deterrence has generally been mixed, even during the mid-1990s to about 2006 (Kohen & Jolly, 2006), when the use of increased incarceration was touted to be the primary cause for lowered crime rates. It is still seemingly impossible to determine whether a deterrent effect, or simply an incapacitation effect, was being observed.

Rehabilitation

Rehabilitation implies that an offender should be provided the means to achieve a constructive level of functioning in society, with an implicit expectation that such offenders will be deterred from reoffending due to their having worthwhile stakes in legitimate society—stakes that they will not wish to lose as a consequence of criminal offending. Vocational training, educational attainment, and/or therapeutic interventions are used to improve the offender’s stakes in prosocial behavior. The primary purpose of rehabilitation is solely the recovery of the offender, regardless of the crime that was committed. In other words, if it is deemed that offenders are treatable, and they are successfully treated to refrain from future criminal behavior, rehabilitation is considered a success, and concern over the severity of the past crime is not considered

important. With this approach, it is feasible that offenders with lesser crimes may end up serving more time behind bars than a person with a more serious crime if it is determined that they are not amenable to rehabilitative efforts.

The rehabilitative approach is based on the notion that offenders are provided treatment rather than punishment. Punitive techniques are completely alien to the rehabilitative model; the goal is to cure the offenders of their criminal behavior, much as would be done with a medical or mental health issue. As a result, sentencing schemes under a rehabilitation orientation would be indeterminate, a term that will be discussed in more detail later in this chapter. Indeterminate sentences have no specific amount of time provided upon which offenders are released from custody. Rather, a minimum and maximum amount of time is awarded, and, based on offenders’ treatment progress, they are released prior to the maximum duration of their sentence once rehabilitative efforts have been determined a success.

Restorative Justice

Restorative justice is a term for interventions that focus on restoring the health of the community, repairing the harm done, meeting victims’ needs, and emphasizing that the offender can and

 

 

must contribute to those repairs. This definition was adapted from restorative justice advocate Thomas Quinn during his interview with the National Institute of Justice in 1998. More specifically, restorative justice considers the victims, communities, and offenders (in that order) as participants in the justice process. These participants are placed in active roles to work together to do the following: (1) empower victims in their search for closure, (2) impress upon offenders the real human impact of their behavior, and (3) promote restitution to victims and communities.

V i d e o L i n kV i d e o L i n k Restorative Justice CLICK TO SHOW

Dialogue and negotiation are central to restorative justice, and problem solving for the future is seen as more important than simply establishing blame for past behavior. Another key factor to this type of correctional processing is that the victim is included in the process. Indeed, the victim is given priority consideration, yet, at the same time, the process is correctional in nature, as offenders must face the person whom they victimized and the offenders must be accountable for the crimes that they committed against the victim.

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Thinkstock Images/Stockbyte/Thinkstock

PHOTO 2.3 No-contact visitation often

consists of a glass partition between both

parties. Each person uses the phone

receiver as a means of communicating

with one another.

Reintegration

Reintegration is focused on the reentry of the offender into society. The ultimate goal of reintegration programs is to connect offenders to legitimate areas of society in a manner that is gainful and productive. When used inside correctional institutions,

 

 

this approach emphasizes continued contact between offenders and their families, their friends, and even the community. This approach is set against the backdrop realization that the overwhelming majority of offenders will ultimately return to society. While reintegration efforts do emphasize offender accountability, the use of reintegration processes is focused on ensuring that the offender has a maximal set of circumstances that, at least initially, diminish the need or desire to engage in crime by cultivating the connections that the offender has to legitimate society. Reintegration efforts are intended to reduce recidivism among offenders. During the past few years, there has been an upsurge in national interest in offender reentry programs, which, inherently, are all reintegrative in nature.

TYPES OF SANCTIONS

It is through the use of intermediate (graduated) sanctions, various types of probation, incarceration, and the death penalty that various types of punishments (also known as sanctions) are meted out. While the public perhaps identifies prison as the final outcome for criminal offenders, the reality is that few offenders go to prison. Rather, the overwhelming majority are placed on probation or on some type of community supervision. Indeed, prisons

and jails tend to hold only one-fifth to one- fourth of the entire offender population. However, chronic offenders and those who commit serious crimes tend to be given some period of incarceration.

Problems in determining the appropriate sentence for offenders are noted in the literature and have been the focus of at least one influential Supreme Court ruling. In 2005, the Court held in United States v. Booker that federal judges no longer were required to follow the sentencing guidelines that had been in effect since 1987. The Court held that federal judges now must only consider these guidelines with certain other sentencing criteria when deciding a defendant’s punishment. Because of this ruling, and because of the trend toward alternative sanctions, there has been an observed trend toward more use of indeterminate sentencing (Debro, 2008). This also is consistent with much of the push for reintegrative efforts that has been observed throughout the nation.