Counseling Chapter 8 Eight Criminal Punishments Learning Objectives After Reading This Students Will

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CHAPTER EIGHT

CRIMINAL PUNISHMENTS

Learning Objectives

After reading this chapter, students will be able to:

2. Explain the relationship between the Sixth Amendment and sentencing provisions that

3. State the present status of the Federal Sentencing Guidelines.

5. Explain why the death penalty was declared unconstitutional in Furman v. Georgia.

7. State the present rule on the imposition of life without parole sentences for juveniles.

9. Define “three strikes” laws and list the common characteristics of such laws.

Lesson Plan

Correlated to PowerPoints

I. Punishments used in early England

A. The criminal punishments used hundreds of years ago in England and elsewhere

in Europe were very severe.

B. Practices used in England to avoid severe penalties

1. Benefit of Clergy

3. Transportation

C. Punishment used in early America

2. Capital crimes

II. The Constitutional Limitation on Punishment

Learning Objective 1: Know the text of the Cruel and Unusual Punishment Clause.

Learning Objective 2: Explain the relationship between the Sixth Amendment and sentencing

provisions that permit a judge to determine when a criminal defendant should be given an

enhanced sentence.

Learning Objective 3: State the present status of the Federal Sentencing Guidelines.

Media Tool

Cruel and Unusual Punishment

6-13

14–16

http://www.youtube.com/watch?v=Cfirwzi_Muc

o YouTube video discusses giving Nutraloaf to prisoners and

lawsuits related to this practice.

o Discussion: What requirements should prisons have regarding the

food given to prisoners? Is it cruel and unusual punishment to

feed inmates Nutraloaf? What has the Supreme Court said about

such cases?

A. Eighth Amendment

1. The Eighth Amendment of the U.S. Constitution provides that “excessive

bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.”

Class Discussion/Activity

Select a number of current news stories that report the sentences imposed

on convicted offenders. Discuss with students whether they think the

sentences are just and in proportion to the crime of conviction. This

exercise can actually occur at different times throughout the course of a

semester as stories break both locally and nationally. Discuss the

proportionality requirements as they apply to these sentences.

2. Proportionality principle (Solem v. Helm, 1983)

a. An objective evaluation of the appropriateness of a punishment for

a particular crime.

b. Includes considerations of

i. The gravity of the offense and the harshness of the penalty

ii. Sentences imposed for similar crimes in the same

jurisdiction

iii. Sentences imposed for the same crime in other jurisdictions

c. Decisions of the U.S. Supreme Court since Solem was decided cast

some doubt on the status of the proportionality test.

d. State sentencing laws

i. All sentences imposed in state criminal trials are subject to

the Eighth Amendment.

Class Discussion/Activity

When the Eighth Amendment of the U.S. Constitution was ratified in

1791, what forms of punishment do you think the Framers intended to be

excluded by the cruel and unusual punishment clause?

B. Sentencing and jury trials

1. Apprendi v. New Jersey, 2000

2. United States v. O’Brien, 2010

3. Blakely v. Washington, 2004

a. Applied the reasoning of Apprendi, which involved specific

4. United States v. Booker, 2005

5. Sentences may raise a problem under Blakely or Booker in either of two

ways:

6. Most courts considering the constitutionality of sentences that were final

before Booker was decided have held that the decision was not applicable

to such sentences when collateral review was sought under statutes like 28

U.S.C. § 2255, the federal post-conviction relief statute.

III. Corporal Punishment–Assignment 5

Learning Objective 4: Identify the procedures a school official must follow before imposing

corporal punishment on a student.

Media Tool

Corporal Punishment in Schools

http://www.youtube.com/watch?v=uPADltNd-_o

o CBS video discusses the implementation of corporal punishment

in schools and disparity based on demographics.

o Discussion: Should schools be allowed to use corporal

punishment on students? What factors does the Supreme Court

consider in such cases? Does it matter that corporal punishment

appears to be implemented more often for certain genders and

races?

17-20

1. Mutilations, such as cutting off ears and various types of branding

B. Most corporal punishment was discontinued many years ago in the United States.

What If Scenario

Tiffany is a student at South Elementary School. After talking back to one of her teachers, she is

sent to the principal’s office and is paddled. After hearing about the paddling, her parents sue

the school district for violation of their daughter’s due process rights. The school district

permits corporal punishment without a prior determination of some violation of school rules by

the student. What is the likely outcome of the lawsuit?

C. The use of corporal punishment in schools

1. Ingraham v. Wright

a. No general rule prohibits corporal punishment in schools.

2. Sandin v. Conner

a. Although the Eighth Amendment may not apply to school

3. Excessive corporal punishment by a school official can give rise to a

Fourteenth Amendment substantive due process claim.

What If Scenario

A prisoner is chained to a hitching post for seven hours without a water break or bathroom

break. Why does this treatment violate the Eighth Amendment?

D. The use of corporal punishment in prisons

2. Unlike school students, prison inmates have none of the “community and

3. Eighth Amendment claims by prison inmates have both objective and

subjective requirements.

IV. Capital Punishment–Assignment 4

Learning Objective 5: Explain why the death penalty was declared unconstitutional in Furman

v. Georgia.

Learning Objective 6: Identify at least three groups of persons who cannot be given the death

penalty.

21–23

18–19

Learning Objective 8: Describe the kinds of evidence that must be produced if the prosecution

seeks imposition of the death penalty after a jury has found the defendant guilty of the crime

charged.

Media Tool

Capital Punishment: Prager University

http://www.youtube.com/watch?v=gXTQ8ixxG64

o Dennis Prager discusses the issue of capital punishment.

o Discussion: Why is it difficult to separate capital punishment

from emotion? Why is it important that the law separate itself

from emotion? What are the strengths in the video? What are the

weaknesses?

1. Death penalty laws in all states were struck down as “arbitrary and

capricious” by the U.S. Supreme Court.

B. Gregg v. Georgia

1. The Supreme Court upheld the death penalty statute passed by the Georgia

legislature.

a. State statutes enacted responded to Furman v. Georgia by

addressing these issues:

i. The state statute must determine which crime (or crimes)

could be punished by the death penalty.

C. Death penalty laws after Furman v. Georgia

1. Ring v. Arizona, 2002

3. Smith v. Spisak, 2010

5. Ford v. Wainright, 1986

7. Baze v. Rees, 2008

9. Kennedy v. Louisiana, 2008

Class Discussion/Activity

Organize students into groups and assign each group a state that has the

death penalty to research. For what types of offenses can the death penalty

be assigned? What are the statute’s aggravating and mitigating

circumstances? What is the judge’s and jury’s role in deciding if a

convicted offender receives the death penalty? How is the death penalty

administered? How many prisoners are on death row? How often are

prisoners actually executed? Students can present their findings to the

class. Some of this state-specific information can be located on the website

for the Death Penalty Information Center. What would students include in

a statute as aggravating circumstances to justify imposition of the death

penalty, and as mitigating circumstances to weigh against its imposition?

D. Although polls show that the American public continues to generally support the

death penalty, the number of death sentences handed out by juries has declined

markedly since 1998.

1. Reasons given for the decline in the use of death penalty by juries include:

a. Fears by jurors that they are executing the wrong person

b. Life without parole alternatives

c. States repealing the death penalty

E. Prosecutors have in the past used the threat of seeking the death penalty to obtain

guilty pleas or information about the crime.

V. Imprisonment as Punishment–Assignment 1

Learning Objective 7: State the present rule on the imposition of life without parole sentences

for juveniles.

A. Conditions of confinement have resulted in reforms in England and in the United

States.

B. One severe problem in the United States is overcrowding.

1. Many reasons for overcrowding, but the core of the problem is drug-

1. Violates the cruel and unusual punishment clause

a. Graham v. Florida, 2010

b. Miller v. Alabama, 2012

What If Scenario

Tony has no job, is homeless, and has only a small amount of income in the form of Social

Security disability money. He is an alcoholic and has mental health problems. Tony has

numerous fines that he has not paid for a variety of minor tickets. Can the city hold Tony in jail

because he is unable to pay his fines? Why/why not?

D. Can indigents be held in jail to work off their fines?

1. The U.S. Supreme Court held that other ways of collecting fines are

available and that the Equal Protection Clause of the U.S. Constitution is

violated by permitting a person with money to pay fines, whereas a person

without money has to work off a fine in jail or prison.

VI. Fines and Forfeiture as Punishment

A. Fines must not be excessive.

B. Generally, analysis of punishment under the Cruel and Unusual Punishment Clause

requires application of the proportionality test.

C. Fines can be difficult to collect if the offender is unemployed or has a low-paying job.

To improve the rate of collection of fines, some or all of the following methods are

used:

1. Allowing offenders to pay their fines on an installment plan

3. Computerizing record-keeping systems

5. Turning collection over to private collection agencies

D. The concept and use of forfeiture go back to early English law.

E. Seizing the property that was used to commit a crime is a strong deterrent to crime.

1. Instrumentalities of the crime

3. Proceeds of the illegal acts

I. The Internal Revenue Service can also seize under court order the property of people

charged with or convicted of crimes.

VII. Career Criminals and the Repeat Offender–Assignments 2 and 3

Learning Objective 9: Define “three strikes” laws and list the common characteristics of such

laws.

Media Tool

Career criminal arrested for the 128th time

https://www.youtube.com/watch?v=XPQeWe5r018

o News report about a career criminal arrested for the 128th time

o Discussion: What should society do with people such as the man

in the video? What are the challenges when dealing with career

criminals? Discuss the pros and cons of each potential solution.

26–28

1. Operate under statutes providing additional and longer sentences for repeat

offenders

2. Establish special career-criminal units in the offices of police and prosecutors

4. Discourage plea bargaining, which could lessen prison terms, unless the

suspect incriminates associates

C. Several repeater cases have come before the U.S. Supreme Court in recent years, with

different results.

1. Rummel v. Estelle

3. Lockyer v. Andrade

Class Discussion/Activity

Have students discuss the implications of the “three strikes” law. Have

them research states that are currently using this law. Pay special attention

to any increase in violent crimes. For example, since this law was

implemented, have assaults on police officers increased? Have high-speed

police chases increased? If a person facing his/her “third strike” is about to

be stopped by the police and they know that they will now go to prison for

a very long time, will they be more likely to use this type of violence to

escape?

D. “Three strikes” laws

1. Most states and the federal government have had laws that provided for

increased punishment for multiple felony convictions for many years.

3. California’s law is among the harshest “three strikes” laws for three reasons:

a. The third or “trigger” conviction may be any felony, not

necessarily one for a violent crime.

b. The first two strikes may be convictions for any “serious” felony,

though not necessarily a violent crime.

c. A sentence of 25 years to life must be assessed on each count, with

multiple counts served consecutively.

d. Parole may not be considered until the entire mandatory sentence

is served.

e. The Supreme Court has not held these laws to be “grossly

disproportionate.”

f. State courts may overturn a sentence under state constitutional

provisions.

What If Scenario

A 38-year-old employed husband and father of three children under the age of 18 is arrested

for his seventh public intoxication. The prosecutor wants to incarcerate the defendant for 1

year in county jail. You want to keep him working and supporting his wife and children. What

alternatives to incarceration would you suggest?

Lecture Notes

As students work their way through this text, you may want to incorporate a regular exercise

where they look up the range of sanctions for the crimes they are studying in a specific chapter.

Chapter 8 can be an introduction into how to go about doing that research. The material covered

in Chapter 8 provides a policy and philosophical context in which to evaluate the sentence.

Punishments can range from a small fine to capital punishment. What the procedures call for and

what is actually handed down might be very different. For example, a crime of felony theft might

Some state penal codes have a section, usually at the beginning, that defines which punishments

are imposed for certain levels of felonies based on the seriousness of the felony; for example,

first, second, or third degree, or simple and aggravated. This section also defines punishments for

certain levels of misdemeanors. Other states define the punishment in the section of the penal

code that defines the elements of each offense. Students therefore need to become familiar with

the organizational structure of their state’s criminal laws. Some states place the laws that govern

probation in the Criminal Procedure Code. Others have a combined penal and procedure code.

Part of the learning experience in researching which criminal sanctions apply to which crimes is

sitting down with the statutes and getting a feel for how they’re laid out. It might be a good

Some students live in states that use sentencing guidelines. Their state’s guidelines are also

available online. Students not in guideline states may want to look at such guidelines and

Key Terms

benefit of clergy – A medieval limit on capital punishment. People convicted of a capital crime

who were entitled to claim the benefit of clergy (by the fifteenth century, anyone who could

205)

capital punishment – Inflicting deadly injury as punishment for criminal conduct. (p. 206)

cruel and unusual punishment – Under the Eighth Amendment, a limitation on punishment for

criminal conduct. (p. 207)

proportionality – An objective evaluation of the appropriateness of a punishment for a

particular crime. (p. 207)

corporal punishment – Inflicting non-deadly physical injury as punishment for criminal

conduct. (p. 212)

procedural due process – A claim under the Fourteenth Amendment that there is an absence of

fair procedures regulating state conduct. (p. 213)

substantive due process – A claim under the Fourteenth Amendment that state conduct is so

brutal, demeaning, and harmful as to shock the conscience. (p. 213)

aggravating circumstances – A consideration in imposing the death penalty that judges and

juries must make a finding of statutory aggravating circumstances to justify the penalty. (p. 215)

recidivist – One who is a habitual criminal. (p. 224)

“three strikes” laws – Laws that impose increased penalties for multiple felony convictions. (p.

227)

Assignments

1. Drug-related crime has greatly contributed to the prison overcrowding problem in the

United States. Students can use the Internet to search their state for numbers of inmates

compared to the capacity of the institutions. Have students investigate overcrowding in

their state or in a number of states. Using the Internet, students should be able to locate

the level of overcrowding as well as the types of crimes for which the inmates are

incarcerated. Are the percentages that students found similar to the percentage given in

2. Students should visit the habitual offender statutes for their state to see how punishment

can be enhanced for the repeat offender. Is it good policy to punish people for crimes

3. Have students research their state’s reporting laws for sex offenders. Do their state and

local community have laws that restrict where convicted sex offenders can live or work?

4. When President Clinton signed the 1994 Violent Crime Control and Law Enforcement

Act, the number of federal crimes for which the death penalty could be applied increased

significantly. Have students research which crimes qualify for the death penalty in their

state (if they have the death penalty). If their state does not have the death penalty, have

them research if it ever did and when it was repealed. Alternatively, students can research

several states that do have, do not have, and have never had the death penalty. Have

students discuss the reasons they believe states are different in this regard. What issues

5. Have students research the corporal punishment policy in the school district where they

received their primary education. Students can prepare a PowerPoint presentation on the

Case Analysis and Writing Exercises

1. Cases involving sexual abuse of children pose a special problem for proportionality

analysis under the Eighth Amendment’s Cruel and Unusual Punishment Clause. Such crimes

inflict not only the immediate damage of the criminal conduct, but also the likelihood of

lifetime emotional injury. On the other hand, the crime of “offensive touching” of a child is

not the same as rape or murder of that child. In Hanf v. State, 182 S0. 2d 704 (Fla. App.

2015), the defendant was sentenced to life in prison for lewd and lascivious molestation of a

child under 12 years of age. (Florida has eliminated parole for most crimes.) The criminal

conduct was “unwanted touching” of the child’s breast. The appeals court affirmed the

sentence, holding that it was not “grossly disproportionate” to the crime. What are the

relevant facts to consider when making such a determination? Is the dissent correct?

2. When he was 16 years old, the defendant and another juvenile gunned down a man

outside a Chicago park. The defendant did the shooting; the other juvenile handed him the

gun. The other juvenile pled guilty to second degree murder and was sentenced to 17.5 years

in prison. The defendant was tried for first degree murder and use of a weapon in the murder,

and convicted by a jury. He was sentenced to 50 years in prison for the murder and 50 years

for the weapon offense, the sentences to be consecutive. He would thus not be released until

he was 117 or until he died. Does Miller v. Alabama require resentencing of the defendant?

3. It is a federal crime to possess a firearm if one has been convicted of a “misdemeanor

crime of domestic violence” 18 U.S.C. § 922(g)(9). The defendant was convicted in

Tennessee state court of “intentionally causing physical injury” to the mother of his child. He

was then charged with violation of § 922(g)(9). He contended that the Tennessee statute did

not qualify as a “misdemeanor crime of domestic violence” because it could apply to a

simple touching of a victim. Under Johnson v. United States, discussed in this chapter, he

contended a “misdemeanor crime of domestic violence” required the use of “physical force”

equivalent to “violent” force. The trial court agreed, and dismissed the charges. A court of

appeals affirmed. The U.S. Supreme Court granted review. What should it decide? Does this

case present the same problem as was presented in Johnson? What kind of “physical force”

was at issue in that case? Is that what “physical force” means in the statute that prohibits gun

possession for a conviction of a misdemeanor crime of domestic violence? See United States

4. For the Excessive Fines Clause of the Eighth Amendment, we saw that the U. S. Supreme

Court has held that a fine was excessive only if it was “grossly disproportionate’ to the crime.

Consider United States v. Bajakajian, which was discussed in this chapter. Are the factors

identified by the Supreme Court in Bajakajian exclusive, or can some other factors be used

by a court to determine what is “grossly disproportionate”? What about the effect of a