Criminal Law

How Are Crimes Punished?

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Crimes are punished according to the seriousness of the act, and often take into consideration the prior criminal history of the defendant.

Both the federal system and the states divide crimes into two broad categories: Misdemeanors and felonies, which are more serious. (Infractions, such as traffic tickets, are generally not thought of as criminal offenses, though they can result in similar punishments, such as fines.)

What is the Purpose of Punishment?

Legal scholars, judges, and lawmakers—and the public—do not agree on the answer to this question. Ask any one member of these groups, and you’ll likely get these responses:

  • We punish to deter future crimes. Under this theory, punishment serves the twin goals of preventing the wrong-doer from offending again (at least while in prison), and serving as a model to others, who presumably will take heed and not commit the crime themselves. As to the latter point, this assumes that nascent criminals act according to their pleasures and pains—that they will weigh the consequences of a criminal act, balancing them against the benefit the act may bring, and hedonistically decide that the crime isn’t worth the benefit. Working to rehabilitate criminals fits into this theory, as a reformed criminal is no longer tempted to reoffend.
  • We punish to exact retribution. This approach punishes criminals because they deserve it, having morally offended society. The goal (though not necessarily the reality) is to “let the punishment fit the crime.” This theory assumes that the criminal possesses free will, has chosen a path of crime, and must now suffer his “just deserts.”

You’ll notice basic differences between these approaches. Deterrence looks forward, punishing in order to avoid future crime by the defendant and others; retributionists look back, punishing according to the moral failure of the defendant. Those in the deterrence camp understand people as acting according to their pleasures and pains; retributionists consider us all to be rational beings who possess free will.

Which Punishment Theory Applies in My State?

Not surprisingly, criminal codes throughout the states and the federal system are not uniform in adopting one or the other approach to punishment. That’s because Americans themselves have not uniformly chosen one or the other theory of punishment. At any one time in our history, one or the other approach may have been ascendant. Today, the punishment scheme of even a single state will reflect both an aim to deter, and a desire to punish.

In the 1960s, the Model Penal Code (a system of laws meant to serve as a model for legislators) provided for rehabilitative punishment—punishment that aimed to deter future crime. Accordingly, the drafters suggested that criminals receive” indeterminate” sentences, which were sentence ranges, such as “three to six years.” After the prisoner served the minimum term, it was up to the prison officials, in the form of a parole board, to decide whether to release the prisoner. That decision rested largely on the prisoner’s rehabilitation success.

Many states adopted this approach, also giving judges considerable discretion in setting the initial range. But these days, nearly all states have abandoned indeterminate sentencing, providing instead for specific, “determinate” sentences, whose entire length has to be served (minus “good time” credits for good behavior while in prison). The switch followed society’s disillusionment with the rehabilitative process, a rise in crime, an increased interest in retribution, and dissatisfaction with a model that allowed for a disparity among sentences for similar crimes.

Misdemeanor and Felony Offenses

Misdemeanor crimes are less serious than felonies, and carry less serious punishments. In most states, incarceration in a local jail can be imposed for up to one year (Ohio misdemeanors carry up to two years’ in jail, however). By contrast, felonies involve more than a year of incarceration, and this time is usually spent in a state prison. In the federal system and those states that have the death penalty, this punishment is reserved for the most heinous crimes.

Besides incarceration, judges have several other tools at their disposal when meting out punishment:

  • Probation. For some crimes, a judge can order the defendant to serve a term of probation, during which time the defendant must meet certain conditions, including meeting with a probation officer, remaining crime-free, abstaining from alcohol and drug use, avoiding the company of certain people, and performing community service. Probation can be imposed after the defendant has served a portion of a jail sentence, or it can take the place of incarceration. Failure to follow the terms and conditions of probation can result in a revocation hearing, and a return to jail.
  • Fines. Many criminal punishments carry fines, which are paid to the court.
  • Restitution. When crimes affect the material and personal well-being of other people, judges will often order the offender to pay money to the victims, to compensate them for their losses or injuries.
  • Parole. In the states that still have indeterminate sentences, prisoners can be released prior to the maximum prison term if the parole board deems them ready to reenter society. They are supervised for a period of years, until the end of the determinate period. In the federal system, certain prisoners are subject to parole (see The Parole Process for more on federal parole).
Questions to Ask Your Attorney
  • What is the punishment for the crime I’m charged with? Is there any leeway?
  • Can the defense attorney and the prosecutor decide what the punishment will be as part of a plea bargain?
  • What’s the reputation for sentencing of the judge who will hear my case? Can we choose another judge?
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