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Popko, Hessick talk sentencing on KJZZ

February 27, 2009

Professors Zig Popko and Carissa Byrne Hessick, of the Sandra Day O'Connor College of Law, discussed sentencing issues in the criminal justice system during a segment on Here and Now, a program on radio station KJZZ, on Wednesday, Feb. 23.

The professors were interviewed in studio by program host Steve Goldstein, following his taped segment with Paul H. Robinson, one of the world's leading scholars on criminal law. Robinson will give the First Annual Edward J. Shoen Leading Scholars Lecture, "The Ongoing Revolution in Punishment Theory: Doing Justice as Controlling Crime," at noon on Thursday, Feb. 24, in the College of Law's Armstrong Hall.

Hessick, who teaches Criminal Procedure, Criminal Law, and a seminar on sentencing law and policy, talked about her research into sentencing and whether the nation's judges consider offenders' "good acts," as well as their "bad acts."

"Every jurisdiction in the United States says prior bad acts should be used to make the sentence higher, and far fewer say prior good acts, service in the military or doing charitable work, should result in a lower sentence," she said.

Conversations about sentencing issues are beginning to take root in legislatures and prosecutors' offices, Hessick said.

"One of the great things about the criminal justice system right now is it's starting to take a look at sentencing, instead of saying that's something we take a look at after the trial, we don't really look too closely at it, legislators, prosecutors, and even academics are thinking about what sentencing should be in particular cases and for particular crimes," she said.

"Unfortunately, when some political actors get involved, specifically when legislators get involved, it seems the public's desire for sentences gets translated into harsher sentences," Hessick said.

Popko, director of the College's Post-Conviction Clinic and a former federal public defender, agreed that sentencing has becoming politicized, noting that, Congress has intervened many times with decades-old guidelines from the U.S. Sentencing Commission aimed at helping federal judges come up with "the right sentences."

"Congress has kept its thumb on the scale constantly," he said.

Starting in 2000, a series of decisions by the U.S. Supreme Court began the revamping of how some sentences should be approached, Popko said.

"There's now more of a role for juries in sentencing, at least with respect to facts that are going to be used with which to justify some kinds of enhanced or higher sentences," he said.

"I'd like us to look at jury sentencing," Popko continued. "Right now, it's a strict dichotomy - juries find guilt or innocence on the facts now with respect to at least some sentences, and judges impose the sentences. Lawyers are even prohibited from talking about the possible sentences, except in death cases, obviously."

Earlier in the program, Robinson, the Colin S. Diver Professor of Law at the University of Pennsylvania Law School, told Goldstein that only one part of the Model Penal Code, upon which a majority of states have codified their criminal law codes, has been amended since it was written in 1962. That change has to do with the basic purposes of sentencing and how judges should interpret the code.

In most cases, sentences do little to deter crime, he said.

"The problem is we're not very good at consistently punishing offenses," Robinson said. "Other than homicides, most offenses have very low capture rates, 2 to 10 percent, and when the capture rates are that low, the target audience looks at the situation, and whether the threatened penalty is three years or five years, it isn't going to make any difference to them. That's just not a relevant factor."

"Incapacitation is different, incapacitation really does work, and you really can prevent offenses by putting people in prison," he said. "The difficulty is it turns out we really are pretty bad at judging who's going to commit an offense in the future."

Another difficulty, especially in hard economic times, is equal distribution of punishment, Robinson said.

"When you start putting caps on prisons, for example, and you have to decide, `We just can't afford to have this many prisoners, we've got to somehow figure out how to release 300 here or 3,000 there,' midstream, to change the punishments that are imposed because of financial considerations makes it quite difficult to keep relative amounts of punishment fair," he said.

To listen to the program, click here.

Janie Magruder,
(480) 727-9052
Sandra Day O’Connor College of Law