Sentencing and Incarceration

Two contrasting images of the public have emerged from the literature on public attitudes toward sentencing and incarceration: a punitive public that demands long prison terms and a merciful public that supports community-based sanctions after considering the seriousness of the offense and the perceived character and blameworthiness of the offender. Although politicians and the media insist that the public wants to impose tougher and longer prison sentences, research shows that public views about appropriate sentences are much more complex. For example, although the majority of the public claims courts are too lenient, research using detailed cases consistently finds that the public imposes less severe punishment than judges or sentencing statutes. This disjuncture in attitudes occurs because the public relies on easily recalled violent crimes to answer general questions about its satisfaction with the court’s sentencing. Moreover, the public wants more severe sentences for violent offenders but prefers community-based sanctions that can restore and rehabilitate nonviolent offenders.

Thus, politicians and scholars must examine how the public arrives at sentencing attitudes to obtain a more accurate view of the public’s demands. This entry describes the findings from numerous studies that have examined whether public judgments about appropriate sentences are consistent with sentencing laws and practices. To fully understand the public’s conception of justice, this entry examines the inferences and beliefs that contribute to citizens’ views: their knowledge about sentencing options and prisons, their views of the primary goals of sentencing, and the effects of context and information on their decisions.

Public Knowledge about Sentencing, Parole, and Prisons

Misperceptions of criminal justice statistics abound. The average member of the public tends to underestimate the severity of the sentencing process as well as the parole system. When asked to estimate the average sentence for a particular crime, many people provide a response that is lower than the actual level. This finding has emerged from research conducted in the United States, England, Canada, and Australia. The public also is unaware of which crimes require prison time and of the minimum or maximum prison time required by criminal statutes. These underestimates underlie public attitudes that there should be more congruency between the assigned sentence and the actual number of years served. In those countries that have parole, most people assume that almost all offenders get parole, when in fact only a small fraction are released from prison early. Although offenders sentenced to life often are released on parole after serving on average a decade or more in prison, the public overwhelming agrees that a life sentence should mean that the offender serves his or her natural life in prison.

Since only a small percentage of the public has ever visited a prison, perceptions of prison life tend to be inaccurate, and the majority of the uninformed public indicated that prisons are too easy on offenders. Based on perceived public desires, several states have reduced many amenities for prisoners. However, when the public is informed about a variety of amenities and asked whether each specific amenity should be retained or eliminated, a different picture of public attitudes emerges. The majority of the public wants to retain educational, vocational, and psychological programs and also supports supervised visits with families, telephone calls, and air conditioning. The public is more selective in providing entertainment and recreational amenities. About 62% to 75% of the public would retain arts and crafts, basic television, basketball, conjugal visits with spouses, and college education programs. The majority of the public, however, supports eliminating boxing or martial arts, cable television, condoms, cigarettes, and pornography, including magazines such as Playboy. The public supports amenities that have rehabilitation potential or are useful for managing inmate behavior. The public, however, does not want prisoners to have amenities for free that law-abiding, low-income citizens cannot afford.

The public is not well-informed about community-based sanctions. Research conducted in several countries, including England, Canada, Australia, the United States, and Germany, found that the majority of the public can provide a correct definition of community service but knows little about other community-based alternatives such as conditional sentences, probation, house arrest, and electronic monitoring. The public performed at chance level in identifying the correct definition of a conditional sentence. When asked about community-based sentences, over two-thirds of adults mentioned restitution, while only one-third spontaneously mentioned probation as an alternative. Moreover, about one-quarter is com-pletely unaware of probation as an alternative. Furthermore, research shows that the majority of respondents who were informed about the alternatives chose community-based sanctions, whereas uninformed respondents chose imprisonment. Thus, when the public is informed of the existence of alternatives to incarceration, support for imprisoning offenders declines considerably. These findings indicate that the public is unfamiliar with community-based sanctions but supports such sanctions, especially for nonviolent felonies. This lack of familiarity is not surprising given that community-based sanctions are not well publicized in the media and that prisons are much more salient, especially with the growth in the number of prisons and prisoners in recent decades.

Impact of Information on Crime and Justice

Though the public lacks much knowledge about sentencing, research suggests that educating the public may change its top-of-the-head punitive responses. Based on deliberative polling after participants took part in a televised weekend event on the nature of crime and justice, the more punitive respondents, after receiving accurate information about crime and the justice system, became much less punitive and more supportive of community-based alternatives, and this attitude change lasted over a 10-month period. Researchers found that respondents who initially lacked knowledge about crime and justice were more likely to change their attitudes than those who were better informed.

General versus Specific Questions about Sentencing

How the question is asked also affects the public’s response. Opinion polls conducted in all Western nations over the past 25 years have routinely shown that approximately three quarters of the public says that sentences should be harsher. Research shows, however, that people recall atypical violent crimes when answering this abstract question. When asked about specific crimes, public views change. It is important, therefore, to pose specific rather than general questions to the public. This can be clearly illustrated with respect to the “three strikes” laws in the United States. Researchers have found strong general support for this law, which would mandate a lifetime prison sentence for an offender convicted of a serious felony for the third time. When specific cases are examined, the strong support for the “three strikes” statute remains only for offenders with three violent felony convictions. The public generally prefers a more flexible approach to sentencing that allows individualized judgments for each specific case and is uncomfortable with the mandatory lifetime prison sentence for repeat felony offenders.

An examination of the public’s responses to detailed cases rather than general questions also is useful in understanding what goals the public wants to achieve in sentencing offenders. When asked to choose between punishment and rehabilitation, at least two thirds of Americans chose rehabilitation and prevention programs. At least two thirds of the public, when asked general questions that do not force a choice, assigned substantial importance to all five of the major goals of sentencing: retribution, rehabilitation, individual deterrence, general deterrence, and incapacitation (prevention of future crimes during the time in prison). Deterrence is achieved by providing offenders with severe enough punishment so that convicted offenders (individual) or potential offenders in society (general) refrain from committing future crimes. Thus, general questions do not provide sufficient information about what the public wants sentences to achieve.

When specific, detailed cases are used, support for sentencing goals varies by offenders’ criminal history; offenders’ social, substance abuse, and employment history; and the type of crime. Much research suggests that the public supports proportional justice, in which the severity of the sanction matches the severity of the harm done and the culpability of the offender. Research shows that retributive justice is the main goal that the public wants to achieve for serious violent crimes. However, felony murder laws and other laws that hold offenders who committed the crime (principals) and those who helped in less direct ways (accessories) to the same punishment also are incongruent with public views of justice. The public prefers that principals receive longer prison terms than accessories and thus negates the law’s equality principle in favor of proportional retributive justice.

At the same time, for nonviolent offenders, the public supports restorative justice, which now is part of several countries’ sentencing schemes. Restorative justice emphasizes community-based sanctions that allow offenders to be reintegrated as productive, law-abiding citizens more easily but that require offenders to accept responsibility and make amends for the harm done, express sincere remorse, and provide restitution to the victims. Thus, community service and restitution that are directly related to the harm done are examples of restorative sanctions. Combinations of community-based sanctions can be used to achieve restorative justice. Both restorative justice and retributive justice are based on fairness, though restorative justice considers fairness toward the victim, the offender, and society. Evidence for support of restorative justice is quite consistent throughout the world. For example, numerous studies have asked respondents to choose between community-based alternatives and prison in sentencing specific nonviolent criminal offenders; the majority of the public across European and North American countries chose community-based alternatives. Of the community-based sanctions, restitution and community service orders have the most support because these sanctions address the needs of the victim and allow close monitoring of the offender in the community, whereas standard probation is the least supported. For several years, from 1989 to 2000, the International Crime Victimization Survey asked respondents to sentence a repeat 21-year-old burglar. Almost three fourths of New Zealanders; about two thirds of residents of Australia, Britain, Canada, Finland, and the Netherlands; about half of U.S. citizens and Latin Americans; 40% of residents of Asian countries; and about 30% of residents of Africa recommended community-based alternatives (typically a community service order). In 15 Eastern European countries, endorsement of community service rather than imprisonment for the repeat burglar has increased across time, with a divided public in 1992, but by 2000, about 72% of the public endorsed community service. These findings show widespread support for restorative justice for the serious property crime of burglary and suggest that Europeans have the strongest support, whereas less industrialized countries have the least support, for community-based alternatives.

Mandatory Minimum Prison Terms and Retributive Justice

In recent decades, politicians have enacted statutes that provide longer mandatory minimum prison terms for many offenses or longer prison terms for repeat offenders. These statutes are based on the goal of retributive justice—providing punishment that is proportional to the seriousness and harmfulness of the offense. The public shows strong support for punishing adult offenders based on seriousness of the crime, particularly those convicted of serious crimes of violence. However, based on vignette and video studies, the public prefers more flexibility in meting out justice than retributive justice systems allow. The majority of the public attends to individual characteristics, such as the offender’s potential to be rehabilitated, employment status, criminal history, and so forth. For example, in response to realistic videotaped sentencing hearings, laypersons, compared with judges (and with statutorily required mandatory minimum prison terms), gave less severe sentences and were less likely to choose prison sentences for a repeat residential burglar, a cocaine dealer, and a mugger who caused an elderly woman to fall and break her hip when he stole her purse. Moreover, when offenders had a substance abuse problem and asked for treatment, laypersons overwhelmingly recommended court-mandated substance abuse treatment, whereas judges were more likely to recommend prison terms to achieve retributive justice or deterrence. Thus, researchers have characterized the public as supporting “individualized proportionality” in that the public assigns harsher punishment to more severe crimes but also considers the individual circumstances surrounding the crime in meting out justice.

In the past three decades, the U.S. government has engaged in a “war on drugs”; national survey data indicate that the public is quite skeptical that this government effort will reduce crime rates and believes that the sentences are too severe. For example, the U.S. federal sentencing guidelines’ mandatory minimum prison time for drug possession is incongruent with the public’s rehabilitation orientation and preference for probation for marijuana possession. Public leniency is shown in both hypothetical and real cases; many cases of defendants charged with possession of cocaine, crack, or marijuana have resulted in jury nullification. Interviews with jurors who acquitted defendants despite proof beyond a reasonable doubt indicate that these jury nullifications occurred because jurors believed that the federal sentencing guidelines imposed an unjust, too severe punishment. The majority also is willing to recommend treatment programs to small-time drug dealers but want prison terms for major drug dealers or small-time drug dealers who fail a second time. Americans also disagree with the provision in U.S. sentencing guidelines that adds a mandatory 9 years to drug-trafficking sentences when the drug is crack cocaine; they believe that drug traffickers should receive similar prison terms regardless of whether they are selling heroin, cocaine, or crack cocaine. The public supports punitive penal policies only when violence is associated with the drug trafficking and in these cases wants longer sentences than the U.S. sentencing guidelines allow.

Although a strict retributive justice approach provides sanctions that are proportional to the amount of harm done and does not consider the offenders’ criminal history or background, the public supports harsher sentences (e.g., prison time) for recidivists than for first-time offenders. At the same time, the public is more forgiving than federal sentencing guidelines. When the guidelines’ recidivist premiums are compared with the public’s sentences assigned to detailed cases with a different number of prior convictions, the public appears to recommend shorter prison terms for recidivists than the guidelines allow. Moreover, the public overwhelmingly does not support life in prison without parole for an offender whose third strike is a felony property crime. The public clearly wants recidivists to receive more severe punishments, but its response is more tempered than recidivist-sentencing statutes.

References:

  1. Applegate, B. K. (2001). Penal austerity: Perceived utility, desert, and public attitudes toward prison amenities. American Journal of Criminal Justice, 25(2), 253-268.
  2. Roberts, J. V., & Hough, M. (2004). Changing attitudes to punishment: Public opinion, crime and justice. Cullompton, UK: Willan.
  3. Roberts, J. V., & Stalans, L. J. (2004). Restorative sentencing: Exploring the views of the public. Social Justice Research, 17(3), 315-334.
  4. Roberts, J. V., Stalans, L. J., Indemaur, D., & Hough, M. (2003). Penal populism and public opinion: Lessons from five countries. Oxford, NY: Oxford University Press.
  5. Robinson, P. H., & Darley, J. M. (1995). Justice, liability & blame: Community views and the criminal law. Boulder, CO: Westview Press.
  6. Rossi, P., & Berk, R. (1997). Just punishments. New York: Aldine de Gruyter.