Sentencing and Corrections

Jan 11, 2015

Skim assignment 1
Judges consider 6 things when sentencing
o 1. Punishment
o 2. Deterrence
o 3. Rehabilitation
o 4. Protection
o 5. Restitution
o 6. Public Perception
when youre a judge it has to be your goal that when people
walk out of your courtroom it was FAIR
o In every case these things arent always weighed or weighed evenly, it
depends on the circumstances of the case. Analyze these things on
a test

January 25, 2016

Contempt- punishable up to 5 days in jail and 1500 fine.
o 3 kinds of contempt
Direct- you did something right in front of the judge (threatens
judge, etc.)
Indirect- you did something but you did it outside of my
presence (fail to appear for subpoena most common form)
Hybrid- judge ordered you to go do something you didnt do it
o If a jury overturn contempt on appeal judge gets punished
You fine an attorney for up to 1500 for failing to perform lawful order CCP
177.5
Restitution
o 1. Victim- actual victim restitution, can be any number that the victim
can substantiate (lost wages, counseling, medical bills etc.)
o 2. State for victims of violent crimes
Probation
The Basics of Criminal Sentencing
Fines, Fees and Restitution
Majority of criminal defendants receive nonprison sentences
The most common and best-established nonprison sanctions are fines and
probation
For all sanctions, one key but often implicit issue is the purpose of punishment
that the sanction is intended to fulfill.
Fines
o Fines are not the same as Fees- UNDERSTAND THE DIFFERENCE
Fines are discretionary with the judge
o Mary Ann Moody v. State
Issue: Is a standard practice of extracting a set fine from
persons accused of writing bad checks on the pain of suffering a
full criminal prosecution for failure to do so comports with the
Equal Protection Clause of the 14th Amendment to the
Constitution of the US
Holding: NO
o Collection of fines remains challenging unless resources are committed
to track payment and implement follow-up punishmnts, including
incarceration

Collection of fines can be expensive and require a substantial backup

system, including sanctions
o Fines are more likely to be used for low-level offenses and low-risk
offenders
o The largest fines are geneally imposed in healthcare fraud and
antitrust prosecutions.
o Some states and the federal government have enacted specific
directives to order restitution to victims of particular offenses
o In 1996 congress enacted the Mandatory Victims Restitution Act which
mandates that restitution be ordered in full in certain cases to each
victim, regardless of the offenders economic situation. Restitution isnt
meant to punitive but rather to make the victim whole.
o Day Fines: The underlying concept of day fines is that punishment by
a fine should be proportionate to the seriousness of the offense and
should have roughly similar impact in terms of economic sting on
persons with differing financial resources who are convicted of the
same offense.
Probation
o Probationary sentences typically release the offender into the
community after sentencing but restrict the offenders freedom and
actions.
o Probationary sentences are by far the most common type of criminal
sanction imposed
o Probationary sentences involve two closely related issues: First what
are the acceptable conditions of probations and second, what are the
procedures and consequences for violation of those conditions.
o Violation Response Procedures
Emergency Violations: Involve behavior that requires the
immediate arrest of the offender in order to ensure public
safety. Emergency violations include but are not limited to
Imment threat by the offender of physical harm to self or
others
House arrest violations
For sex offenders violations of specific conditions directly
related to the crime
Non Emergency Violations
Involve behavior that does not indicate the need for
immediate arrest of the offender in order to ensure
public safety. Non-emergency violations include:
o A new conviction for any felony
o Break of curfew
o Positive drug test
o Etc
Formal vs Informal Probation
Formal- you have to report to probation officer
Stay Away order- you cant do that to married couples
o Probation vs parole
You are subject to search any time of day on parole, probation
you have to have a search term
Parole is much more difficult than probation
o Registration
Sex
Arson
o

Drug
Gang
Collateral Consequences
Felony Disenfranchisement
In recent years, states have cut back on voting
restrictions on those with criminal convictions, currently
48 states prevent inmates from voting
Felony disenfranchisement has been justified on a
number of grounds, some have claimed felons violate
the implicit social contract and should therefore be
excluded from voting. Among the more practical and
frequently raised arguments are potential election fraud
by convicted felons.
Immigration- possibility of deportation. If you sell drugs your
getting deported. If you possess probs wont be deported unless
its rly bad. Violent crimes you probably will be deported
Asset Forfeiture- when you are purchasing things with your
illbegotten gains WE CAN TAKE IT
Financial Aid
No Guns, No vote

Monday February 1, 2016

When considering deterrence, consider (1) impairment, (2) impulse (3) mental health,
because really do criminals think when acting criminally? Are they considering
punishments?
If you fail to show up or pay your fines, you get a CIVA assessment
Prop 47-look into it read more. Some misdemeanors can only be punished up to 90
days, you are entitled to appointed council (cant afford lawyer we will give you one).
If the officer has a fear rthat the conduct will continue or pose a danger to
themselves or others they can be arrested.
You can also get charged with a misdemeanor through the warrant process.
FINE
FEES
JAIL
PROBATION
Crimes that are misdemeanor in CA can be suprising: child molestation (can be felony
but isnt automatic), domestic violence, assault w a deadly weapon,
Probation is really important, read the nutshell and outline!
Felony Sentencing- Next week!

Monday February 15, 2016

When you have felony jail, every case has a sentencing triad (16-2-3; 2-3-4)
1. Punishment
2. Reabilitation
3. Restitution
4. Deterrence
5. Protection
6. Public Perception
7. Economics

felony jail is better than state jail

dangerousness of conduct is really important when deciding what to punish

with

readt the stuff on three strikes- find the case three strikes people vs romero
gives judges authority to strike strikes

o LEARN THE FACTORS

Reading
CALIFORNIA ADULT FELONY SENTENCING
Presentence Investigation Reports
o Presentence Investigation: probation officer must conduct a
presentence investigation and submit a report to the court before it
imposes sentence unless (i) the court finds that the info in the record
enables it to meaningfully exercise its sentencing authority under 18
U.S.C. 3553 and the ct explains its finding on the record (ii)
Restitution- if law requires restitution the probation officer must
conduct an investigation and submit a report that contains sufficient
information for the ct to order restitution
o Interviewing the defendant- Probation officer who interviews a
defendant as part of a presentence investigation must, on request,
give the defendants attorney notice and a rx opportunity to attend the
interview
Presentence Report
o 1) Applying the sentencing guidelines: presentence report must: (a)
identify all applicable guidelines and policy statements of the
sentencing commission:
(b) calculate the defendants offense level and criminal history
category
(c) state the resulting sentencing range and kinds of sentences
available;
(d) identify any factor relevant to:
(i) the apporopriate kind of sentence or
(ii) the appropriate sentence within the applicable
sentencing range and
(e) identify any basis for departing from the applicable
sentencing
o 2) Additional Information: the presentence report must also contain the
following information:
(A) The defendants history and characteristics, including:
(i) any prior criminal record
(ii) the defendants financial condition; and
(iii) any circumstances affecting the Ds behavior that
may be helpful in imposing sentence or in correctional
treatment
(B) verified information, stated in a nonargumentative style,
that assesses the financial, social, psychological, and medical
impact on any individual against whom the offense has been
committed
(C) when appropriate, the nature and extent of nonprison
programs and resources available to the defendant;

(D) when the law provides for restitution, information sufficient

for a restitution orderm
(E) Any other information that the ct requires
o 3) Exclusions: The presentence report must exclude the following:
(A) any diagnoses that, if disclosed, might seriously disrupt a
rehabilitation program
(B) Any sources of information obtained upon a promise of
confidentiality and
(C) Any other information that, if disclosed, might result in
physical or other harm to the defendant or others
(d) Disclosing the report and recommendation
(1) Time to Disclose: unless D has consented in writing,
probabtion officer must not submit a presentence report
to the ct or disclose its contents to anyone until the D
has pleaded guilty or nolo contendere, or has been found
guilty
(2) Minimum Required Notice: The probation officer must
give the presentence report to the D, the Ds attorney,
and attorney for the gov at least 35 days before
sentencing unless the defendantwaives this minimum
period.
(3) Sentence Recommendation: by local rule or by order
in a case, the court may direct the probation officer not
to disclose to anyone other than the court the officers
recommendation on the sentence
(E) Objecting to the Report
(1) Time to object, within 14 days after receiving the
presentence report, parties must state in writing any
objections,
(2) Objecting party must provide copy of objections to
opposing party and to probation officer
(3) After objections- probabtion officer meets w parties
to discuss objections
(4) At least 7 days before sentencing, the probation
officer must submit to the court and to the parties the
presentence report and an addendum containing any
unresolved objections, the grounds for those objections,
and the probation officers comments on them
READ: US SENTENCING GUIDELINES MANUAL 6A1.1,
6A1.2(policy statements)
o One critical issue involving presentence reports is who gets to see
them and when- confidentiality is important and allows for a full
exploration of the defendants situation.
Modern view is that presentence report should be shared w
defendant & defense counsel.
o Rule 32 prohibits probation officer from submitting the presentence
report to the judge before guilty plea (or finding of guilt by jury) unless
D consents in writing. The idea is that judge should not be biased in
accepting or rejecting the plea based on what is in the report
The Role of the Probation Officer in Guideline Sentencing
o The probation officer has a duty directed by the federal rules to
compute and describe what the officer believes to be the appropriate

sentence under the guidelines, as well as what, if any, departure the

officer believes is appropriate
o Under guideline sentencing, probation officers role as the cts
independent investigator is critical, although the scope of the
investigation may be determined by the ct
o The officer is to provide the court with relevant, objective, and
verifiable information that will assist in the selection of a proper
sentence
o Probation officers are employees of the ct, hired and fired by
sentencing judges they write reports for
Before imposing any sentence the court must address any victim of a crime of
violene or sexual abuse who is present at sentencing and must permit the
victim to speak or submit any information about the sentence.

Monday February 22, 2016

Mandatory supervision- different than probation

Determinate and indetermine sentencing
o Determinate- you have a specified number of days or years in custody
o Indeterminate- there is no definite amount of time when your
sentenced (i.e. you get 25-life for 2nd degree murder. Parole board will
then decide if you can get let out)
You do not get good behavior credit on a life time sentence, you
HAVE to do the lower number first (like 25-life, must do the 25)
CA first state to do 3 strikes- looking at 1) punishment, 2) deterrence, and 3)
protection three strikes law was passed.
o Not every felony counts as a strike- typically strikes are going to be
when there is some kind of felony that has caused harm to another
person or use of a weapon. Strikes are for past behavior, so if your one
court date is dealing with your crime that had 5 felonies your getting
one strike.
o Originally this was what it was
1 strike + 1 new felony= doubles your time (1 strike + New
Felony [16/2/3]= Double [32/4/6]
2 strikes or more + any new felony= 25-life
o When it first came out, judges had no discretion to strike strikes.
o Prisons started to get too full, younger and younger people were going
in for life.
o Crime rates have gone down since 3 strikes
o Judges werent using it consistently from county to county
o Prosecutors dont strike strikes- they can but it almost happens
o The voters shifted away from sending people to jail for minor drug
offenders
o Prop 36- if there is any evidence they are selling or any weapons
involved they cannot get Prop 36, or if another crime is involved (i.e.
theyre high on drugs and steal they wont get prop 36 treatment)
o AB109 passed- reclassified a bunch of felonies and said they are no
longer state prison eligible

That STILL didnt empty the prisons enough

New prop 36 you are not eligible for 25-life unless the new
felony is also a strike offense.
Now you have to have three stike offenses and your
current one has to be a strike offense
Prop 47 took a bunch of things that used to be felonies and
made them not felonies
o If a person goes to prison and does not have a strike they get 50%
credits, if they do then they get 80%
o You cannot do concurrent sentences if strikes are imposed
As a prosecutor if D has a strike you have a lot of leverage, but take the 7
factors into consideration
Romero motion- when defense is making a motion to strike strikes. This is
typically done at sentencing.
if you strike a strike a person is probation eligible
how old is the strike? Consider that, look at what their behavior was after the
strike
o

February 29, 2016

1. Use
2. Possession (Personal Use)
3. Possession (Sale)
4. Sales
65% of people in jail can be considered drug addicts
85% of prison population there for drug or alcohol related crimes
dual diagnosis/co-occuring disorder- This is important
Next week- sentencing alternatives, boot camp, electronic monitoring, treatment
issues

March 7, 2016
private prisions are for profit so its controversial..
o states that have them like them because they feel they can incarcerate
for cheaper
o private prisons cut costs where they shouldnt be cut
1. Prison
o public
o private
2. County jail
o felony jail

3. City jail

4. Work Prog.
5. Community service
6. Home Detention
o its a cost saving measure thats the main benefit
o SCRAM device- tests your blood alcohol level while you wear it.
7. Rehab
o 3 categories
outpatient
inpatient
sober living- more like a halfway house, you wont get credits for
being in a sober living facility. You get tested, house rules you
must abide.
Delancy street- very high success rate. One treatment
program that is
8. Boot Camps- military style boot camping to instill discipline, very popular w
voters and public. Gotten rid of most of them in LA county
There are regional centers are in the state of CA, designed to assist people w
developmental disabilities
o Developmental disabilities are different from mental illness
Develops prior to the age of 17 and is not a result of injury

FOR EXAM LEARN ABOUT CREDITS, ADVANTAGES OF EACH, UNDERATNS

COUNTY SHERIFFS ABILITY TO KICK YOU OUT EARLY IF THEY WANT TO