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May 12, 2014

Form, function and finality of sentences through history: the Founding Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  As explained in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  

This theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality.  I recount this historical story (too quickly) in three parts in my paper — discussing separately the Founding, Rehabilitative and Modern Eras — and will use three blog posts to set out this story here.  Starting with the Founding Era, here are some of my article's observations:

The distinct nature of sentencing and punishment in the Founding Era adds additional dimensions to the finality story in early American criminal justice systems.  At America’s founding, differentiating between convictions and sentences was largely unknown because a defendant’s conviction and sentence were generally one and the same. As the Supreme Court has explained, during this period the “substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense [and a] judge was meant simply to impose that sentence.”  This era’s “invariable linkage of punishment with crime” meant that there were generally no special sentencing doctrines or court proceedings distinct from the doctrines and procedures that attended traditional criminal trials. The early history of American law, in other words, did not generally distinguish between convictions and sentences for any purpose, let alone with respect to how these two components of a criminal judgment ought to be treated for finality purposes.

[In addition,] until the development of penitentiaries in the mid-nineteenth century, the capital and corporal punishments typically employed in early America were completed upon imposition and thus beyond review or reconsideration once imposed.  After a convicted criminal defendant was executed or banished or pilloried or whipped or placed in the public stocks, there were no practical means or opportunity to review or modify the imposed sanction.  An executed or banished defendant was, obviously, no longer present in the community to seek reconsideration of either his conviction or sentence; a defendant who was whipped or subject to other public corporal punishment could not have reversed or modified the pain or shame he experienced after such a sanction was first imposed.

Prior posts in this series:

May 12, 2014 at 12:36 PM | Permalink


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Doug, you do not distinguish between correction plans and sentences. A sentence is the fixed part of a correction plan; i.e., deprivations used to penalize and punish. Once established, they do not change. Those parts of a correction plan that are not fixed are variable; i.e., deprivations used for risk control and risk reduction.The facts upon which these parts of a correction plan are based do change.

Posted by: Tom McGee | May 12, 2014 1:16:24 PM

What about damage awards? Could a spouse, e.g., get something for a wrongful conviction?

If corporal punishment was wrongly applied and it affected livelihood? etc.

And, why should banishment block reconsideration? Did they have to be present to bring a claim? For instance, let's say a person had cause to return in respect to his business. If the banishment was wrongful, was there no route of redress? Did the feds banish people from territories? A person would still be present in the country even if they could not enter a territory.

Isn't part of the "shame" that one is a criminal? A wrongful whipping would be shameful to some extent, but if they had an official judgment it was wrongful, I'd think it much less so long term.

BTW, interesting discussion of a lecture over at SCOTUSBlog, including a reference to slaves being appointed counsel in Missouri for freedom suits.

Posted by: Joe | May 12, 2014 1:51:12 PM

I am not sure I understand your distinction, Tom. Let's focus on, for example, the current federal sentencing system for an average federal crack defendant (who we can call Cracky). According to USSC data, which the "average sentence length for crack cocaine traffickers was 96 months" (8 years) in FY 2013, plus a couple additional years of supervised release. So let's say this is what Cracky gets for his average crack offense sentenced sometime in 2013.

Based on good behavior, Cracky could get up to 15% off his prison sentence and end up, in fact, spending less than 7 years of his 8 years sentence behind bars. But, based on bad behavior as judged by corrections officials and probation officials, Cracky might not only have to serve a full 8 years, but might also have his supervised release revoked and get sentenced (by a judge) to serve another few years in prison.

Based on your terminology, what is Cracky's "sentence" and what is his "correction plan"? I think most folks would say his "sentence" is what was announced at his sentencing: 96 months in prison plus a couple years of supervised release. And that is what I generally mean when I say "sentence." But your comment makes me think you have a distinct definition. Just trying to understand your terminology and to see how it applies to modern federal sentencing.

Posted by: Doug B. | May 12, 2014 4:45:11 PM

You raise great points, Joe, and I would love to see a historical review of the issues you raise. The point of the very cursory (and arm-chair) bit of legal history in my article was not to try to provide a full account of these matters, but rather to just provide a bit of historical perspective (which I find intriguing) on how sentence finality issues look(ed) quite different when prison terms are not the standard form of punishment.

Posted by: Doug B. | May 12, 2014 5:36:14 PM

Doug, I’m sorry for the lack of clarity in my comment. The current federal sentencing system does not make this distinction between correction plans and sentences, but looking ahead, it should.

It seems to me that the system should focus on correcting the problem, which is a person’s antisocial behavior. To do this the state must make a plan and then match the components of that plan with the components of a correction program as closely as possible. The aim of such a plan is to shape the behavior choices of the offender. It has several components. Two of them are fixed, a penalty for having committed a crime and punishment, which is the state’s response to the fact that that crime was the core part of a criminal offense. These components do not change, because the facts upon which they are based do not change once established. Both are manifestations of the problem. A sentence is the fixed part of a correction plan.

In addition the plan should include a risk control component and risk reduction component, both of which are responses to the fact that the person in question is a criminal offender who has a substantial risk of committing another crime. This provocation is also a manifestation of the problem. The facts upon which risk are based do change over time.

So what we have is an argument that has two premises and a conclusion, all of which are manifestations of the problem. When activated by a finding of guilt or plea, the person in question is placed in jeopardy and the planning process goes forward.

Plea-bargaining is appropriate with respect to the penalty and punishment components because the facts upon which they are based do not change once established. But plea-bargaining is unworkable with respect to risk because it factual basis is changeable.

I believe the current system has run wild because it is focused on priming the jeopardy argument, which is an understandable concern of most lawyers, rather than upon correcting the problem. What we call a sentence is just the fixed part of a correction plan.

To get back on track we need some agreement about what constitutes a correction plan, and the role that sentencing plays in its formulation.

Posted by: Tom McGee | May 12, 2014 6:18:06 PM

I appreciate it. Just take it in that spirit.

Posted by: Joe | May 13, 2014 9:56:18 AM

Doug, after checking my comment yesterday, I see that I did not answer your question directly. Yes, I agree that Crakey was "sentenced" as you described. The difficulty here is that this "sentence" was the state's response to a heuristic question. When people are confronted by difficult questions they often answer easier heuristic questions. Daniel Kahneman describes it this way. "The technical definition of heuristic is a simple procedure that helps find adequate, though often imperfect answers to difficult questions." The difficult question here is how shall the state respond to a person's antisocial behavior? The heuristic question is what shall the state do when someone commits a crime?

Heuristic answers are often biased. That is certainly the case with most sentences. They are either determinate or indeterminate, when in fact the state's responses to a person's antisocial behavior should be both, as I described in my earlier comment. The alternative is to make a life-space plan for each offender, then match the components of that plan with the components of a program. Plans of this kind put all of the state's correctional objectives on the table in each case, rather than being one sided.

The so-called sentencing revolution that started in the 1970's chose to dumb-down the problem; to take the heuristic route. The result has been disastrous.

Posted by: Tom McGee | May 13, 2014 12:48:30 PM

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