Dealing with the Guilty Offender
Sentencing is the imposition of a legal sanction on a person convicted of a criminal offense. The typical participants in sentencing decisions are the sentencer (judge or magistrate), counsel for the prosecution, the offender, and his or her legal representative(s). In some instances, community and family members may participate, including the crime victim or his or her representatives. By and large, judges and magistrates impose most criminal sentences in the context of a sentencing hearing, but in some circumstances laypersons render the sentence. For example, in Canada and Australia, indigenous community members and the crime victim, as well as representatives of the defendant, contribute to "circle sentencing decisions" (e.g., when the court incorporates aspects of traditional tribal justice into its proceedings). In addition, within the United States, several states allow juries to issue noncapital sentences, although in some of these states the jury's power is limited (Nadler & Rose, 2003), and in 38 states jurors serve on capital cases to determine whether a death penalty will be imposed.
Compared with the amount of psycholegal research that has investigated pretrial issues and litigation over guilt determinations in criminal cases, there is relatively little empirical research on sentencing. A small proportion of cases goes to trial in comparison with the number that are settled or disposed of out of court; thus investigations confined to studies of the trial process ignore the majority of cases and more normative dispositional processes. Relatively few cases in which criminal culpability is determined proceed to a sentencing hearing. In the United States, as many as 90% of all criminal cases are determined by means of a plea bargain between the offender and the state (Haney, 2002).