Just Sentencing: Principles and Procedures for a Workable System

Just Sentencing: Principles and Procedures for a Workable System

Just Sentencing: Principles and Procedures for a Workable System

Just Sentencing: Principles and Procedures for a Workable System

Synopsis

What are the most important purposes of punishment, in general and in particular cases? What makes just sentencing? These eternal questions are very difficult to answer because traditional as well as emerging sentencing purposes often conflict. Retributive and non-retributive institutions andintuitions of justice are both deeply-rooted and each equally hard to ignore. There is no generally accepted or well-elaborated theory to guide and evaluate recent or proposed sentencing changes, and most of the major books on sentencing theory are outdated. There is a compelling need for a newsentencing model. In Just Sentencing, Richard Frase describes and defends a hybrid sentencing model that integrates theory and practice - blending and balancing both the competing principles of retribution and rehabilitation and the procedural concern of weighing rules against discretion. Frase lays out a sentencingreform model based on the theory of limiting retributivism. The theory accommodates retributive values - especially the human-rights-based need to limit maximum sanction severity - along with crime-control goals such as deterrence, incapacitation, rehabilitation, and moral education. It alsopromotes efficiency and provides sufficient flexibility to incorporate victim and community participation, local values and resource limitations, and restorative justice programs. Frase presents his significantly expanded version of the limiting retributive model and distinguishes it from versionsproposed by others. Next, he demonstrates the practical feasibility and widespread support for this approach by showing how it has been successfully implemented in Minnesota, while also identifying the less developed limiting retributive elements found in almost all Western countries. The final partof the book identifies and attempts to resolve the model's most important theoretical and practical challenges, and suggest further improvements. Just Sentencing is the first book in over forty years to present a fully developed punishment theory which incorporates both utilitarian and retributive sentencing purposes.

Excerpt

What are the most important purposes and limitations of punishment, in general and in particular cases? These important normative and public policy questions are very difficult to answer because traditional as well as emerging sentencing principles often conflict. How can these conflicts be resolved? And what sentencing procedures— advisory or presumptive guidelines, other mandatory or determinate sentencing rules, traditional discretionary sentencing, parole-release discretion or its abolition—are best suited to implement the chosen sentencing principles and priorities?

In recent decades there have been many important changes in sentencing laws, procedures, and practices, with more changes likely in the years ahead. As a result of increased legislative activity, dramatic growth in prison populations, and the U.S. Supreme Court’s greater willingness to address constitutional issues in this area, questions of sentencing law and policy have commanded much wider attention from legislators, courts, and scholars. But there is no well-elaborated theory to evaluate sentencing practices and the diverse sentencing procedures and structures found in American jurisdictions, and no coherent model to guide reform efforts.

The solution to these vitally important theoretical and practical challenges can be found in the sentencing model summarized below and more fully developed in the following chapters. The model’s sentencing principles reflect an expanded version of the theory of limiting retributivism. But sentencing principles have little utility, or even clear meaning, without concrete implementing structures; the model’s limiting-retributive and other principles are given form and effect by means of procedures found in the best American state guidelines systems.

The basic principles of limiting retributivism have been endorsed by numerous writers, and are most fully articulated in the writings of Norval Morris. A similar theory, known as “modified just deserts,” was explicitly adopted as the basis for Minnesota’s pioneering sentencing guidelines reform, in effect since 1980; several other states have implemented guidelines systems modeled on (and in some respects more fully developed than) the Minnesota approach. Looser versions of limiting retributivism . . .

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