Academic journal article Stanford Law Review

Punishment Purposes

Academic journal article Stanford Law Review

Punishment Purposes

Article excerpt

INTRODUCTION

 I. OVERVIEW OF CONTEMPORARY SENTENCING PURPOSES AND
    LIMITATIONS
    A. Utilitarian Purposes and Limitations
    B. Nonutilitarian Purposes and Limitations
    C. Utilitarian Proportionality and Uniformity
    D. Conflicts Within and Across Punishment Principles
II. RECONCILING CONFLICTING PUNISHMENT PRINCIPLES: LIMITING
     RETRIBUTIVISM
     A. The Limits of the Criminal Law as an Instrument of Crime
        Control
     B. Illustrative Cases
CONCLUSION

INTRODUCTION

The reform goal of promoting reasonable consistency and reducing disparity in sentencing is meaningless without a frame of reference--consistency or disparity relative to what underlying principles? (1) In order to decide that two offenders are similarly situated and thus should receive similar sentences (or that they are dissimilar and should receive different sentences) we must first define the relevant sentencing factors (the offense and offender characteristics that judges should consider in determining appropriate sentences) and the weight to be given to each of these factors. The choice and weighting of sentencing factors depends, in turn, on the punishment purposes which the sentence is supposed to serve.

Sentences can serve many purposes, and these purposes are often in conflict. Some of the most difficult conflicts are between proportionality principles, on the one hand, and case-specific crime-control or restorative-justice purposes, on the other. Proportionality serves both retributive (just deserts) and practical (utilitarian) sentencing purposes. Under a retributive theory, sanctions should be scaled in proportion to each offender's blameworthiness, and equally culpable offenders should receive equally severe sanctions. Sentencing proportionality and uniformity also have practical benefits, such as reinforcing public views of relative crime seriousness and maintaining public respect for criminal laws and the criminal justice system.

But realizing the goal of efficiently preventing future crime sometimes requires unequal or disproportional treatment. For example, if two first-time offenders commit the same crime but one has genuine feelings of remorse, strong family ties, and other indications of amenability to supervision and low risk of reoffending, putting that offender on probation and sending his much riskier counterpart to prison saves scarce correctional resources while still promoting public safety. But doing so produces disparate sentences for equally culpable offenders and undercuts the practical values served by uniformity and proportionality.

The best solution to conflicts such as this is not to adopt a narrow punishment theory (e.g., one based solely on retributive or risk-management goals), but rather to design a hybrid sentencing system that gives appropriate scope to all legitimate sentencing purposes. The hybrid approach adopted by most state guidelines systems is a version of the theory of limiting retributivism. Under this approach, principles of uniformity and proportionality relative to crime seriousness and offender desert set upper and lower limits on sentencing severity. Within the range defined by these limits, other principles provide the necessary fine-tuning of the sentence imposed in a particular case. These other principles include not only traditional crime-control purposes such as deterrence, incapacitation, and rehabilitation, but also a concept known as parsimony--a preference for the least severe alternative that will achieve the purposes of the sentence. The parsimony principle recognizes that severe penalties are expensive and usually harmful to offenders and that the crime-control benefits of such penalties are uncertain and often quite limited. Severe penalties should therefore be used as sparingly as possible.

Part I of this Article provides a brief overview of contemporary sentencing purposes and discusses some of the many ways in which these purposes conflict with each other. …

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