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December 12, 2008

A thoughtful and theory-driven exploration of a parsimonious white-collar sentence

I am very pleased to conclude the week by posting a copy of a terrifically thoughtful district court sentencing opinion in a white-collar sentencing case.  The ruling comes from Judge James Gwin in US v. Cole, No. 5:08-cr-00327 (N.D. Ohio Dec. 12, 2008) (available for download below).  Among the opinion's many virtues is its extended discussion of the traditional theories of punishment that Congress set out in 18 U.S.C. § 3553.  Here is how that discussion begins:

We have long understood that sentencing serves the purposes of retribution, deterrence, incapacitation, and rehabilitation.  Deterrence, incapacitation, and rehabilitation are prospective and societal–each looks forward and asks: What amount and kind of punishment will help make society safe?  In contrast, retribution imposes punishment based upon moral culpability and asks: What penalty is needed to restore the offender to moral standing within the community?

Federal sentencing law generally tracks these purposes.  Section 3553 tells Courts to choose a sentence that reflects the seriousness of the offense (retribution), promotes respect for the law (retribution, general deterrence), provides just punishment for the offense (retribution), affords adequate deterrence to criminal conduct (general deterrence), protects the public from further crimes of the Defendant (specific deterrence, incapacitation), and provides the Defendant with needed training, care, and treatment (rehabilitation).  18 U.S.C. § 3553(a)(2).  These four goals of sentencing will be addressed in turn.

Download Cole Sentencing Memo docketed version

December 12, 2008 at 04:40 PM | Permalink

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Comments

That's a very interesting opinion. Judge James Gwin seems to give significant weight to retribution. Is the weight that we give to retribution appropriate?. He states:

"retribution imposes punishment based upon moral culpability and asks: What
penalty is needed to restore the offender to moral standing within the community?"

Is punishment based on retribution truly correlated with moral culpability? Or does retribution really submit to a consequentialist philosophy of sentencing, basing punishment the consequences of a defendant's actions, not the moral culpability behind the actions.

I have spent sometime examining this topic myself: LINK

Posted by: Jacob | Dec 13, 2008 6:34:53 PM

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