Just Sentencing #1: Overview

Hello everybody.  I’m Richard Frase and I’d like to thank Doug Berman for inviting me to blog about my new book, Just Sentencing: Principles and Procedures for a Workable System, published last week by Oxford University Press and available here.

Of course, I can’t fully convey the whole book in a few blog posts, especially a book with the broad scope describe below. All I can do is provide a summary of what I think are the book’s main features and arguments. Whether you agree or disagree with what I say in these summaries, I hope you’ll consider the fuller statements contained in the book.

My book presents a hybrid sentencing model that combines clearly-stated normative principles with procedures that have proven successful in practice in the most fully-developed state sentencing guidelines systems.

The model’s theoretical structure is an expanded version of limiting retributivism that sets desert-based limits on sentence severity, within which crime control and other non-retributive purposes and limitations of punishment are applied.  The latter include: expressive sentencing goals; parsimony (least restrictive alternative); utilitarian proportionality; social (and especially, racial) equality; retention of substantial judicial sentencing discretion; and front-end, system-wide management of correctional resources.  The model provides a role for all traditional and emerging purposes and limitations of punishment, and resolves the conflicts that often arise when those principles are applied to specific cases.  I argue that a hybrid sentencing theory is normatively superior and practically necessary.  Any purely retributive or purely crime-control model would fail to recognize widely-shared competing values, and would not succeed in practice.  Indeed, all modern sentencing systems with which I am familiar are hybrids of one kind or another, combining retributive principles with crime-control goals.

A sentencing theory, no matter how well it resolves important normative concerns, is of little utility without an accompanying set of workable procedures designed to implement the chosen sentencing principles.  Indeed, pure theory is incomplete even on normative grounds; concrete structures and decision rules help to illustrate and clarify theoretical concepts and the normative choices being made.

But sentencing procedures must likewise achieve an acceptable balance, especially between two competing procedural ideals — rule versus discretion — each of which has important advantages. Rules promote consistency and predictability; discretion promotes flexibility and efficiency. Procedures must also strike a workable balance in the use of custodial and non-custodial sentencing options, and in the powers of systemic policy makers (the legislature and sentencing commission) and case-level decision makers (judges, attorneys, and correctional officials).

Although sentencing guidelines are often seen as reflecting strong preferences for rules over discretion, and for system-wide over case-level policy-making, that is not how the best state guidelines systems actually work.  Like the proposed model, these systems structure sentencing discretion but leave judges and other officials with a substantial degree of discretion to tailor the form and severity of sanctions to the facts of particular cases.  My book shows how the core principles and procedures of the proposed model have been implemented in several states, and endorsed in model sentencing codes and standards.

The proposed model fills the need for a workable new sentencing rationale and structure to replace the once-monolithic indeterminate model which is now widely discredited because of its reliance on unfettered judicial and parole discretion.  My book also forthrightly addresses and resolves some of the most difficult challenges faced by American sentencing policy, including: overuse of prison sentences; racial disparities in prison and jail inmate populations; and the justification for and degree of sentence enhancements for repeat offenders.

The principles and procedures of any viable new model will, of necessity, be more complex than the indeterminate model that dominated American sentencing for most of the 20th Century.  The new model must harmonize and provide suitable roles for multiple, often-conflicting principles (indeterminate sentencing only needed to harmonize rehabilitation and public protection).  And the new model’s procedures must strike a better balance between rule and discretion (indeterminate sentencing’s procedures were simple but very unbalanced — all discretion, no rules).

But the model described above is not actually that hard to design. As I show in this book, my “new” model already exists to a great extent in several state systems, some of which have been in operation for decades.  My book gives particular emphasis to and draws its greatest inspiration from the guidelines systems in Minnesota, Washington, Oregon, Kansas, and North Carolina.  By the mid-1990s it seemed likely that the sentencing reform model adopted in these states would continue to spread, but then sentencing reform lost momentum and direction.  I argue that the virtues of this model remain, and that the perceived barriers to its broader adoption have disappeared or were always exaggerated.

Aside from the fragmented and often incoherent state of American sentencing, there are further reasons to return to the project of sentencing reform.  The massive recent increases in the size and cost of American prison populations, and their persistently high rates of racial disproportionality, provide reasons enough to seriously reexamine the sentencing principles and procedures that drove or at least allowed such increases and disparities.

I argue that states that have adopted my model should recognize its virtues and seek to maintain and improve their systems.  States that have not yet tried this model (or tried and then abandoned an incomplete version) should give this approach serious consideration.  The benefits of the model can be quite substantial, given the high individual and societal costs imposed by contemporary U.S. sentencing systems, and the modest expense of even a well-funded guidelines reform.  Beyond material costs and benefits, the proposed model can help states achieve what may be the most important product of a sentencing system — just punishments that are perceived as just by offenders, victims, and the public. The model can achieve just sentencing because it embodies clearly articulated and widely shared principles, combined with proven procedures well-suited to implementing those principles.

That's all for now.  In my next post I'll discuss existing sentencing theories, and the need for a new (or restated) hybrid model.