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December 11, 2012

Just Sentencing #1: Overview

0199757860Hello 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.

December 11, 2012 at 05:47 PM | Permalink


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Looking forward to your posts, professor. I particularly agree that "Any purely retributive or purely crime-control model would fail to recognize widely-shared competing values...."

My eyes glaze over when I read someone postulate that it is purely one or the other and proceed from there. As in math, once you begin with a false postulate, everything that follows is pointless.

Posted by: Kent Scheidegger | Dec 11, 2012 7:36:02 PM

Prof. Frase --

I sure I'll have many questions. Let me start with this one: Do you agree that the substantial increase in incarceration over the last generation has significantly contributed to the massive (about half) drop in the crime rate?

I'm not asking if you think increased incarceration is the only cause (it isn't) or whether it's costly (it is). I'm asking only if you believe it's a significant factor in crime reduction.


Bill Otis
Adjunct Professor of Law
Georgetown Law Center

Posted by: Bill Otis | Dec 11, 2012 7:45:13 PM

Thank you for the review of your book, Professor Frase. My point on your approach is with sex offender sentencing and post-incarceration release into the community. As you may know, sex offenses are the only crime in which the community would rather see the offender fail and return to prison than to succeed with the necessary components you have summarized. I myself have always been a proponent of compartmentalizing sentencing components, advocating a specified incarceration and post-incarceration period for each offender to reduce the necessity of parole hearings, so that each aspect of the "correctional" system comes into play, all the way from initial incarceration up to successful reintegration with a lawful society. Post-court release of registered sex offenders actually negates such reintegration to the point that prison reform is meaningless to such offenders.

I look forward to your otherwise excellently summarized outline of what I expect to be a fascinating and informative book.

Posted by: Eric Knight | Dec 11, 2012 7:47:18 PM

I too, look forward to your posts and reading your book. I have long thought that all of the States's sentencing objectives should be put on the table in each case. To the extent that decision-makers have any discretion, sentences inevitably reflect all of these objectives, whether they are explicit or implicit. Sentencing double-talk is the coin of the day.

I think of punishment as the concept of a category of strategies, not the goal, which is to sustain social order. Of course, other strategies are used to accomplish this goal as well, such as controlling the offender's risk of recidivism, which have nothing to do with punishment. Please comment.

Posted by: Tom McGee | Dec 12, 2012 1:27:54 PM

In reply to Bill Otis’s question: yes, I’m sure massively increased incarceration has prevented quite a few crimes – it would have to unless we somehow managed to pick exactly the wrong new people to lock up. But the real questions are: 1) did we need to increase incarceration rates that much to gain the additional crime prevention? And 2) even if we did, were all the added individual and societal costs (including negative collateral consequences) worth the added crime control benefits? The point is: we need to be a lot smarter about who we lock up, and for how long. To make a health care analogy: if you buy every single test and procedure currently available you will probably be healthier, but many of those tests and procedures are unnecessary, and some of them have bad side effects. U Chicago economist Steven D. Levitt is quoted as saying today in the NY Times: “In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration. Today, my guess is that the costs outweigh the benefits at the margins. I think we should be shrinking the prison population by at least one-third.” So then the question is, which prisoners are in that one-third? High on my own list would be two groups: low level drug sellers who are quickly replaced on the street; and offenders in their 40s and older who (with identifiable exceptions) are past their peak offending years or likely to soon desist entirely. As I’ll explain in a later post, we apply habitual offender laws and substantial criminal history enhancements without regard to the offender’s current age, even though “life course” (criminal careers) research has repeatedly demonstrated a fairly consistent “age-crime curve.”

Posted by: Richard Frase | Dec 12, 2012 2:16:19 PM

I hope to see these problems addressed.

1) Where is the path to zero crime rate?

2) Decisions based on adjudicated crimes are based on fictitious crimes, and that is the case in the 95% of prosecutions that are plea bargained. Should decisions about individual criminals be made solely on the basis of the indicted crime, not the adjudicated one?

3) Retribution comes from the Bible, and violates the Establishment Clause. Deterrence is the punishment of a defendant to scare another, unknown, speculative future defendant, and violates Fifth Amendment procedural due process (no one has asserted these rights to my knowledge).

4) The irremediable economic conflict of interest of lawyers. Truly eradicate crime, lose lawyer jobs. So they intentionally tune and maintain the crime rate slightly below the level of public outrage. When it falls, they reverse the trend as the with conservative court handing down the decisions that made guidelines discretionary, led by Hang 'Em High Scalia, and resulting in a wave of murders mostly in black neighborhoods. One contrasts the result of committing a violent crime in a lawyer residential neighborhood, get blasted at the scene by the police arriving within 2 minutes, and no resulting excessive force litigation. The lawyer must removed from the policy positions of the criminal law and sentencing. The lawyer must be excluded from the Supreme Court, all other benches, and replaced with professionals committed to and rewarded for eliminating crime completely.

Posted by: Supremacy Claus | Dec 13, 2012 5:41:26 PM

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