Just Sentencing # 2: Existing sentencing theories are inadequate

Richard Frase, guest-blogging on Just Sentencing: Principles and Procedures for a Workable System (Oxford 2012):

In my first guest-blog post I provided a summary of my book’s main features and arguments.  Although most articles and books on sentencing are primarily either theoretical or practical, my book presents a fully-developed sentencing model that integrates theory and practice.  In this post and the next one I’ll discuss issues of principle (procedural issues will be addressed in posts four and five).  This post examines existing sentencing theories and the need for a new (or at least, restated) hybrid theory.  The next post will show how the model in my book meets that need.

Punishments require clear and convincing normative justification — by definition, they impose unpleasant and usually harmful consequences on offenders and their families, and they also consume scarce public resources.  But the most widely-accepted purposes of punishment often conflict in particular cases.  To further complicate matters, there are other important normative questions embedded in the choice of sentencing procedures, in particular: what official(s) or agency(ies) should make case-specific sentencing decisions?  And who should decide how to make the best use of limited available punishment resources?

The most widely-accepted purposes of punishment are crime control and retribution.  Punishments have the potential to achieve crime control through several mechanisms: rehabilitation of offenders, to address the causes of their offending; incapacitation of higher-risk offenders, usually by means of secure custody; specific and general deterrence of this and other would-be offenders, by instilling fear of punishment; and moral education to define and reinforce societal norms that restrain criminal behavior even when (as is often true) the chances of detection and punishment are slight — the sentence sends a message to the offender and the public that the punished behavior was wrong, and the severity of the sentence shows how wrong it was.

The other major traditional punishment goal, retribution (or “just deserts”), views punishment as justified because of its inherent value as a good thing in itself, regardless of whether it yields effective crime control or any other desired consequences.  Under the stronger versions of retributive theory offenders should be punished simply because they deserve it, the severity of their punishment should closely match their degree of blameworthiness (retributive proportionality), and equally blameworthy offenders should receive equally severe punishments (retributive uniformity).  A competing retributive theory — “limiting” retributivism — merely sets outer limits on punishment imposed to achieve other goals (especially crime control), thus producing a range of retributively permissible severity for any given case.  Finally, some desert-based theories justify punishment in terms of its expressive or communicative value; on this view, conveying deserved censure to offenders, and inviting an appropriate response from them, are viewed as good things for society to do whether or not any such response is obtained.

There are a number of other widely-recognized punishment theories, purposes, and limitations. Utilitarian philosophers have long argued that sentencing in proportion to crime seriousness deters offenders from committing a more serious crime, and helps to match punishment costs with crime-control benefits.  Sentencing uniformity also has practical benefits: it permits more accurate forecasts of future prison populations and other correctional resource needs.  And to the extent that the public subscribes to these values, making sentences more uniform and proportional improves the moral-education effects of penalties and maintains critically needed public respect and support for the criminal law and law enforcement.  Other practical goals of punishment include promoting satisfaction, closure, and compensation for crime victims and communities (restorative justice); reassuring the public that something is being done about crime; and facilitating the offender’s successful reintegration into society following his or her release from incarceration.  Finally, various administrative purposes and limitations must be taken into account in any theory of punishment, in particular: the need to encourage guilty pleas and other forms of offender cooperation; and the necessity to avoid prison and jail overcrowding and prioritize the use of these and other correctional resources.

Other sentencing goals are (like retribution) deemed to be good things in themselves.  These include the avoidance of disparities based on race or other clearly illegitimate criteria; the requirement that punishment respect norms of humane treatment and human dignity; and procedural fairness.  The lengthy list of punishment principles above virtually guarantees that, in many cases, the principles will yield conflicting results.  For example, if two equally blameworthy offenders commit the same crime but one poses a much higher risk of reoffending, putting the low-risk offender on probation and sending the high-risk offender to prison saves scarce correctional resources while effectively promoting public safety.  But doing so produces sentencing disparity from the perspectives of retributive proportionality and uniformity, risks depreciating the seriousness of the low-risk offender’s crime, and undercuts other practical values served by uniform and proportionate punishments.  Restorative justice measures provide another example: they may produce sanctions that, from retributive, crime-control, and/or efficiency standpoints, are either too severe (e.g., because of vengeful victim or community views) or not severe enough.

How can these various conflicts be resolved? Some retributive theorists argue that different forms of punishment (prison for high risk offenders; probation with onerous conditions for lower risk offenders) can still have equal punitive “bite,” thus maintaining proportionality.  But as I show in this book, such an approach poses many practical problems (greater cost; little reserved punishment power to handle violations of release conditions), and no jurisdiction has ever implemented such a system.

Limiting retributivists have generally resolved crime-control-versus-desert conflicts by positing a broad range of “not-undeserved” penalties based on the supposed inherent imprecision of desert judgments. But imprecise limits may result in no real limits at all.   And states with desert-based sentencing guidelines have not had difficulty reaching consensus about relative degrees of typical-offense desert, and about the factors that make a case atypical.  But these states, and indeed virtually all modern punishment systems, have in effect adopted an asymmetric model, giving greater emphasis to upper than to lower offense-proportionality limits.

In my next post (#3) I’ll discuss principled arguments in favor of an asymmetric model.  I’ll also discuss my hybrid model’s other sentencing principles, purposes, and limitations.