Just Sentencing # 3: A restated and expanded limiting retributive model

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

In my last guest-blog post I discussed existing sentencing theories and the need for a new (or restated) hybrid model.  In this post I’ll summarize the punishment purposes, limitations, and other core principles embodied in my book’s sentencing reform model. (The next two posts will examine procedural issues.)

As I explained last time, traditional punishment purposes often yield conflicting results when applied to particular cases.  For example, the goals of efficiency and public safety are well served when medium- and low-risk offenders are given reduced penalties.  Such reductions conserve scarce correctional resources (as well as court resources, if more of these offenders plead guilty), take advantage of community-based supports and treatment options, and reduce the risk of worsening these offenders’ life chances and thus making them more crime-prone.  Reduced custodial penalties also leave more room for community service and other restorative justice measures.  But when high–risk offenders who have committed the same crimes receive more severe punishments, the resulting disparities violate traditional retributive uniformity and proportionality principles; a low-risk offender’s reduced penalty also risks depreciating the seriousness of his offense, thus undercutting expressive punishment goals.

The solutions to conflicts like these that have been proposed by retributive theorists are inadequate.  To accommodate variations in offender risk and other non-retributive considerations, strict retributivists propose to merely vary the form of punishment, not its severity.  But loading up lower-risk offenders with onerous probation conditions is expensive and virtually guarantees high failure rates; such failures must then be sanctioned, resulting in more expense, and potentially imposing undeserved severity (since, by hypothesis, the onerous probation conditions have already given the offender his just deserts, and many probation violations are not blameworthy enough to justify much if any added punishment).

Limiting retributivism avoids these problems by positing a range of retributively-permissible penalties, within which risk management and other non-retributive goals may be pursued.  This is a better solution, and it has recently been adopted as the theory underlying the revised Model Penal Code sentencing provisions.  Norval Morris is the best-known proponent of this theory but, as I show in my book, many other writers, as well as most modern sentencing systems, have adopted some version of it.

The hybrid set of sentencing principles proposed in my book represents a restated and expanded version of Morris’s limiting retributive theory.  My model is designed to clarify critical ambiguities in Morris’s theory, incorporate additional important principles that he did not address, and make the restated version of his theory more consistent with the normative premises adopted or implicit in the best existing sentencing systems (thus encouraging the preservation and expansion of those systems).  The remainder of this post summarizes the core principles of my proposed model.

Definite but Asymmetric Desert Limits. Some writers, including Norval Morris, have argued that assessments of deserved punishment are inherently imprecise, even in relative terms (this offender versus that one).  Other writers assume that judgments of relative degrees of desert can be made, at least for typical cases of each crime, but argue that desert limits should be viewed as asymmetric, setting definite upper limits on sanction severity and more flexible lower limits — offenders may not be punished more than they deserve, but they can and often should be given less than their full deserts in order to conserve resources and better achieve other sentencing goals.  My book agrees with the latter view.  And as will be explained in a later post, when state guidelines systems have adopted a desert-based sentencing system the structure and especially the operation of these systems has been more consistent with a definite-asymmetric conception of desert limits.  On the issue of definiteness, I argue that we must try to state upper desert limits as precisely as possible because imprecise limits provide scant protection against pressure to escalate penalties.  Definite typical-case desert assessments also provide a better starting point for judges, and convey more effective expressive messages: “this is how seriously we view crimes of this kind.”  As for asymmetry, I argue that upper and lower desert limits raise different moral issues.  Punishment in excess of an offender’s desert is fundamentally unfair and an abuse of government power.  Below-desert penalties (in my view, but also supported by widespread practice) raise less compelling issues — of arguable unfairness to victims, law-abiding persons, other offenders, and this offender (the “right to be punished” argument).

Recognition of Expressive Goals, Symbolic Censure, and Conditional Hard Treatment.  Current limiting retributive theory gives insufficient weight to norm-reinforcement and other expressive punishment goals.  And most writers who have endorsed such goals claim that they require actual “hard treatment.”  But other writers recognize that suspended prison or jail sentences and other forms of conditional hard treatment can convey useful expressive messages about relative crime seriousness. Such measures also provide an efficient tool for risk management, and they are widely used in most modern systems.

Recognition of the Ends-Benefits Proportionality Principle along with Parsimony.  A very important component of Morris’s theory is the utilitarian and humanitarian principle of parsimony — measures should be no more severe than necessary to achieve their purposes.  But utilitarian philosophy also recognizes another important limiting principle, which I have termed ends-benefits proportionality — the direct and collateral public and private costs and burdens of a penal measures (or of a more severe measure) should not exceed its likely crime control and other practical benefits (or added benefits).

Social Equality as a Further Limiting Principle. One significant collateral cost of punishment is its tendency to reinforce and perpetuate disadvantage, especially for nonwhite offenders, their families, and communities.  These impacts are unfair, and they cause more crime.  A sentencing system cannot eliminate entrenched racial disparities in our society, but it also should not worsen them.  (I discuss the problem of disproportionate racial impact in chapter 5 of my book, and in the 7th post in this series.)

Within-Desert Adjustments Based on Offender Risk and Needs but Not on Deterrence.  Norval Morris was highly skeptical of offender-specific risk assessments, but endorsed case-level enhancements based on needs for greater deterrence. My model takes the opposite approach, viewing such deterrence enhancements as unreliable but encouraging the use, within desert limits, of validated risk assessments.

Retention of Substantial Sentencing Discretion and Control by Judges. The case-level application of sentencing laws should not be tightly controlled by the legislature, sentencing commission, prosecutors, or correctional authorities by means of mandatory-sentence laws, inflexible guidelines, or parole release discretion. Sentencing by judges is, and will be seen as, more impartial, more transparent, and more readily subject to the rule of law and appellate review.

Front-End, System-Wide Management of Correctional Resources.  Correctional resources must be carefully managed so as to set appropriate priorities, avoid overcrowding, and maintain program effectiveness.  These fundamental punishment-policy and resource-use decisions should be made on a comprehensive basis by the legislature or sentencing commission, and should not be left to correctional authorities on a case-by-case basis for the subset of offenders received by each corrections agency.

That's all for now.  In my next post (#4) I'll discuss the widely varying sentencing structures that currently exist in American state and federal jurisdictions, and the need for a new procedural model inspired by the best state sentencing guidelines systems.