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April 22, 2024

"Unpunishment Purposes"

The title of this post is the title of this new article now available via SSRN authored by Meredith Esser. Here is its abstract:

Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation.  However, little scholarship exists addressing how these four punishment purposes apply in the post-sentencing or resentencing context.  Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and they tend to downplay the impact of incarceration on the families and communities of those who are incarcerated.  Drawing on abolitionist principles centered around harm reduction, this Article reimagines the punishment purposes in a new way, with a decarcerative valence.

This Article attempts to reconceptualize the traditional purposes of punishment in order to meet the current historical moment, and it does so through an abolitionist lens.  For example, within the past decade, a number of state and federal retroactive relief mechanisms have allowed incarcerated people to petition courts for sentence reductions based on various legal theories.  But guidance provided to courts and other decisionmakers about how to exercise their discretionary decarceration authority is lacking.  Accordingly, this Article addresses head-on the need to develop a theory of resentencing and asks whether the four purposes of punishment require revision or augmentation to account for the sentence reduction context.

Further, this Article uses the federal second look context as a means to interrogate why blind adherence to the four punishment purposes has persisted despite their clear shortcomings.  In so doing, this Article seeks to shape second look advocacy and decision-making efforts, as well as the way in which sentencing is approached in the first instance, by both shifting away from the default of incarceration as punishment for crimes and utilizing a sentencing framework that looks at societal harm more expansively.

This Article argues that, by incorporating an abolition-based theory of harm prevention or reduction into the punishment purposes, judges may have more incentive to revisit old sentencing determinations and release more people from prison.  More than that, however, incorporating such a theory into a prospective sentencing may lead judges to rethink their reflexive reliance on the punishment purposes in the first instance, resulting in less punishment altogether.

April 22, 2024 at 10:03 AM | Permalink

Comments

This is a beautiful example of academia's crackpot devotion to the idea that criminals are victims/martyrs and the rest of us are punitive blockheads at best. Dressing it up in a bunch of fancy language is, I guess, supposed to impress us.

Better luck next time. But you do have to appreciate the unvarnished insight it gives us into how far academia has wandered away from the thinking of normal people.

Posted by: Bill Otis | Apr 22, 2024 12:05:46 PM

Even without opening the comments, I knew who would respond to this and how. Diversity in opinions is necessary to achieve fair outcomes in all areas of life, and sentencing policies are no exception. This article does not say that "criminals are victims/martyrs and the rest of us are punitive blockheads at best." To quote the article, it "seeks to shape second look advocacy and decision-making efforts, as well as the way in which sentencing is approached in the first instance, by both shifting away from the default of incarceration as punishment for crimes and utilizing a sentencing framework that looks at societal harm more expansively."

I am a family member of an incarcerated individual, and I am hoping that people like me can be heard. Yes, people should be held accountable for their actions. My family member should be incarcerated. But, I also think that the full effects of the sentence on families and communities of incarcerated individuals during and after incarceration should be taken into account as well. I do not hold a legal degree, but I can contribute to this discussion and add value. Again, I am not insisting on "no punishment is the right policy," but I am looking toward a balanced discussion. And this article helps achieve it.

Posted by: Anonymous | Apr 22, 2024 3:01:45 PM

Anonymous --

"Diversity in opinions is necessary to achieve fair outcomes in all areas of life, and sentencing policies are no exception."

Agreed.

"This article does not say that 'criminals are victims/martyrs and the rest of us are punitive blockheads at best.'"

It doesn't say so using those specific words (which is why I did not use quotation marks), but that's the gist of it.

"I am a family member of an incarcerated individual, and I am hoping that people like me can be heard."

I have no objection to your being heard, and your remarks appear here exactly as mine do.

"I also think that the full effects of the sentence on families and communities of incarcerated individuals during and after incarceration should be taken into account as well."

As should the full effects of the crime on the individuals, families and communities that are its victims, but academic writing by a huge measure is more interested in speaking up for the victimizer rather than the victim. If we are to have the balanced discussion you would like, that needs to change.

Posted by: Bill Otis | Apr 22, 2024 5:36:03 PM

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