CHAPTER 15 SENTENCING

• Jurisdiction: United States

Chapter 15 SENTENCING

§ 15.01 OVERVIEW¹

[A] The Subject of Sentencing

If a criminal defendant is convicted, either by guilty plea or trial, she then faces sentencing. Determination of a defendant's punishment is a critical part of the criminal process. Yet, compared to the adjudicative process that precedes it, sentencing is a different kettle of fish. Or, to mix the metaphor, from a procedural perspective criminal sentencing is neither fish nor fowl: Many of the special rights and procedures that abound in criminal procedure apply at sentencing, but nearly as many do not. In process terms, sentencing is less than a trial but more than ordinary post-conviction proceedings. In short, criminal sentencing may appropriately be considered a subject unto itself. As a result, most criminal procedure courses — and this Text — provide a grounding in the subject, but do not fully cover all the myriad issues faced in everyday sentencing practice.

[B] The Purposes of Punishment²

[1] The Role of the Purposes of Punishment

A natural starting point for determining a criminal sentence is consideration of the purpose of the punishment, and some sentencing codes and model codes begin with statements of purpose.³ Usually, these purposes come from among the four classic justifications for criminal punishment — retribution, deterrence, incapacitation and rehabilitation⁴ — often including more than one of the four, and sometimes including all four.⁵

Although criminal codes frequently embrace multiple purposes for criminal punishment, these purposes sometimes point in opposite directions. For example, suppose D murdered V, but subsequently underwent a sincere religious conversion so that D is genuinely very unlikely to harm others in the future. A judge sentencing on the basis of the need for retribution or general deterrence would likely conclude that D ought to receive a severe punishment. On the other hand, a judge sentencing on the basis of the need for rehabilitation or incapacitation would likely find that D merits a much lighter penalty, or perhaps none at all.

Because of these tensions between purposes, and because (as described in the succeeding subsections) the "right" punishment in a particular case — even given a single justification for punishment — often can only be guessed at, the choice of purpose(s) rarely dictates actual sentences. Nonetheless, basic familiarity with the justifications and criticisms of the purposes of punishment is essential to understanding the law of sentencing for at least two reasons. First, arguments based on the purposes of punishment frequently play a prominent role in sentencing proceedings. Second, the relative dominance of particular purposes of punishment can have a substantial impact on sentencing systems. For example, in the last thirty years of the twentieth century a widespread shift away from rehabilitation towards the goals of retribution and incapacitation played a substantial role in "an unprecedented explosion of the prison population, producing a 'level of incarceration . . . unprecedented in this country's history and throughout the world today.' "⁶

[2] Retribution⁷

Retributivism is grounded in the view that punishment should be based on "just deserts." Punishment is deserved "when the wrongdoer freely chooses to violate society's rules."⁸ The amount of punishment, in the retributive view, should be calibrated with the moral wrongdoing encompassed by the defendant's crime. Importantly, retributivism's orientation is retrospective: A retribution based punishment system looks only backwards to the crime committed, without regard to the prospective effects of the punishment.

Proponents of retribution justify their view on different grounds. Some argue that "it is morally right to hate criminals."⁹ Since "the criminal has harmed society, it is right for society to 'hurt him back.' "¹⁰ Others argue that retributivism is justified not by the desire to harm wrongdoers, but rather as part of maintaining society's moral balance. Everyone is both benefitted and burdened by the rules of the criminal law. When a person commits a crime, she is extracting the benefit (the law abiding behavior of others) without undertaking the burden of actually following the law. Punishment, in this account, restores the moral equilibrium and actually respects the offender as an individual by treating her as a responsible moral agent. A third view justifies retribution on the ground that it "corrects" the "false moral claim" that a criminal's "rights and desires are more important than those of the victim."¹¹

Critics of retributivism contend that punishment is senseless when society receives no benefit from it; sentencing purely on the basis of the backward-looking perspective of retribution, without regard to the costs/benefits of the punishment, is a mistake. A further criticism of retributivism is that, whatever the strength of its philosophical foundations, its twin imperatives that all offenders be punished and that the punishment always fit the crime cannot be followed in a contemporary criminal justice system with its myriad offenses and offenders.¹² How much "desert" does a drunk driver have relative to a burglar? A tax-evader relative to a rapist? Indeed, critics ask, how can a retributivist (who, unlike a utilitarian, does not countenance cost/benefit analysis) tolerate a system that sometimes does not punish the guilty (or punishes less than they deserve) either as a result of prosecutorial discretion¹³ or plea bargaining,¹⁴ and that accepts more than the absolute minimum punishment of innocents (albeit unintentionally through erroneous convictions) in order to punish the guilty?¹⁵

[3] Deterrence

Deterrence (like incapacitation and rehabilitation, discussed below) is a utilitarian theory of punishment. "Utilitarians believe that the pain inflicted by punishment is justifiable if, but only if, it is expected to result in a reduction of the pain of crime that would otherwise occur."¹⁶ In contrast to retribution, utilitarian justifications for punishment examine the world prospectively; they depend on what the future effect of the punishment will be.

The goal of deterrence is generally separated between general deterrence and specific deterrence. General deterrence is the practice of punishing D "in order to convince the general community to forego criminal conduct in the future."¹⁷ In this view, the example of D's punishment — the message that those who commit crimes suffer rather than "getting away with it" — discourages others from committing crimes, and the harm thereby avoided justifies D's punishment. Specific deterrence is the practice of punishing D so that D herself will not offend in the future. D's punishment reminds her that if she commits more crimes she will suffer further punishment, and, once again, the harm thereby avoided justifies D's punishment.

Retributivists criticize deterrence as a justification for punishment "on the ground that it justifies using persons solely as a means to an end[,] . . . ignor[ing] the dignity and human rights of the wrongdoer."¹⁸ Moreover, a deterrence theory of punishment would seem to justify the state in punishing an innocent person — finding and framing a scapegoat — if the benefits in crime reduction outweighed the suffering of the innocent person punished. With regard to sentencing, even short of punishing an innocent, the crime prevention rationale of deterrence theory might lead to punishing out of proportion to moral desert. A mandatory punishment of twenty years' imprisonment for every instance of drunk driving, for example, might significantly reduce drunk driving and save multiple lives. Finally, the chances of being caught and punished are so slim, critics argue, that even a rational, calculating criminal — and many crimes actually are committed irrationally and impulsively — would have a difficult time estimating the actual chance of being punished.¹⁹ Indeed, even to consider such a calculus relevant to an everyday sentencing, one must overcome "the doubt whether most sentences ever register on the consciousness of the community."²⁰

[4] Incapacitation

Incapacitation's crime prevention rationale is straightforward: As long as D is in prison, she generally cannot commit crimes against society outside the prison walls. If D is executed, she is permanently incapacitated from committing crimes against others.

The criticisms of incapacitation are perhaps equally obvious: "[Offenders are incapacitated only as long as their confinement lasts. Thus, advocates of incapacitating prison sentences must logically endorse extremely long terms at enormous taxpayer expense,"²¹ and at great personal cost to the "incapacitated" offender. Indeed — like its utilitarian cousin, deterrence — incapacitation as a rationale for punishment risks punishing offenders out of proportion to their wrongdoing, or even in the absence of wrongdoing if society believes that it can accurately predict future wrongdoing (as incapacitation rationales assume — often erroneously). Moreover, like retribution, incapacitation rationales pose overwhelmingly difficult questions for legislatures, prosecutors and judges in deciding how much punishment is needed in particular cases or for particular crimes.

[5] Rehabilitation

Rehabilitation advocates seek to use the correctional system to reform the wrongdoer. Rather than changing her ways because of fear of future punishment, the rehabilitated offender will obey the law in the future as a result of the elimination of her motivations for offending. Rehabilitative methods thus include such corrective measures as drug treatment, psychiatric treatment and vocational training.

In the middle of the last century, rehabilitation became a dominant goal in criminal justice thinking.²² "Beginning in the early 1970's," however, "a widespread disaffection with rehabilitation as a theory and in practice took hold."²³ As a theory, rehabilitation was...