Punishment purposes.

• Author: Frase, Richard S.

INTRODUCTION I. OVERVIEW OF CONTEMPORARY SENTENCING PURPOSES AND LIMITATIONS A. Utilitarian Purposes and Limitations B. Nonutilitarian Purposes and Limitations C. Utilitarian Proportionality and Uniformity D. Conflicts Within and Across Punishment Principles II. RECONCILING CONFLICTING PUNISHMENT PRINCIPLES: LIMITING RETRIBUTIVISM A. The Limits of the Criminal Law as an Instrument of Crime Control B. Illustrative Cases CONCLUSION INTRODUCTION

The reform goal of promoting reasonable consistency and reducing disparity in sentencing is meaningless without a frame of reference--consistency or disparity relative to what underlying principles? (1) In order to decide that two offenders are similarly situated and thus should receive similar sentences (or that they are dissimilar and should receive different sentences) we must first define the relevant sentencing factors (the offense and offender characteristics that judges should consider in determining appropriate sentences) and the weight to be given to each of these factors. The choice and weighting of sentencing factors depends, in turn, on the punishment purposes which the sentence is supposed to serve.

Sentences can serve many purposes, and these purposes are often in conflict. Some of the most difficult conflicts are between proportionality principles, on the one hand, and case-specific crime-control or restorative-justice purposes, on the other. Proportionality serves both retributive (just deserts) and practical (utilitarian) sentencing purposes. Under a retributive theory, sanctions should be scaled in proportion to each offender's blameworthiness, and equally culpable offenders should receive equally severe sanctions. Sentencing proportionality and uniformity also have practical benefits, such as reinforcing public views of relative crime seriousness and maintaining public respect for criminal laws and the criminal justice system.

But realizing the goal of efficiently preventing future crime sometimes requires unequal or disproportional treatment. For example, if two first-time offenders commit the same crime but one has genuine feelings of remorse, strong family ties, and other indications of amenability to supervision and low risk of reoffending, putting that offender on probation and sending his much riskier counterpart to prison saves scarce correctional resources while still promoting public safety. But doing so produces disparate sentences for equally culpable offenders and undercuts the practical values served by uniformity and proportionality.

The best solution to conflicts such as this is not to adopt a narrow punishment theory (e.g., one based solely on retributive or risk-management goals), but rather to design a hybrid sentencing system that gives appropriate scope to all legitimate sentencing purposes. The hybrid approach adopted by most state guidelines systems is a version of the theory of limiting retributivism. Under this approach, principles of uniformity and proportionality relative to crime seriousness and offender desert set upper and lower limits on sentencing severity. Within the range defined by these limits, other principles provide the necessary fine-tuning of the sentence imposed in a particular case. These other principles include not only traditional crime-control purposes such as deterrence, incapacitation, and rehabilitation, but also a concept known as parsimony--a preference for the least severe alternative that will achieve the purposes of the sentence. The parsimony principle recognizes that severe penalties are expensive and usually harmful to offenders and that the crime-control benefits of such penalties are uncertain and often quite limited. Severe penalties should therefore be used as sparingly as possible.

Part I of this Article provides a brief overview of contemporary sentencing purposes and discusses some of the many ways in which these purposes conflict with each other. Part II describes the theory of limiting retributivism and shows the widespread support that exists for this theory among sentencing philosophers, in model codes and standards, and in contemporary sentencing law and practice, particularly in state guidelines systems. Several illustrative cases are used to show how limiting retributivism reconciles conflicting punishment purposes. The Conclusion emphasizes the importance of clearly defining and reconciling such purposes, both in designing a sentencing system and in deciding what sanctions are appropriate in a given case. It also offers suggestions for how courts and Congress could reinforce the limiting retributive elements which are implicit in the Federal Guidelines' enabling legislation.

1. OVERVIEW OF CONTEMPORARY SENTENCING PURPOSES AND LIMITATIONS

   Unless criminal penalties serve valid purposes, they impose useless costs and hardship. Even when the purposes are valid, punishment may be limited by moral values or practical concerns. Punishment purposes are positive, justifying principles; punishment limitations are negative, restraining principles. It is important to clearly define these positive and negative principles and to guide judges in their application.

   In an indeterminate sentencing system, (2) the legislature usually only provides a very general, all-inclusive list of sentencing purposes and limitations, giving little or no guidance to system actors (prosecutors, trial and appellate judges, parole and other correctional officials) as to how these principles should be defined and applied in specific cases. Some state guidelines commissions have provided such definitions and guidance. (3) The United States Sentencing Commission chose not to, (4) and federal trial and appellate judges have not done so either. (5) As a result, federal sentencing is no more coherent and principled today than it was before the Federal Sentencing Guidelines were adopted. The overall structure and specific provisions of the existing Guidelines lack any clear underlying or principled basis, and judges called upon to interpret the Guidelines have thus been left to invoke whatever purposes and limitations they prefer.

   Why should violators of criminal laws be punished, and what principles should be recognized to limit the type and degree of punishment? (6) Punishment purposes and limitations are traditionally grouped in two categories: utilitarian and nonutilitarian. Utilitarian purposes and limitations seek to achieve beneficial effects (or a net benefit) and, in particular, lower frequency and/or seriousness of future criminal acts by this offender or others. Nonutilitarian punishment purposes and limitations embody principles of justice and fairness which are viewed as ends in themselves, without regard to whether they produce any particular social or individual benefit.

   While these two major categories of punishment purposes and limitations are conceptually separate, in practice they are often closely linked. As discussed more fully below, although proportionality and uniformity in sentencing are often claimed to be ends in themselves, each also has important utilitarian value. Sentences which depart greatly from widely held views of proportionality and uniformity may fail to prevent future crime and may even encourage crime by undermining the public's ability to gauge the relative seriousness of crimes and by lessening respect for criminal laws and the criminal justice system.

   1. Utilitarian Purposes and Limitations

      The most widely adopted utilitarian sentencing principles focus on using criminal penalties to prevent or lessen the seriousness of future criminal acts by the offender being sentenced and/or by other, would-be offenders. Criminal penalties have the potential to achieve these crime-control effects through at least five causal mechanisms: rehabilitation, incapacitation, specific deterrence, general deterrence, and denunciation. Each of these methods depends on certain critical assumptions and conditions for its effectiveness.

      The first three methods seek to prevent future crimes by this particular offender; these methods thus assume both that certain defendants have an elevated risk of reoffending (justifying special measures addressed toward them specifically) and that these offenders and their degree of elevated risk can be identified in advance. Rehabilitation further assumes that the offender has identifiable and treatable problems which cause him to commit crimes; this approach seeks to reduce the offender's future criminality by addressing those causes through education and treatment in prison or in a nonprison program. Incapacitation prevents crime by imprisoning high-risk offenders, thus physically restraining them from committing further crimes against the public. This crime-control method assumes not only that such offenders can be reliably identified but also that they are not made worse by imprisonment, and that--while in custody--they are not replaced by other offenders. (7) Specific deterrence (also known as special or individual deterrence) seeks to discourage the defendant from committing further crimes by instilling fear of receiving the same or a more severe penalty in the future.

      Rehabilitation and incapacitation are the most important sentencing purposes underlying traditional indeterminate sentencing systems. (8) Judges are given very broad discretion to assess the degree of risk posed by the offender, diagnose the causes of that risk, assess whether those causes can effectively and safely be treated without incarceration, and, if they cannot, decide the maximum and sometimes the minimum term of incarceration. Within the maximum and any minimum prison term set by the judge, correctional officials and parole boards are given very broad discretion to further assess the causes of the offender's criminality, the best treatment options available to address those causes, and the precise moment at which, due to prison programming and/or other factors (e.g., maturation...