NCJ Number
47738
Journal
Journal of Criminal Justice Volume: 6 Issue: 1 Dated: (SPRING 1978) Pages: 35-46
Date Published
1978
Length
12 pages
Annotation
A CRITICAL EXAMINATION OF THE COMMITTEE FOR THE STUDY OF INCARCERATION'S PROPOSED DESERT-BASED SCHEDULE FOR DETERMINATE SENTENCING IS PRESENTED. THE FOCUS IS ON FAIRNESS, DETERRENCE, AND REHABILITATION.
Abstract
UNDER THE PROPOSAL, SENTENCING DISCRETION WOULD BE TAKEN AWAY FROM THE JUDGE AND A LEGISLATIVELY MANDATED SCHEDULE OF SENTENCES WOULD BE IMPOSED. SUCH A SCHEDULE WOULD BE DETERMINED ON THE BASIS OF DESERVED PUNISHMENT FOR THE OFFENSE. A THEORY OF COMMENSURATE DESERTS MAINTAINS THAT ONE SHOULD GET THE BLAME/ PUNISHMENT HE HAS EARNED, AND THAT PUNISHMENT SHOULD NOT ANTICIPATE FUTURE OFFENSES WHICH MIGHT BE COMMITTED NOR PREDICT WHAT REHABILITATIVE LEVEL MIGHT BE REACHED; RATHER, PUNISHMENT SHOULD BE INVOKED SOLELY ON THE BASIS OF WHAT THE OFFENDING BEHAVIOR WARRANTS. THE THEORETICAL FRAMEWORK FOR THE COMMITTEE'S PROPOSAL, PRESENTED IN 'DOING JUSTICE' (VON HIRSCH, 1976), CONTAINS A NUMBER OF PROBLEMS. FOR VON HIRSCH, DESERT PLAYS AN ESSENTIAL ROLE IN SENTENCING. IT IS SUGGESTED THAT CONCEPT OF DESERT MIGHT BE BETTER SUITED TO LIMITING OR ESTABLISHING FAIRNESS OF THE SENTENCE, BUT THAT IT IS DIFFICULT TO SEE HOW IT MAY BE USED TO ACTUALLY ESTABLISH SENTENCES. FURTHER DIFFICULTIES ARISE IN DETERMINATIONS OF THE SERIOUSNESS OF THE OFFENSE, FOR SERIOUSNESS INVOLVES COMPONENTS OF BOTH HARM AND CULPABILITY. IT IS QUESTIONED WHETHER THE TAXONOMY OF OFFENSES IS SOPHISTICATED ENOUGH TO WARRANT SENTENCES BASED ON HARM DONE OR RISKED FOR ANY GIVEN TYPE OF OFFENSE. FURTHER, GIVEN THE CRITERIA OF DESERTS IT WOULD SEEM THAT THE DISADVANTAGED OFFENDER MIGHT BE LESS CULPABLE AND THEREFORE DESERVING OF LESS PUNISHMENT THAN A MORE ADVANTAGED OFFENDER. THE USE OF PRIOR CRIMINAL RECORD AS DETERMINANT OF SEVERITY OF OFFENSE AND THUS PUNISHMENT IS ADVOCATED BY THE COMMITTEE, AND LIGHT SENTENCES FOR FIRST OFFENDERS ARE JUSTIFIED ON THE GROUNDS THAT A SEVERE PUNISHMENT FOR ONE MISTAKE IS UNFAIR TO DISADVANTAGED OFFENDERS WHO HAVE FEWER OPTIONS FOR THEIR CHOICE OF BEHAVIORS. WHY THIS ARGUMENT IS NOT APPLICABLE TO LATER OFFENSES IS UNCLEAR. FURTHER, HOW CAN A THEORY BASED ON DESERTS JUSTIFY THE SENTENCING DISPARITIES THAT WOULD OCCUR AS A RESULT OF DISPARITIES IN APPREHENSION FOR AN OFFENSE? VON HIRSCH'S ARGUMENTS AGAINST A REHABILITATIVE MODEL OF PUNISHMENT ON THE BASIS THAT IT CREATES INJUSTICES THROUGH COERCION AND DISPROPORTIONATE LENIENCY OR SEVERITY ARE REVIEWED. A MAJOR PROBLEM WITH USING DESERTS IN SENTENCING DECISIONS ARISES FIRST FROM THE CASUAL USE THAT IS MADE OF THE TERM WITHOUT REFERENCE TO THE DIFFICULT EMPIRICALLY NONVERIFIABLE PROBLEMS INVOLVED IN ITS USE AS A STANDARD FOR BALANCING PUNISHMENT AIMS. FINALLY, WITH THE CONCEPT OF DESERT, THERE IS A GREAT TENDENCY TO IGNORE PUNITIVE MEASURES OTHER THAN IMPRISONMENT. IT IS CONCLUDED THAT BECAUSE A PRINCIPLE SUCH AS DESERTS MAY BE ABUSED, PRESUMPTIVE SENTENCES MAY APPEAR MORE JUST AND APPROPRIATE THAN WARRANTED. A MUCH MORE RIGOROUS PHILOSOPHICAL TREATMENT OF DESERTS WILL BE NEEDED BEFORE IT MAY BE USED AS A PUNISHMENT SCHEDULE. NOTES AND REFERENCES ARE INCLUDED.