NCJ Number
61824
Journal
Hofstra Law Review Volume: 7 Issue: 1 Dated: (FALL 1978) Pages: 123-138
Date Published
1978
Length
16 pages
Annotation
A STRUCTURE FOR SENTENCING DETERMINED SOLELY BY A DETERRENCE RATIONALE IS PROPOSED AND EXPLAINED.
Abstract
THE SOLE PURPOSE OF LAW SANCTIONS SHOULD BE TO DETER THE BEHAVIOR PROHIBITED. THIS RATIONALE IS BASED IN THE BELIEF THAT 'NORMAL' HUMAN BEHAVIOR IS DETERMINED BY A PERSON'S WEIGHING THE REWARDS AND PAINFUL CONSEQUENCES LIKELY TO ATTEND ALTERNATIVE BEHAVIORS. FOR EXAMPLE, THE REWARD OF IMMEDIATE WEALTH THAT CAN BE GAINED FROM STEALING MAKES SUCH BEHAVIOR ATTRACTIVE; HOWEVER, THE AWARENESS THAT SUCH BEHAVIOR WILL NOT BRING SUCH REWARDS, BUT PAINFUL CONSEQUENCES, WILL DETER STEALING BEHAVIOR IN FAVOR OF LAWFUL MEANS FOR ACQUIRING WEALTH. ALTHOUGH THERE IS A MINORITY ELEMENT IN ANY POPULATION WHOSE MENTAL PROCESSES DO NOT CONFORM TO THIS DETERRENT RATIONALE, THERE IS NO REASON TO ABANDON IT AS A MEANS OF SOCIAL CONTROL FOR THE MAJORITY WHO DO ACT ACCORDING TO THE PLEASURE-PAIN PRINCIPLE OF LAW PENALTIES. THE SERIOUSNESS OF A SANCTION WILL BE DETERMINED BY A SOCIETY'S COMMITMENT TO THE NEED TO DETER VARIOUS BEHAVIORS ACCORDING TO THE THREATS VARIOUS BEHAVIORS POSE TO THE SOCIECONOMIC AND POLITICAL ORDER OF A SOCIETY AND THE LIVES OF INDIVIDUAL CITIZENS. IF THE DETERRENT FUNCTION OF SANCTIONS IS TO BE REALIZED, THE CERTAINTY THAT THE LAW'S PRESCRIBED CONSEQUENCES WILL FLOW FROM THE PROSCRIBED DEED MUST EXIST IN THE MINDS OF POTENTIAL OFFENDERS. THE CULTIVATION OF THIS CERTAINTY IS SERVED BY HIGH CLEARANCE RATES AND DETERMINATE SENTENCES THAT LIMIT THE DISCRETION INVOLVED IN SENTENCING. DETERMINATE SENTENCING INFORMS THE PUBLIC THAT CERTAIN CONSEQUENCES WILL SURELY FOLLOW FROM CONVICTION FOR CRIMINAL BEHAVIOR. THE AWARENESS THAT DETRIMENTAL CONSEQUENCES WILL CERTAINLY ACCOMPANY CRIMINAL BEHAVIOR BECOMES A STRONG INCENTIVE TO MODIFY BEHAVIOR. IN CASES WHERE PERSONS ARE CLEARLY IMMUNE TO THE DETERRENT FUNCTION OF SANCTIONS, INCAPACITATION MUST BE USED TO ASSURE THAT THE THREATENING BEHAVIOR CANNOT BE INFLICTED ON THE PUBLIC. FOOTNOTES ARE PROVIDED.