NCJ Number
61831
Journal
Hofstra Law Review Volume: 7 Issue: 2 Dated: (WINTER 1979) Pages: 379-405
Date Published
1979
Length
27 pages
Annotation
MAIN DIFFERENCES BETWEEN MAJOR PENAL RATIONALES AND THE CONSEQUENCES IMPLIED BY EACH ARE DELINEATED, AND RETRIBUTIVISM IS ADVOCATED AS THE MOST APPROPRIATE THEORETICAL BASIS FOR SENTENCING.
Abstract
THE COMMONLY ACCEPTED GOALS OF CRIMINAL SANCTIONS ARE RETRIBUTION, DETERRENCE, REHABILITATION, AND INCAPACITATION/ISOLATION. THE REHABILITATION MODEL PRODUCES INDETERMINATE SENTENCING, WHICH PROVIDES THAT THE PERIOD OF STATE INTERVENTION IN AN OFFENDER'S LIFE SHOULD CONTINUE UNTIL SATISFACTORY REHABILITATION OF THE OFFENDER HAS BEEN ACCOMPLISHED, REGARDLESS OF THE SERIOUSNESS OF THE OFFENSE. THIS MODEL HAS PRODUCED ARBITRARY AND UNJUST SENTENCES, PARTICULARLY DUE TO THE VARYING QUALITY OF REHABILITATION PROGRAMS FROM DIFFERENT JURISDICTIONS AND THE UNCERTAIN RESULTS ACHIEVED. DETERRENCE AIMS AT SETTING SENTENCES SO AS TO DETER ACTUAL OFFENDERS FROM REPEATING CRIMINAL BEHAVIOR AND DISCOURAGE POTENTIAL OFFENDERS FROM CHOOSING CRIMINAL BEHAVIOR. THE PRAGMATIC NATURE OF THE DETERRENCE THEORY MOVES TOWARD A SEPARATION OF A SANCTION FROM THE GRAVITY OF AN OFFENSE, WHICH TOO EASILY FUELS A TREND TOWARD HARSH SENTENCES. THE INCAPACITATION/ISOLATION GROUNDS FOR SENTENCING FAVORS IMPRISONMENT AS THE MEANS OF REDUCING CRIME. HOWEVER, LENGTHY IMPRISONMENTS INCREASE THE CHANCES OF RECIDIVISM UPON RELEASE, BECAUSE OF THE INABILITY OF THE EX-INMATE TO ADJUST TO SOCIETY AFTER THE CONDITIONINING OF EXTENDED IMPRISONMENT. THE RETRIBUTION THEORY PROPERLY ESTABLISHES A MORAL THEORY OF CRIMINAL CULPABILITY THAT INTENDS TO RECTIFY THE INJUSTICE CAUSED BY THE UNJUSTIFIED COMMISSION OF A PROSCRIBED ACT OR THE OMISSION OF A REQUIRED ACT. IT OPERATES UNDER THE BELIEF THAT A PERSON IS RESPONSIBLE FOR CHOSEN BEHAVIOR AND SHOULD RECEIVE PUNISHMENT PROPORTIONATE TO THE HARM INFLICTED UPON SOCIETY. RETRIBUTIVISM PROVIDES FOR A STRAIGHTFORWARD MATCHING OF PRECISE CRIMINAL PENALTIES TO THE PERCEIVED SEVERITY OF CATEGORIES AND SUB-CATEGORIES OF OFFENSES. THIS APPROACH DOES NOT PRECLUDE THE ACHIEVEMENT OF THE EFFECTS OF THE OTHER MAJOR SENTENCING RATIONALES, AND IT ASSURES THAT THE UNJUST CONSEQUENCES ATTENDING THEIR FOUNDATIONAL USE IN SENTENCING ARE AVOIDED. FOOTNOTES ARE PROVIDED. (RCB)