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Criminology Punishment Justification and Goals
by
Richard S. Frase

Introduction

Criminal punishments are government sanctions imposed on persons convicted of criminal acts (other forms of punishment, not dealt with in this bibliography, include measures imposed by parents on their children, by organizations on their members, by employers, etc.). Criminal punishment requires clear and convincing justification for two essential reasons. First, such punishment is, almost by definition, unpleasant and harmful to the offender, at least in the short term: it deliberately brands and stigmatizes that person as a wrongdoer, usually involves some loss of liberty or other harsh treatment, and often causes harm to the offender’s family. Second, punishment consumes scarce public resources that might be better spent on other pressing needs, or better spent on alternate ways of achieving the supposed justification(s) for the punishment. Punishment justifications and goals can be either positive or negative criteria: they can provide moral and/or practical arguments in favor of the punishment, or they can set limits on the type or degree of punishment that it is permissible to impose under one or more of the positive rationales. Whether positive or negative, punishment justifications and goals fall into two major categories. So-called deontological rationales and limits evaluate a particular punishment according to its inherent value—whether it is a good or a bad thing in itself, regardless of whether the punishment yields good or bad consequences. The second category of rationales and limits are “consequentialist” (or utilitarian); punishment is justified and limited according to whether it produces good or bad effects, in particular whether it tends to decrease future criminal acts by the offender and/or other would-be offenders. Some theories of punishment belong entirely to one or the other of these two main categories, but a number of hybrid or mixed theories have been proposed, incorporating both deontological and consequentialist principles, and most modern legal systems take this approach.

General Overviews

Bedau and Kelly 2010 provides a broad overview of traditional consequentialist and deontological theories of punishment and the evolution of these theories over time. Duff 2010 also reviews consequentialist and retributive theories, expanding his coverage to include a discussion of mixed, restorative, and abolitionist theories of punishment. Greenawalt 2001 reviews various punishment theories and notes how each theory is related to sentencing practices and to principles governing criminal procedure and criminal liability. Hart 2008 gives a philosophical perspective on punishment and the questions of who, why, and how society should choose to punish. Tonry 2006 discusses a broad range of legitimate and illegitimate punishment purposes, and proposes a model system.

  • Bedau, Hugo A., and Erin Kelly. 2010. Punishment. In The Stanford encyclopedia of philosophy. Edited by Edward N. Zalta.

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    Reviews consequentialist and deontological theories, their common features, changing emphasis given to each over time, and writings analyzing those changes. Asserts that punishment is inherently retributive but should also serve consequentialist purposes (especially incapacitation) and respect the principle of miminalism (of two equally effective penalties, the less severe is better).

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  • Duff, Antony. 2010. Legal punishment. In The Stanford encyclopedia of philosophy. Edited by Edward N. Zalta.

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    Reviews consequentialist, retributive, mixed (hybrid), restorative, and abolitionist theories of punishment. Also examines how the justification of punishment depends on the existence and justifications for the criminal law and the state itself. Emphasizes one version of retributive theory based on the expressive or communicative character of punishment.

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  • Greenawalt, Kent. 2001. Punishment. In Encyclopedia of crime and justice. Vol. 3. 2d ed. Edited by Joshua Dressler, 1282–1294. New York: Macmillan Reference USA.

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    A broad overview of the concept of punishment and various theories purporting to justify it, including retributive, utilitarian (consequentialist), and mixed (hybrid) theories. Examines how 20th-century changes in sentencing practice reflected changes in theory, and how sentencing theory is linked to principles governing criminal procedures and criminal liability.

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  • Hart, Herbert L. A. 2008. Punishment and responsibility: Essays in the philosophy of law. 2d ed. Oxford: Oxford Univ. Press.

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    Chapter 1 defines “punishment” (unpleasant consequences, imposed intentionally and officially, on an actual or supposed offender), and argues that different justifications (e.g., retributive, utilitarian) may apply to the institution of punishment (why punish anyone?), the selection of persons to be punished, and the type or severity of punishment. First edition published in 1968 (Oxford: Clarendon).

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  • Tonry, Michael. 2006. Purposes and functions of sentencing. In Crime and justice: A review of research. Vol. 34. Edited by Michael Tonry, 1–53. Chicago: Univ. of Chicago Press.

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    Reviews the current fragmented state of sentencing theory; proposes a model system employing legally binding guidelines based on limiting retributivism but accommodating treatment and restorative justice programs; the system should pursue purposes that are “primary” (e.g., rehabilitation) or “ancillary” (e.g., system efficiency), while rejecting illegitimate “latent” goals such as political advantage.

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Readers and Journals

Duff and Garland 1994 and von Hirsch, et al. 2009 differ in their scope and depth. Duff and Garland 1994 provides more in-depth coverage of a narrower set of philosophical, sociological, and empirical issues. Von Hirsch, et al. 2009 covers a broader range of punishment topics, but in less detail. Alison Liebling and Dirk van Zyl Smit edit the journal Punishment and Society: The International Journal of Penology, which compiles contemporary, cutting-edge perspectives on various criminology, sentencing, and punishment issues.

  • Duff, R. Antony, and David Garland, eds. 1994. A reader on punishment. Oxford: Oxford Univ. Press.

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    Reprints fourteen essays by leading scholars, each preceded by a “preface” and reference list highlighting key points in the essay and raising potential or actual criticisms. The reader’s lengthy introduction (itself containing a substantial reference list) emphasizes the value of combining philosophical, sociological, and empirical perspectives when studying punishment.

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  • Punishment and Society: The International Journal of Penology.

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    Published four times a year and available online by subscription, this international, peer-reviewed journal focuses on punishment, penal institutions, and penal control, from the perspectives of criminology, penology, sociology of punishment and penal institutions, penal history, penal law, sentencing theory, and philosophy of punishment. Includes a book review section. In 2010, edited by Alison Liebling and Dirk van Zyl Smit.

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  • von Hirsch, Andrew, Andrew Ashworth, and Julian Roberts, eds. 2009. Principled sentencing: Readings on theory and policy. 3d ed. Oxford: Hart.

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    Contains forty-four short excerpts in chapters devoted to rehabilitation, deterrence, incapacitation, just deserts, restorative justice, structuring sentencing discretion, sentencing young offenders, and problems of race. Each chapter begins with an introduction to the topic and the excerpts, with a short list of further readings.

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Debate

The primary debate is between proponents of deontological (especially, retributive) theories of the purposes of punishment, and those who favor consequentialist purposes or a hybrid approach. Hart 1958 and Robinson 2008 support the latter approach, but with emphasis on retributive values. Hart 2008 points out that different theories might be appropriate for different issues related to punishment. Christie 1977 argues that both the criminal law and punishment are illegitimate. Golash 2005 attacks punishment as causing more harm than it prevents, and as less effective than social programs aimed at the underlying causes of crime. Duff 1996, Honderich 2006, Primoratz 1989, and Walker 1991 each provide useful overviews of objections raised against consequentialist and retributive theories. Duff also discusses penal abolitionism, and promotes a communicative theory; Honderich advocates a “humanitarian” approach; Primoratz emphasizes an expressive version of retributivism; Walker proposes a modified form of consequentialism.

  • Christie, Nils. 1977. Conflicts as property. British Journal of Criminology 17:1–15.

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    Argues in favor of penal abolitionism on the grounds that the concept of publicly defined crimes (and thus, also publicly administered punishment) is illegitimate, since it involves “stealing” a conflict whose resolution properly belongs to the victim.

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  • Duff, R. Antony. 1996. Penal communications. In Crime and justice: An annual review of research. Vol. 20. Edited by Michael Tonry, 1–97. Chicago: Univ. of Chicago Press.

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    Reviews major punishment theories, including penal abolition, and the problems with each. Argues that problems with consequentialist and retributive theories can best be resolved by adopting a communicative account of punishment designed to cause the offender to repent his or her wrongdoing and seek to repair the damage done.

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  • Golash, Deirdre. 2005. The case against punishment: Retribution, crime prevention, and the law. New York: New York Univ. Press.

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    Argues that criminal punishment is morally unjustified because its crime-reducing benefits are outweighed by the harm done to offenders, and because crime can be reduced more effectively by addressing social problems such as poverty and social disorder. Focus should be on restoring victims and encouraging offenders to reconcile with society.

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  • Hart, Henry M., Jr. 1958. The aims of the criminal law. Law and Contemporary Problems 23:401–441.

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    Argues that the criminal law does and should try to achieve multiple purposes and limitations but insists that the distinguishing feature of criminal conviction and punishment, compared to noncriminal measures, is (and should remain) the accompanying judgment of the community’s moral condemnation of the offender’s blameworthy conduct.

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  • Hart, Herbert L. A. 2008. Punishment and responsibility: Essays in the philosophy of law. 2d ed. Oxford: Oxford Univ. Press

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    Distinguishes between justifications for the institution of punishment (why punish anyone?), selection of persons to be punished, and the form of punishment. Applies a consequentialist theory to the first question, a limiting retributivism theory to the second, and both theories to the third (severity must be both useful and deserved).

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  • Honderich, Ted. 2006. Punishment: The supposed justifications revisited. London: Pluto.

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    Reviews three “families” of punishment theory (backward-looking, utilitarian prevention, and offender reform), and compromise (hybrid) theories. Identifies grievance satisfaction as an element underlying retributive claims, and examines the problem of determinism under different theories. Concludes that punishment is only “right” if it protects people from bad (disadvantaged) lives.

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  • Primoratz, Igor. 1989. Justifying legal punishment. Atlantic Highlands, NJ: Humanities Press International.

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    Examines several prominent theories of punishment and the arguments against each; ultimately argues for a retributive approach based on the inherent necessity for society to denounce blameworthy acts and express disapproval of them in concrete terms that show that the offender’s act and the norm violated are taken seriously.

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  • Robinson, Paul H. 2008. Distributive principles of criminal law: Who should be punished how much? New York: Oxford Univ. Press.

    DOI: 10.1093/acprof:oso/9780195365757.001.0001Save Citation »Export Citation »E-mail Citation »

    Considers and rejects nonretributive sentencing principles, including deterrence, rehabilitation, incapacitation, restorative justice, and various hybrids. Proposes a new hybrid model strongly based on “empirical” desert—data on the public’s shared intuitions of deserved penalties; in the author’s view, the available data show strong public consensus as to common offenses.

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  • Walker, Nigel. 1991. Why punish? Oxford: Oxford Univ. Press.

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    Reviews utilitarian (consequentialist) and retributive theories, compromise (hybrid) theories, and the problems with each of these. Argues that retributive theories have irreparable flaws, whereas objections to utilitarian goals have been overstated. Notes that utilitarian-based severity can be limited by humanitarian concerns, not just retributive ones.

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Deontological Punishment Purposes and Limitations

Deontological rationales and limits evaluate a particular punishment according to its inherent value—whether it is a good or a bad thing in itself, regardless of whether the punishment yields good or bad consequences. The best-known deontological punishment theory is retribution, also known as the theory of just deserts. Another deontological punishment principle is uniformity or equality: similarly situated offenders should receive similar penalties, and differently situated offenders should receive different penalties. But notions of uniformity, equality, or “disparity” are empty concepts unless combined with an underlying normative theory for determining which offenders should be deemed “similarly situated.” This issue will not be further examined here because, in recent years, appeals to uniformity have usually assumed retributive values as the underlying framework (or have taken a purely formalistic approach, stating that offenders convicted of the “same” crime with “similar” prior conviction records should receive “similar” sanctions). Other deontological normative principles, which serve as limitations on punishment imposed to achieve other purposes, include the avoidance of disparities based on race or other clearly illegitimate criteria; the requirement that punishment respect norms of humane treatment and human dignity, as embodied in constitutional and human rights provisions; and procedural fairness.

Retributivism

The retributive, or “just deserts,” theory of punishment holds that offenders are punished because their criminal acts render them morally blameworthy and deserving of punishment. An offender’s degree of blame focuses primarily on the crime(s) for which the punishment is being imposed, although broader notions of desert take into account the offender’s convictions for offenses committed before the current offense(s) and sometimes also include the moral worthiness of the offender’s behavior between the commission of the act(s) being punished and the time punishment is imposed. Adherents of a narrower concept of desert disagree about whether and to what extent punishment may be increased based on crimes committed and sentenced prior to the current crime(s); some writers forbid any such consideration, while others accept that prior convictions modestly increase an offender’s blameworthiness for the current offense(s). Some American sentencing guidelines systems that claim to be based on a retributive model go even farther, allowing substantial sentence enhancements for prior convictions. In assessing an offender’s degree of blame for a particular offense, most retributive theorists consider two elements: the type and degree of harm caused or threatened by the offense, and the offender’s degree of personal culpability as measured by intent (mens rea), good or bad motives, role in the offense (leader, minor player, etc.), and mental illness or other diminished capacity to obey the law. Retribution can serve as either a positive or a negative punishment criterion (works that examine and defend the negative or “limiting” version of retributivism are discussed later, in Hybrid Theories of Punishment). Feinberg 1970, Moore 1997, and von Hirsch and Ashworth 2005 thoroughly explore retributive principles. Dolinko 1992, Hudson 1987, Kolber 2009, Murphy 1973, and Ristroph 2006 criticize aspects of retributive theory.

  • Dolinko, David. 1992. Three mistakes of retributivism. UCLA Law Review 39:1623–1657.

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    Critiques three arguments made by those favoring a strongly retributive theory of punishment: (1) that the offender’s desert is a sufficient moral justification for punishing him or her; (2) that deterrence theory improperly “uses” persons, while retributivism does not; and (3) that retributive punishment is necessary to accord proper respect to the personhood of offenders.

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  • Feinberg, Joel. 1970. Justice and personal desert. In Doing and deserving. By Joel Feinberg, 55–94. Princeton, NJ: Princeton Univ. Press.

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    Examines what it means to say someone “deserves” something, in a variety of contexts: awards of prizes; assignments of grades; rewards and punishments; praise, blame, and other informal responses; and reparation, liability, and other modes of compensation.

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  • Hudson, Barbara. 1987. Justice through punishment: A critique of the “justice” model of corrections. New York: St. Martin’s.

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    Argues that just deserts models are wrong in principle, have promoted overuse of imprisonment in US and British systems, and have done little to reduce racial and other disparities. Concludes that overuse of incarceration must be tackled directly, not just by promoting rehabilitation or addressing social conditions that breed crime.

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  • Kolber, Adam. 2009. The subjective experience of punishment. Columbia Law Review 109:182–236.

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    Criticizes retributive punishment theories for ignoring individuals’ subjective punishment experiences—two people who commit the same crime and receive equal prison terms do not both receive punishments proportional to their desert if one is more sensitive than the other and finds incarceration to be more traumatic or unpleasant.

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  • Moore, Michael S. 1997. Placing blame: A theory of criminal law. Oxford: Oxford Univ. Press.

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    Argues for a purely desert-based approach to questions of criminal liability and punishment, responds to various criticisms of such a theory, and examines its applications to specific issues. Competing deontological values such as individual autonomy are also deemed relevant, along with (for trivial crimes or private activities) cost-benefit considerations.

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  • Murphy, Jeffrie G. 1973. Marxism and retribution. Philosophy and Public Affairs 2:217–243.

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    Defends retributivism as a morally credible theory of punishment but claims that the practical applicability of retributivism is limited because Marxist analysis reveals problems with determining just deserts when society itself is unjust.

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  • Ristroph, Alice. 2006. Desert, democracy, and sentencing reform. Journal of Criminal Law & Criminology 96:1293–1352.

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    Argues that desert concepts are too elastic, opaque, and nonfalsifiable by empirical evidence to provide meaningful limits on punishments. Elasticity is demonstrated by dramatic increases in penalties despite expressions of support for desert by officials and in opinion polls; opacity is shown when factors such as race masquerade as moral judgments.

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  • von Hirsch, Andrew, and Andrew Ashworth. 2005. Proportionate sentencing. Oxford: Oxford Univ. Press.

    DOI: 10.1093/acprof:oso/9780199272600.001.0001Save Citation »Export Citation »E-mail Citation »

    Proposes a desert model based on the concept of penal censure: punishment expresses societal blaming, so it must be directly proportional to blameworthiness. Examines how the model deals with issues such as juvenile delinquency, dangerous offenders, an offender’s social deprivation, the causes of escalating punishment severity, and restorative justice.

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Avoidance of Racial Bias and Disproportionality

Equal justice, especially in the treatment of racial groups, is an important negative deontological punishment criterion; sentencing disparities are problematic even if the sentences imposed meet all other deontological standards, and are justified on consequentialist grounds. Unfortunately, evidence suggests that the burdens of punishment, particularly incarceration, are disproportionately felt by certain social groups. Spohn 2000 contends that an offender’s race plays a significant role in determining the severity of his or her sentence, with minorities, on average, receiving harsher sentences than white offenders who have committed a similar crime. Tonry 1995 comments on how racial disparity is not only persistent but actually growing in prison populations. Tonry relates racial disproportionality of prison and jail populations to earlier stages of criminal justice processing, racial differences in offending, and social disadvantage, and proposes reforms. His later work (Tonry 2008) provides more recent data and finds that race helps explain the exceptional severity of US criminal justice compared to that in other developed nations. Clear 2008, Mauer 1999, and Western 2006 show how high incarceration rates reinforce the social disadvantage of minority offenders and their communities; Clear argues that high minority incarceration may actually increase crime rates in minority communities. American Law Institute 2003 and Mauer 2009 recommend that racial disparities be discouraged by requiring racial impact assessments for all proposed new or increased penalties.

  • American Law Institute. 2003. Model Penal Code: Sentencing, report. Philadelphia: American Law Institute.

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    This overview of the project to revise the sentencing and corrections provisions of the Model Penal Code, at pp. 89–106, notes the persistent racial disproportionality of jail and prison populations and proposes the use of racial impact assessments, modeled after the fiscal-impact assessments that have been successfully employed in sentencing guidelines systems.

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  • Clear, Todd R. 2008. The effects of high imprisonment rates on communities. In Crime and justice: A review of research. Vol. 37. Edited by Michael Tonry, 97–132. Chicago: Univ. of Chicago Press.

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    Provides evidence that incarceration is concentrated in communities of disadvantage, especially communities of color. Suggests that these high rates of incarceration negatively affect all members of the community by destabilizing families, damaging social networks, weakening labor markets, and in some cases leading to more crime, not less.

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  • Mauer, Marc. 1999. Race to incarcerate. New York: New Press.

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    Critiques the “tough on crime” movement and subsequent increasing incarceration rates as having little real effect on diminishing the incidence of crime, while disproportionately affecting minorities and furthering their social disadvantage in a variety of ways.

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  • Mauer, Marc. 2009. Racial impact statements: Changing policies to address disparities. Criminal Justice 23.4: 19–23.

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    Suggests that preparing racial impact assessments for proposed legislation that affects sentencing, probation, or parole policies is an important step toward minimizing racial disparity in the penal system.

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  • Spohn, Cassia. 2000. Thirty years of sentencing reform: The quest for a racially neutral sentencing process. In Criminal justice 2000. Vol. 3, Policies, processes, and decisions of the criminal justice system. Edited by National Institute of Justice, 427–501. Washington, DC: National Institute of Justice.

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    Provides evidence suggesting that race and ethnicity are significant factors influencing sentencing decisions. Contends that African American and Hispanic offenders are more likely than their white counterparts to be imprisoned, and often for longer periods of time.

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  • Tonry, Michael. 1995. Malign neglect: Race, crime, and punishment in America. New York: Oxford Univ. Press.

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    Documents persistent, growing, and foreseeable racial disproportionality in US prison populations and earlier stages of criminal processing and examines the sources of these disparities, including racial differences in social disadvantage and offending, police practices, the “war on drugs,” and sentencing laws. Proposes reforms to cause less harm to disadvantaged minorities.

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  • Tonry, Michael. 2008. Crime and human rights: How political paranoia, Protestant fundamentalism, and constitutional obsolescence combined to devastate Black America. Criminology 46:1–33.

    DOI: 10.1111/j.1745-9125.2008.00108.xSave Citation »Export Citation »E-mail Citation »

    Contrasts the inhumanity of US criminal justice and other policies compared with other developed nations; identifies race—the legacy of slavery and political exploitation of that—as one cause; updates Tonry 1995 on the causes and adverse consequences of racial disparities in arrest and incarceration.

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  • Western, Bruce. 2006. Punishment and inequality in America. New York: Russell Sage.

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    Discusses the substantial increase in prison populations since the 1970s, a trend characterized by a disproportionate number of inmates who are racial minorities or individuals with little education. Explores the many ways in which mass incarceration reinforces and perpetuates socioeconomic disparities.

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Humane Treatment and Human Dignity

Minimum constitutional and human rights–based standards of humane treatment and respect for human dignity provide additional negative deontological punishment criteria that may invalidate or limit penalties that would otherwise be viewed as justified. Frase 2008 explores standards imposed by the US federal and state constitutions, and Kurki 2001 examines standards found in regional and international human rights conventions. Whitman 2003 identifies differing conceptions of human dignity and honor as a factor explaining harsher punishments in the United States than in European nations.

  • Frase, Richard S. 2008. Limiting excessive prison sentences under federal and state constitutions. University of Pennsylvania Journal of Constitutional Law 11:39–72.

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    Argues that the Eighth Amendment’s three clauses (bail, fines, cruel and unusual punishment) have a common goal of protecting citizens from excessive measures. Summarizes state constitutional provisions prohibiting excessive punishment. Identifies one retributive and two utilitarian proportionality principles, and discusses federal and state cases employing these principles.

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  • Kurki, Leena. 2001. International standards in sentencing and punishment. In Sentencing and sanctions in Western countries. Edited by Michael Tonry and Richard S. Frase, 331–378. Oxford: Oxford Univ. Press.

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    Discusses limits on criminal liability and sentencing severity contained in provisions of regional and international human rights conventions, with emphasis on the European Convention for the Protection of Human Rights and Fundamental Freedoms and case law in the European Court of Human Rights and the European Court of Justice.

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  • Whitman, James Q. 2003. Harsh justice: Criminal punishment and the widening divide between America and Europe. Oxford: Oxford Univ. Press.

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    This study suggests that the substantial and growing contrast between severe US punishments and milder sanctions in continental European nations is explained in part by the greater European concern for human dignity and individual and family honor, which has led those nations to reject degrading penalties and conditions of confinement.

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Procedural Fairness

A third set of negative deontological punishment criteria imposes limits on the procedures employed to determine the factual basis for the sentence, and to decide on the specific sentence imposed; such procedures must be seen as fair by the offender, other would-be offenders, and the broader public. Failure to observe required sentencing procedures can invalidate or limit punishments that would otherwise be justified under other positive and negative punishment criteria. Packer 1968 provides a general assessment of issues of procedural fairness in criminal cases. Tyler 2003 argues that the public’s perception of procedural fairness is a key factor in ensuring compliance with the law. In Blakely v Washington the US Supreme Court held some of the procedural guarantees traditionally applicable to proof of crimes at trial are also constitutionally required in certain sentencing proceedings.

  • Blakely v Washington [2004] 542 US 296.

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    The Supreme Court found that the proof of facts which permit the imposition of an enhanced sentence under legally binding sentencing guidelines is subject to Sixth Amendment jury trial rights and due process standards of proof; such facts must therefore be submitted to the jury and proven beyond a reasonable doubt.

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    • Packer, Herbert. 1968. The limits of the criminal sanction. Stanford, CA: Stanford Univ. Press.

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      Contrasts two models of criminal process: The Crime Control model emphasizes efficient selection and punishment to achieve public safety, and the Due Process model emphasizes procedural safeguards and process values such as those embodied in the right to a public jury trial.

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    • Tyler, Tom R. 2003. Procedural justice, legitimacy, and the effective rule of law. Crime & Justice: A Review of Research 30:283–357.

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      Summarizes research showing how perceptions of procedural fairness affect people’s willingness to cooperate with and obey the law.

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    Crime Control and Other Consequentialist Purposes

    A second major category of punishment rationales and limits is “consequentialist” (also sometimes referred to as utilitarian, since that theory is the most widely known example of consequentialism): punishment is justified and limited according to whether it produces good or bad effects, in particular whether it tends to decrease future criminal acts by the offender and/or other would-be offenders. Criminal penalties have the potential to achieve these crime-control effects through a variety of causal mechanisms: deterrence of this or other would-be offenders through fear of punishment; incapacitation by physically restraining the offender; rehabilitation of the offender by addressing the underlying causes of his or her crimes; and moral education (also known as “denunciation,” or the communicative or expressive function of punishment), in which criminal penalties serve to define and reinforce important social norms of law-abiding behavior and relative crime seriousness. In addition to crime control, sentences may achieve several other important practical consequences: promoting satisfaction, closure, and/or compensation for crime victims and victimized communities; reassuring the public that something is being done about crime; and facilitating the offender’s successful reintegration into society. Each of these effects is desirable for its own sake and may also help to prevent future crimes by the defendant or other offenders. Several of these effects feature prominently in theories of restorative, community, and therapeutic justice, and in arguments favoring the use of shaming punishments. Finally, there are important administrative needs, such as the need to encourage guilty pleas, which often limit the form and severity of punishments imposed to serve other purposes. All of these consequentialist punishment purposes and limitations are, in theory at least, subject to empirical assessment of their effectiveness in achieving the desired goals.

    Deterrence

    Deterrence refers to the theory that the application of criminal sanctions prevents some amount of future crime because people will refrain from acting illegally for fear of being punished. Punishment of an offender can discourage him or her from offending again (specific deterrence), and the example of the offender’s punishment may discourage other would-be offenders (general deterrence). Andenaes 2002 provides an overview of deterrence theory and the various factors that can influence the strength of a punishment’s specific and general deterrent effects. Beccaria 1963 supports deterrence as a justification for punishment and suggests that the severity, swiftness, and certainty of punishment are important elements in determining its deterrent value. Bentham 1931 implicitly takes an economic approach to deterrence theory, and Becker 1968 does so explicitly; both claim that for punishment to have any deterrent effect a potential offender must believe that the cost of the crime (e.g., the severity or certainty of punishment) outweighs the advantage of committing it. In a society with limited law-enforcement resources, Kleiman 2009 argues that certainty and swiftness of punishment, rather than severity, are the most important factors in guaranteeing a deterrent effect, as they ensure that punishments are administered in a concentrated, conspicuous manner. Wilson 1983 and Zimring 1973 provide studies of the effectiveness of deterrence theory in application, examine the difficulties of measuring deterrence, and propose agendas for additional research.

    • Andenaes, Johannes. 2002. Deterrence. In Encyclopedia of crime and justice. Vol. 2. 2d ed. Edited by Joshua Dressler, 507–514. New York: Macmillan Reference USA.

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      Enumerates factors that influence the deterrent effectiveness of criminal punishments.

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    • Becker, Gary S. 1968. Crime and punishment: An economic approach. Journal of Political Economy 76:169–217.

      DOI: 10.1086/259394Save Citation »Export Citation »E-mail Citation »

      Discusses how economic theory can be used to ascertain the optimal level of law enforcement necessary to minimize the cost of crime in society.

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    • Beccaria, Cesare. 1963. On crimes and punishments. Translated by Henry Paolucci. Indianapolis, IN: Bobbs-Merrill.

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      English translation of Dei delitti e delle pene, first published in 1764. Proposes a utilitarian crime-control theory of punishment based strongly on deterrence, and identifies severity, promptness, and certainty as key elements of deterrent efficacy. Argues that even if offenders are not completely deterred, penalties proportionate to crime seriousness encourage them to commit less serious crimes.

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    • Bentham, Jeremy. 1931. The theory of legislation. Edited by C. K. Ogden. New York: Harcourt, Brace.

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      First published in 1802. Argues that punishment severity must be seen by the offender to exceed the advantage of the crime, and that greater penalties for more serious crimes give offenders an incentive to prefer less serious crimes. Agrees that promptness and certainty are important deterrent factors. Rejects punishment that has no deterrent effect.

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    • Kleiman, Mark. 2009. When brute force fails: How to have less crime and less punishment. Princeton, NJ: Princeton Univ. Press.

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      Argues that because punishment resources are relatively finite, criminal sanctions have the greatest deterrent effect when they are enforced in a concentrated manner, that is, when the sanctions are administered with a high level of certainty and swiftness, and deterrent threats are directly communicated to potential offenders.

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    • Wilson, James Q. 1983. Thinking about crime. Rev. ed. New York: Basic Books.

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      Explores difficulties of measuring deterrent effects of more severe penalties and crime-reducing effects of job creation; reviews cross-sectional, longitudinal, and experimental research on these effects; suggests that effective crime control requires a comprehensive understanding of human nature and the extent to which it can be changed by public policies.

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    • Zimring, Franklin, and Gordon J. Hawkins. 1973. Deterrence: The legal threat in crime control. Chicago: Univ. of Chicago Press.

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      A comprehensive study of the meanings of deterrence, factors determining its effectiveness and cost (in particular, marginal effectiveness and cost of increased punishment severity); research methods and measurement problems, and ethical concerns. Includes an agenda for research, specifying criteria for establishing research priorities and suggesting several topics meeting those criteria.

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    Incapacitation

    Incapacitation refers to the use of imprisonment as a means of directly preventing future offending by physically removing the offender from society. Incapacitation is deemed “selective” if it targets only high-risk offenders; “general” incapacitation effects result from the incarceration of larger numbers of offenders, regardless of their individual propensities or the specific goals of their incarceration. Canelo-Cacho 2001 reviews incapacitation theory and modern trends, but is critical of its effectiveness at reducing crime. Greenwood and Abrahamse 1981 proposes that selective incapacitation theory be used to determine offenders’ prison sentences. Zimring and Hawkins 1995 explores the history and methodology of incapacitation theory and research and argues that proponents of selective incapacitation have greatly overstated the crime-control benefits of that approach.

    • Canelo-Cacho, José A. 2001. Incapacitation. In Encyclopedia of crime and justice. Vol. 2. 2d ed. Edited by Joshua Dressler, 809–818. New York: Macmillan Reference USA.

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      Critically reviews the literature, methodological problems, and available evidence on the incapacitative effectiveness of incarceration to diminish the incidence of crime. Analyzes recent incapacitation trends and likely future developments.

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    • Greenwood, Peter W., and Allan Abrahamse. 1981. Selective incapacitation. Santa Monica, CA: RAND.

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      Contends that scarce prison space should be allocated by using objective actuarial evidence to identify and confine offenders who represent the most serious risk to the community.

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    • Zimring, Franklin E., and Gordon Hawkins. 1995. Incapacitation: Penal confinement and the restraint of crime. New York: Oxford Univ. Press.

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      Discusses the history of incapacitation theory and research, noting that this purpose by default has become the dominant purpose of incarceration. Explores the relationship between research on incapacitation and public policy formulation. Critiques selective incapacitation theories, arguing that in practice crime-control benefits will be much more limited than proponents claim.

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    Rehabilitation

    Rehabilitation theories of punishment aim to reduce an offender’s future criminal acts by treating the underlying causes of his or her crimes. Cullen and Santana 2001 provides a broad definition of rehabilitation theory and comments generally on its effectiveness at reducing recidivism. MacKenzie 2006 and Martinson 1974 both extensively analyze enacted rehabilitation programs to determine which ones are effective, and under what circumstances. Menninger 1968 proposes that punishments be based on rehabilitation ideals and community involvement. Musto 1987 chronicles the rise of drug rehabilitation programs in the criminal justice system. The National Institute of Corrections website reports the NIC’s work and explains the place of rehabilitation theory in recent correctional policy reforms.

    • Cullen, Francis T., and Shannon A. Santana. 2001. Rehabilitation. In Encyclopedia of crime and justice. Vol. 3. 2d ed. Edited byJoshua Dressler, 1314–1327. New York: Macmillan Reference USA.

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      Provides a comprehensive definition of rehabilitation theory and a historical review of the decline and fall of support for this punishment purpose; summarizes types of rehabilitation programs in the United States; examines whether rehabilitation “works” to reduce the likelihood that offenders will recidivate, and considers likely future trends.

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    • MacKenzie, Doris. 2006. What works in corrections: Reducing the criminal activities of offenders and delinquents. Cambridge, UK: Cambridge Univ. Press.

      DOI: 10.1017/CBO9780511499470Save Citation »Export Citation »E-mail Citation »

      Assesses the relative effectiveness of different rehabilitation and treatment programs (such as education, employment, therapeutic communities, cognitive behavior treatment, etc.) in reducing the recidivism of offenders and delinquents. Draws conclusions about which of these programs work, and which do not.

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    • Martinson, Robert. 1974. What works? — Questions and answers about prison reform. Public Interest 10:22–54.

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      This meta-analysis of several hundred evaluations of treatment and other rehabilitation-oriented programs concluded that these programs had rarely been shown to be effective in reducing future offending. Although the study was widely cited as proving that “nothing works,” Martinson emphasized that treatment can work under the right circumstances.

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    • Menninger, Karl. 1968. The crime of punishment. New York: Viking.

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      Rejects punishment based on vengeance in favor of a therapeutic, community-based, preventive approach.

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    • Musto, David. 1987. The American disease: Origins of narcotic control. Rev. ed. New York: Oxford Univ. Press.

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      Examines the history and evolution of drug laws. Notes that recent changes in the political and social climate have caused the public to call for drug treatment programs to be made available to criminal offenders for the purposes of rehabilitation.

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    • National Institute of Corrections.

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      Details the National Institute of Corrections’ efforts to shape and advance effective correctional practices and public policies, including those founded on rehabilitation ideals.

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    Facilitating Prisoner Reentry into the Community

    Incarcerated offenders face many problems following their release, and a high risk of repeat offending. Petersilia 2003 discusses the various social and economic struggles prisoners face when they return to society. Travis 2005 suggests a program to facilitate prisoner reentry that would rely heavily on the involvement of judges and the use of restorative justice theories.

    • Petersilia, Joan. 2003. When prisoners come home: Parole and prisoner reentry. New York: Oxford Univ. Press.

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      Discusses the problems faced by prisoners upon their return to society as a result of being largely uneducated, unskilled, without family support, and burdened with the stigma of a prison record. Suggests possible solutions for facilitating prisoner reentry.

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    • Travis, Jeremy. 2005. But they all come back: Facing the challenges of prisoner reentry. Washington, DC: Urban Institute.

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      Argues that judges, rather than traditional parole boards, should take on the role of reentry managers. Proposes that judges oversee a prisoner’s reintegration into the community by employing restorative justice techniques beginning at the time of sentencing and continuing after imprisonment until the offender completes his prescribed reentry program.

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    Moral Education

    Under the theory of moral education (also known as denunciation or the communicative or expressive function of punishment), criminal penalties serve to define and reinforce important social norms of law-abiding behavior and relative crime seriousness. Such norms guide and restrain behavior even when (as is often the case) the chances of detection and punishment are slight. Although moral education is usually viewed as a positive purpose of punishment, the Model Penal Code (American Law Institute 1962) appears to view this concept as a negative, restraining principle. The other sources cited in this section support a positive version of the moral education theory. Andenaes 1966, Feinberg 1970, and Robinson and Darley 1997 argue that punishment serves to communicate a message to the public regarding what is morally appropriate behavior and, thus, prevents acts that are socially undesirable. Duff 2001, Hampton 1984, and Morris 1981 propose that the relevant communicative body is not society but the individual offender.

    • American Law Institute. 1962. Model Penal Code: Proposed official draft. Philadelphia: American Law Institute.

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      Section 7.01, subd. 1(c) adopts a negative version of the moral education concept, expressing a strong preference for noncustodial sentences but specifying that a custodial sentence should be imposed, inter alia, if “a lesser sentence will depreciate the seriousness of the defendant’s crimes.”

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    • Andenaes, Johannes. 1966. The general preventive effects of punishment. University of Pennsylvania Law Review 114:949–983.

      DOI: 10.2307/3310845Save Citation »Export Citation »E-mail Citation »

      Suggests that the mere existence and application of the criminal law communicates a message to members of a society regarding what is morally inappropriate behavior, and thus prevents them from committing acts which are socially undesirable.

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    • Duff, R. Antony. 2001. Punishment, communication, and community. New York: Oxford Univ. Press.

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      Argues that punishment serves as a mode of moral communication between a political community and offenders, aimed at producing repentance, reform, and reconciliation with those whom they have wronged.

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    • Feinberg, Joel. 1970. The expressive function of punishment. In Doing and deserving. By Joel Feinberg, 95–118. Princeton, NJ: Princeton Univ. Press.

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      Contends that punishment serves an expressive function because it is a device for communicating the punishing authority’s judgments of disapproval and reprobation; in this way, punishment has a “symbolic significance.”

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    • Hampton, Jean. 1984. The moral education theory of punishment. Philosophy and Public Affairs 13:208–238.

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      Introduces the moral education theory of punishment, which holds that punishment is justified because it serves to teach a wrongdoer that his or her actions are forbidden because they are morally wrong.

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    • Morris, Herbert. 1981. A paternalistic theory of punishment. American Philosophical Quarterly 18:263–271.

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      Argues that punishment furthers several intrinsic “goods,” helping offenders appreciate the wrongfulness of their acts, desire to make amends, commit to avoid wrongdoing, and reinforce their sense of being a moral person; it also treats persons as morally autonomous individuals, free to develop their own conceptions of obedience and wrongdoing.

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    • Robinson, Paul H., and John M. Darley. 1997. The utility of desert. Northwestern University Law Review 91:453–499.

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      Argues that punishment in proportion to desert has crime-control value because such penalties create and reinforce norms of acceptable behavior, and because they foster public support for the criminal law, given that desert values are widely shared and people are more likely to obey rules they view as legitimate.

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    Nonretributive Proportionality Principles

    Proportionality is often thought of as an inherently retributive concept, but there are also two important utilitarian principles of proportionality that serve as additional limitations on the severity of criminal sanctions. Beccaria 1963, Bentham 1931, and Blackstone 1979 discuss both of these principles, referred to herein as ends-benefits proportionality and alternative-means proportionality. Ends-benefits proportionality requires that the costs and burdens of punishment (or of any increase in its severity) should not exceed the likely benefits (or added benefits) to be achieved. Alternative-means proportionality (often referred to as the principle of parsimony) posits that punishment is itself an evil (harmful to offenders, and costly), so punishing authorities should use the least severe punitive measures that will suffice under the circumstances. The American Law Institute 2007, in laying out revised provisions of the Model Penal Code, supports the principal of parsimony by stating that punishment should be no more severe than is necessary to achieve its desired effects. Frase 2008 shows how the ends-benefits and alternative-means principles have been applied in American case law. Ristroph 2005 argues that proportionality principles should serve as limits on the severity of punishment in all cases, regardless of whether one supports retributive, utilitarian, or other purposes of punishment.

    • American Law Institute. 2007. Model Penal Code: Sentencing, tentative draft no. 1 (approved May 16, 2007). Philadelphia: American Law Institute.

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      Section 1.02(2)(a)(iii) states that sentences should be no more severe than necessary to achieve the applicable purposes of the sentence; the commentary at pp. 13–14 explains and defends this principal of “parsimony.”

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    • Beccaria, Cesare. 1963. On crimes and punishments. Translated by Henry Paolucci. Indianapolis, IN: Bobbs-Merrill.

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      English translation of Dei delitti e delle pene, first published in 1764. Advances utilitarian arguments for a version of ends-benefits proportionality (penalties proportional to the seriousness of the offense, as measured by the harm done to society), and also for alternative-means proportionality—punishments should be necessary, the least possible in the circumstances.

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    • Bentham, Jeremy. 1931. The theory of legislation. Edited by C. K. Ogden. New York: Harcourt, Brace.

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      First published 1802. Develops utilitarian ends-benefits proportionality arguments: more harmful crimes justify more expensive preventive measures, and the evil of the punishment should not exceed the evil of the offense. Also advocates alternative-means proportionality: punishment is an evil, to be used as sparingly as possible, avoiding “superfluous” penalties when less severe measures would suffice.

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    • Blackstone, William. 1979. Commentaries on the laws of England. Chicago: Univ. of Chicago Press.

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      First published 1769. Cites Beccaria 1963 in support of English common law principles: the greater the harm, the more care should be taken to prevent it, so the punishment should be more severe; also, punishment must be proportioned to the particular purpose it is meant to serve and never exceed that purpose.

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    • Frase, Richard S. 2008. Limiting excessive prison sentences under federal and state constitutions. University of Pennsylvania Journal of Constitutional Law 11:39–72.

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      Explains the concepts of utilitarian ends-benefits and alternative means proportionality, and discusses federal and state cases applying these concepts.

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    • Ristroph, Alice. 2005. Proportionality as a principle of limited government. Duke Law Journal 55:263–331.

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      Argues that proportionality principles found in philosophical and political writings, and in numerous constitutional contexts, can and should serve as external limits on punishment severity—external in the sense that these principles apply no matter what purposes of punishment have been endorsed in a given jurisdiction.

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    Restorative, Community, and Therapeutic Justice

    Restorative justice focuses on the needs of victims, offenders, and the community as a whole, rather than on the need to exact punishment. Braithwaite 1999 provides a broad overview of restorative justice theory from both optimistic and pessimistic perspectives. Von Hirsch, et al. 2003 compiles essays from various criminal justice scholars who discuss the principles of restorative justice and compare it to traditional models of justice. Clear and Karp 2001 suggests that restorative justice programs are superior to traditional justice programs along a number of dimensions, including satisfying victims and offenders and reducing recidivism. Mosteller 2001 discusses the victims’ rights movement, which aims to give victims a greater voice in the criminal justice system, and identifies the restorative justice principles underlying it. Levrant, et al. 1999 cautions that restorative justice may deliver few benefits and some undesired consequences unless this paradigm and rehabilitation are combined. Winick and Wexler 2003 proposes a different alternative form of justice known as therapeutic justice, which employs the behavioral sciences to maintain or improve the mental well-being of offenders and prevent them from committing future criminal acts. See also the entries on Restorative Justice and Community Courts.

    • Braithwaite, John. 1999. Restorative justice: Assessing optimistic and pessimistic accounts. Crime & Justice: A Review of Research 25:1–127.

      DOI: 10.1086/449287Save Citation »Export Citation »E-mail Citation »

      Provides a detailed explanation of restorative justice theory, reviews examples of the theory in actual practice, and analyzes the effectiveness of restorative justice from both an optimistic and a pessimistic perspective (thirteen claims by proponents, and thirteen major criticisms).

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    • Clear, Todd R., and David E. Karp. 2001. The community justice ideal: Preventing crime and achieving justice. Boulder, CO: Westview.

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      Argues that communities should have greater involvement in criminal justice, with offenders, victims, and other citizens working together to facilitate justice, because community justice programs are more effective than traditional justice systems at restoring victims, reintegrating offenders into society, and preventing future crime.

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    • Levrant, Sharon, Francis T. Cullen, Betsy Fulton, and John F. Wosniak. 1999. Reconsidering restorative justice: The corruption of benevolence revisited? Crime and Delinquency 45:3–27.

      DOI: 10.1177/0011128799045001001Save Citation »Export Citation »E-mail Citation »

      Cautions that restorative justice programs may deliver few restorative or rehabilitative effects, perpetuate race and class disparities, and produce more severe criminal penalties and expanded social control. A better approach would be to blend restorative justice and rehabilitation; each paradigm holds the solution to problems of the other.

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    • Mosteller, Robert P. 2001. Victims’ rights. In Encyclopedia of crime and justice. Vol. 4. 2d ed. Edited by Joshua Dressler, 1639–1645. New York: Macmillan Reference USA.

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      Describes the origins, goals, and successes of the victims’ rights movement in the United States, noting its relationship to restorative justice. The movement’s elements include greater victim participation in criminal proceedings, financial benefits and services for victims, and harsher treatment of defendants. Examines the proposed US Constitution victims’ rights amendment.

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    • Winick, Bruce J., and David B. Wexler. 2003. Judging in a therapeutic key: Therapeutic jurisprudence and the courts. Durham, NC: Carolina Academic Press.

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      Argues that therapeutic jurisprudence, or the use of behavioral science concepts to study the interaction between law and mental health, is a progressive judicial approach, capable of reducing recidivism and improving the lives of those who are channeled through the penal system.

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    • von Hirsch, Andrew, Julian Roberts, Anthony E. Bottoms, Kent Roach, and Mara Schiff. 2003. Restorative justice and criminal justice: Competing or reconcilable paradigms. Portland, OR: Hart.

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      Compiles essays written by preeminent criminal justice scholars that seek to clarify the principles of restorative justice and explore the relationship between restorative justice and more traditional models of justice.

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    Shaming Punishments

    Shaming punishments use forms of humiliation to deter individual offenders and the public at large from committing criminal acts for fear of losing their dignity or marring their reputation. Kahan 2001 discusses the historical and modern uses of shaming punishments as a form of criminal justice. Braithwaite 1989 contends that shaming can be an effective means of crime control, but only if it is done in a way that allows the offender to be reintegrated into society. Markel 2001 critiques shaming punishments as violating essential requirements of retributivist theory.

    • Braithwaite, John. 1989. Crime, shame, and reintegration. Cambridge, UK: Cambridge Univ. Press.

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      Suggests that the key to crime control is a cultural commitment to shaming in ways that help offenders reintegrate into society rather than ostracizing them, which is counterproductive.

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    • Kahan, Dan M. 2001. Shaming punishments. In Encyclopedia of crime and justice. Vol. 4. 2d ed. Edited by Joshua Dressler, 1483–1489. New York: Macmillan Reference USA.

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      Discusses the historical perspectives and modern policy issues that animate the use of shaming punishments.

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    • Markel, Dan. 2001. Are shaming punishments beautifully retributive? Retributivism and the implications for the alternative sanctions debate. Vanderbilt Law Review 54:2157–2242.

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      Suggests that shaming is an illegitimate form of punishment because individuals’ inherently different reactions to humiliation undermine retributive proportionality principles.

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    Administrative Purposes and Limitations of Punishment

    There are important administrative needs that often limit the form and severity of punishments imposed to serve other purposes, in particular the needs to encourage and reward guilty pleas and other forms of defendant cooperation, and to efficiently manage limited correctional resources.

    Encouraging Defendant Cooperation

    No study of punishment theory and practice—indeed, no study of any aspect of criminal justice—can ignore the fundamental reality that the vast majority of convictions are obtained by guilty pleas and plea bargaining. In such cases, as a practical matter, the defense and prosecution determine all or most sentencing issues; the court is called upon to accept or reject the bargained disposition, and in most cases it accepts on the assumption that the system of underfunded, assembly-line justice would grind to a halt if many plea bargains were rejected (and perhaps also because the parties, albeit without formally stating reasons, have usually tried to anticipate the sentencing policies and practices the court would find acceptable). In order to encourage guilty pleas, testimony against other offenders, and other forms of cooperation, defendants are often rewarded with lesser charges and/or lesser sentences, resulting in less punishment than they might have received had they chosen not to cooperate. Alschuler 2001 discusses various types of plea bargaining, common criticisms of the practice, and reasons why it is still widely used in most criminal justice systems. American Bar Association 1999 enumerates the circumstances where leniency is appropriately given to defendants who plead guilty. Missing from the ABA standards, although included in earlier versions, are the two reasons for plea bargaining leniency that probably explain its pervasiveness and persistence: the defendant’s guilty plea makes conviction more prompt and certain, and it conserves scarce trial court resources for other cases (thus making conviction in those cases more prompt and certain).

    • Alschuler, Albert. 2001. Guilty plea: Plea bargaining. In Encyclopedia of crime and justice. Vol. 2. 2d ed. Edited by Joshua Dressler, 754–761. New York: Macmillan Reference USA.

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      Describes the various types of leniency extended to defendants who plead guilty, reviews plea bargaining in historical and comparative perspective, examines criticisms of the practice, describes occasional efforts to abolish or limit it, and explains the reasons for its persistence.

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    • American Bar Association. 1999. Standards for criminal justice: Pleas of guilty. 3d ed. Washington, DC: American Bar Association.

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      Standard 14-1.8 recognizes four rationales for giving charge and/or sentence leniency to defendants who plead guilty: (1) defendant’s genuine contrition and acceptance of responsibility; (2) avoidance of counterproductive severity; (3) defendant’s genuine concern to spare victims the burdens of a trial; and (4) defendant’s cooperation with law enforcement.

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    Correctional Resource Management

    Society’s ability to punish criminal offenders is often constrained by a scarcity of correctional resources—prisons are very expensive to build and operate, and overcrowded prisons are dangerous to inmates and staff, unable to provide adequate programming, and subject to court intervention to protect the fundamental constitutional rights of inmates. The American Law Institute recognizes these resource limitations and advises states to be mindful of them when authorizing and imposing criminal penalties. American Law Institute 2003 views sentencing guidelines as an important resource management tool; in its revisions of the Model Penal Code (American Law Institute 2007), the Institute adopted a sentencing-guidelines model implemented by a permanent sentencing commission, and explicitly directed states to use guidelines to forecast the size of future prison populations and the amount of resources that will be needed to maintain them. Barkow 2005 shows how commission-supervised sentencing guidelines incorporating resource-impact assessments can set priorities for the use of limited prison space and avoid prison overcrowding. Parent 1987 examines how the state of Minnesota pioneered the use of sentencing guidelines and resource-impact assessments.

    • American Law Institute. 2003. Model Penal Code: Sentencing, report. Philadelphia: American Law Institute.

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      This overview of the project to revise Model Penal Code sentencing and corrections provisions, at pp. 72–85, examines the resource-management benefits of sentencing guidelines, noting that with more predictable guidelines on sentencing, combined with abolition of parole-release discretion, states can accurately predict future prison-bed needs, control prison growth, and avoid overcrowding.

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    • American Law Institute. 2007. Model Penal Code: Sentencing, tentative draft no. 1 (approved May 16, 2007). Philadelphia: American Law Institute.

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      Section 1.02(2)(b)(5) states that one of the purposes of sentencing should be to ensure that adequate resources are available to carry out sentences, and that rational priorities are established for using those resources; the commentary, pp. 19–20, notes that a number of states have achieved these goals using sentencing guidelines.

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    • Barkow, Rachel. 2005. Administering crime. University of California at Los Angeles Law Review 52:715–814.

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      Discusses at pp. 804–812 how budget-conscious states with sentencing guidelines and sentencing commissions use resource-impact assessments to control growth of prison populations and costs on the “front end,” setting priorities for use of prison space and avoiding prison overcrowding, court intervention, emergency prison releases, tax increases, and unpopular budget cuts.

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    • Parent, Dale G. 1987. Structuring criminal sentences: The evolution of Minnesota’s sentencing guidelines. Stoneham, MA: Butterworth Legal.

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      Describes how Minnesota pioneered the concept of sentencing policy development within a prison-capacity constraint, using prison-bed impact assessments for each proposed sentencing rule to prevent escalating prison populations and set prison-use priorities. This approach was applied to initial drafts of the sentencing guidelines and to proposed guidelines amendments and new legislation.

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    Effectiveness of Punishment

    In theory, all consequentialist purposes and limitations of punishment are subject to empirical proof of their effectiveness or ineffectiveness in achieving the desired goals, but studies often conflict on whether punishments are actually achieving these effects. Blumstein, et al. 1978 provides a broad review of deterrent and incapacitative punishments and their effects on crime rates. Von Hirsch, et al. 1999 extensively examines the factors contributing to the deterrent effectiveness of punishment, in particular of punishment severity. Doob and Webster 2003 concludes that variation in the severity of sanctions is unrelated to crime rates, and, thus, harsher sanctions do not lead to more general deterrence. Nagin 1998, on the other hand, suggests that criminal punishments do have a significant deterrent effect, but the extent of this effect is difficult to measure. Rehabilitation as a consequential purpose of punishment has often received even more negative reviews, but recent studies are somewhat more optimistic. Sherman, et al. 1997 summarizes vast amounts of empirical data, emphasizing the rehabilitative and other crime prevention policies that are most effective. Sherman and Strang 2007 examines evidence showing that restorative justice leads to more offenses being brought to justice and less recidivism than do traditional criminal justice practices. Pratt and Cullen 2005 suggests that the most effective crime-preventive strategies lie outside the criminal justice system. Ruth and Reitz 2003 suggests that modern trends in the collection and analysis of reliable data will lead to improved criminal justice policymaking decisions in the future.

    • Blumstein, Alfred, Jacqueline Cohen, and Daniel S. Nagin, eds. 1978. Deterrence and incapacitation: Estimating the effects of criminal sanctions on crime rates. Washington, DC: National Academy of Sciences.

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      Provides a comprehensive assessment of whether deterrent and incapacitative sanctions have a statistically significant effect on crime rates.

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    • Doob, Anthony N., and Cheryl Marie Webster. 2003. Sentence severity and crime: Accepting the null hypothesis. In Crime and justice: A review of research. Vol. 30. Edited by Michael Tonry, 143–195. Chicago: Univ. of Chicago Press.

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      Concludes that increasing sanction severity has no generally deterrent effect; thus, the “null hypothesis” (no effect) should be accepted.

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    • Nagin, Daniel S. 1998. Criminal deterrence research at the outset of the twenty-first century. In Crime and justice: An annual review of research. Vol. 23. Edited by Michael Tonry, 1–42. Chicago: Univ. of Chicago Press.

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      Contends that recent evidence has shown that criminal sanctions do, in fact, have a substantial deterrent effect; however, the extent of this effect is difficult to assess because there are gaps in knowledge regarding the links between deterrent policy choices and human behavior.

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    • Pratt, Travis C., and Francis T. Cullen. 2005. Assessing macro-level predictors and theories of crime: A meta-analysis. In Crime and justice: A review of research. Vol. 32. Edited by Michael Tonry, 373–450. Chicago: Univ. of Chicago Press.

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      This meta-analysis of recent macro-level scholarship on criminal justice and other factors that predict crime rates suggests that policing and get-tough sentencing policies have relatively weak average effects on crime; more effective strategies would involve alleviating economic deprivation and increasing institutions of social support.

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    • Ruth, Henry, and Kevin R. Reitz. 2003. Knowledge and assessment. In The challenge of crime: Rethinking our response. By Henry Ruth and Kevin R. Reitz, 39–66. Cambridge, MA: Harvard Univ. Press.

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      Argues that past crime-control policies have rarely been based on careful evaluation of reliable data, but that there is reason to hope such data and evaluation will play an increasingly important role in future policymaking, given the slow but steady emergence of an “assessment mentality” in criminal justice.

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    • Sherman, Lawrence W., Denise Gottfredson, Doris MacKenzie, John Eck, Peter Reuter, and Shawn Bushway. 1997. Preventing crime: What works, what doesn’t, what’s promising. College Park: Department of Criminology and Criminal Justice, Univ. of Maryland.

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      Provides an evaluation of the effectiveness of crime prevention programs funded by Department of Justice grants. Concludes that substantial reductions in serious crime can be achieved only by prevention programs that target urban areas of concentrated poverty, where youth violence is especially prevalent.

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    • Sherman, Lawrence, and Heather Strang. 2007. Restorative justice: The evidence. London: Smith Institute.

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      Reviews restorative justice research to conclude that restorative justice programs lead to more offenses being brought to justice, greater satisfaction with justice for both victims and offenders, and less recidivism than with conventional criminal justice practices.

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    • von Hirsch, Andrew, Anthony E. Bottoms, Elizabeth Burney, and P. O. Wikström. 1999. Criminal deterrence and sentence severity: An analysis of recent research. Oxford: Hart.

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      Discusses factors that determine the deterrent effectiveness of punishment; reviews prior studies of deterrent efficacy, and the methodological problems in proving or disproving such effects; surveys recent research on relationships between punishment severity and crime rates, on citizen perceptions of crime severity, and on offenders’ decision-making processes.

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    Hybrid Theories of Punishment

    Although some theories of punishment belong entirely to one or the other of the two main categories dealt with above, scholars have proposed hybrid or mixed theories incorporating both deontological and consequentialist principles, and most modern legal systems implicitly or explicitly take this approach.

    Limiting Retributivism

    One of the most widely recognized hybrid theories, labeled “Limiting Retributivism” by its best-known proponent, Norval Morris (see Morris 1974 and Morris 1982), argues that an offender’s deserts set upper and occasionally lower limits on punishment severity. Within these limits, the sentence is based on crime control and other consequentialist purposes, but Morris specified that the principle of parsimony (a form of alternative-means proportionality) should be respected: sanctions should be no more severe than necessary to achieve all applicable consequentialist goals. Morris’s theory was based on the view that desert is inherently imprecise, and thus can serve only to identify penalties that are clearly too severe or too lenient. Armstrong's 1969 alternative hybrid theory views desert as more precise, but asymmetric: offenders may never be sentenced above their deserts, but they may be given less than they deserve when this will serve non-desert (consequentialist) purposes and efficiency. For example, an offender who deserves prison may be given a conditional (suspended) prison term and placed on probation, with requirements to undergo community-based treatment and follow other conditions designed to achieve rehabilitation and manage the offender’s risk. Morris and Tonry 1990 suggests that a limiting retributive theory permits more frequent use of intermediate sanctions. Tonry 1998 argues in favor of the principle of parsimony and against a more strongly desert-based approach to punishment. Frase 2004 examines all of Morris’s writings to provide a concise statement of his theory, explores the widespread support for this approach, and suggests an improved version of the theory based on state guidelines systems that have adopted it (sometimes referring to their approach as “modified just deserts”). A similar model has been endorsed in American Law Institute 2003. Lee 2005 provides further support, endorsing a constitutional law version of Limiting Retributivism.

    • American Law Institute. 2003. Model Penal Code: Sentencing, report. Philadelphia: American Law Institute.

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      This overview of the project to revise the sentencing and corrections provisions of the Model Penal Code, at pp. 36–41, describes and illustrates the operation of the theory of Limiting Retributivism, and notes that this theory was adopted as the “philosophical cornerstone” of the revised code provisions.

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    • Armstrong, K. G. 1969. The retributivist hits back. In The philosophy of punishment. Edited by Harry B. Acton, 138–158. London: St. Martin’s.

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      Argues that there is a right but not an obligation to punish offenders up to the limits of desert. To achieve other purposes, such as rehabilitation, the punishing authority may choose to give the offender less punishment than he or she deserves, but it is never just to punish above desert.

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    • Frase, Richard S. 2004. Limiting Retributivism. In The future of imprisonment. Edited by Michael Tonry, 83–119. Oxford: Oxford Univ. Press.

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      Describes Norval Morris’s theory of Limiting Retributivism and examines support for the theory in scholarly writing, model codes, and US and foreign sentencing systems, especially under the Minnesota Sentencing Guidelines. Proposes a more precise formulation of Morris’s theory, modeled on Minnesota-style guidelines, and defends this formulation against other punishment theories.

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    • Lee, Youngjae, 2005. The constitutional right against excessive punishment. Virginia Law Review 91:677–745.

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      Argues that Eighth Amendment clauses prohibiting excessive fines and cruel and unusual punishments should be interpreted as imposing retributive upper limits (“side constraints”) on sanction severity. Also examines how “desert” is assessed, and argues that constitutional limits should be based on the relative (“comparative”) desert of offenders committing different crimes.

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    • Morris, Norval. 1974. The future of imprisonment. Chicago: Univ. of Chicago Press.

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      The first and most complete statement of Morris’s theory of Limiting Retributivism.

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    • Morris, Norval. 1982. Madness and the criminal law. Chicago: Univ. of Chicago Press.

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      Morris’s Limiting Retributivism theory is further elaborated, especially in chapter 5 (“Antisonomy, or treating like cases alike,” pp. 178–209). Distinguishes defining, limiting, and guiding principles, only the first of which specifies an exact sentence; argues that desert should be seen as a limiting principle, and equality as a guiding principle.

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    • Morris, Norval, and Michael Tonry. 1990. Between prison and probation: Intermediate punishments in a rational sentencing system. New York: Oxford Univ. Press.

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      Proposes broader use of intermediate sanctions less severe than incarceration but more severe than traditional probation, and examines how such sanctions can be justified and regulated under Morris’s theory of Limiting Retributivism.

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    • Tonry, Michael. 1998. Parsimony and desert in sentencing. In Principled sentencing: Readings on theory and policy. 2d ed. Edited by Andrew von Hirsch and Andrew Ashworth, 198–204. Oxford, UK: Hart.

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      Argues that sentencing must reconcile two competing claims: proportionality (and equality of treatment among equally blameworthy offenders), and parsimony, or minimization of suffering. This can be achieved with sentencing guidelines ranges; the upper bounds should reflect proportionality principles, while the lower bounds are sufficiently flexible to honor the parsimony principle.

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    Interchangeable Sanctions of Equivalent Retributive Value

    Proponents of a more purely retributive approach, who insist that penalties must be closely tied to each offender’s deserts, have sought to leave room for the case-level pursuit of consequentialist goals by arguing that only the severity of punishment needs to be proportional to desert; the precise form of punishment can vary to meet case-specific needs, provided the overall severity of the package of sanctions imposed is proportional to desert. Robinson 2008 would achieve such proportionate punitive “bite” by establishing a schedule of sanction equivalencies (x days of home detention is deemed equivalent to y days of community service). Von Hirsch, et al. 1989 doubts the feasibility of this approach and prefers a system permitting more selective substitutions among sanction types. Even proponents of Limiting Retributivism (e.g., Morris and Tonry 1990) have advocated the concept of interchangeable sanctions as a way to encourage the use of intermediate sanctions, discourage incarceration, and promote greater sentencing proportionality. Tonry 1994 further argues that such an approach is essential to expanding use of intermediate sanctions and will produce better results than the more purely retributive models advocated by Robinson 2008 and von Hirsch, et al. 1989.

    • Morris, Norval, and Michael Tonry. 1990. Between prison and probation: Intermediate punishments in a rational sentencing system. New York: Oxford Univ. Press.

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      Argues that offenders can be given very different sentences, tailored to applicable crime-control purposes, while still maintaining rough proportionality of sanction severity for equally blameworthy offenders, through a system of “interchangeable” penalties and “exchange rates” (e.g., two months of home detention is deemed equivalent to one month of imprisonment).

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    • Tonry, Michael. 1994. Proportionality, parsimony, and interchangeability of punishments. In Penal theory and penal practice: Tradition and innovation in criminal justice. Edited by Antony Duff, Sandra Marshall, Rebecca Emerson Dobash, and Russel P. Dobash, 59–83. Manchester, UK: Manchester Univ. Press.

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      Contends that a punishment system that permits the interchangeability of roughly equivalent penalties is likely to be more just overall, and able to make more frequent use of noncustodial intermediate sanctions, than a system strictly predicated on desert-based proportionality.

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    • Robinson, Paul H. 2008. Distributive principles of criminal law. New York: Oxford Univ. Press.

      DOI: 10.1093/acprof:oso/9780195365757.001.0001Save Citation »Export Citation »E-mail Citation »

      Argues for a primarily retributive model, based on community views of desert, while giving judges discretion to vary the method of punishment to achieve crime control and other non-desert purposes, using formulas that maintain proportionate punitive “bite.” (Also allows deviations from desert that are “inconspicuous,” or of compelling practical value.)

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    • von Hirsch, Andrew, Martin Wasik, and Judith Greene. 1989. Punishments in the community and the principles of desert. Rutgers Law Journal 20:595–618.

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      Examines ways to maintain retributive proportionality while accommodating non-desert purposes applicable to specific cases. The authors doubt the feasibility of using defined “penalty units” (e.g., one day-fine equals one unit), arguing instead for a “partial substitution” model for less serious crimes (e.g., weekend custody in place of full-time custody).

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    Other Hybrid Theories

    A number of authors have proposed other forms of hybrid punishment theory, and some of the theories listed elsewhere in this entry can also be viewed as hybrids even though their proponents do not necessarily view them that way, in particular those cited under Moral Education and Restorative, Community, and Therapeutic Justice. One of the most common hybrid approaches distinguishes between different punishment issues and allows deontological principles (especially desert) to determine some types of issues, while consequentialist purposes control others. Hart 2008 and Rawls 1955 both agree that systems of punishment should be justified on consequentialist grounds—offenders must be punished to maintain adequate crime control—while desert principles are applied to questions of the “distribution” of penalties to particular offenders. Hart makes a further distinction within the distribution category, between questions of who may be punished and how hard (and perhaps, in what form) they should be punished; Hart would apply both desert and consequentialist principles to the latter type of (sentencing) question. In contrast, Lacey 1988 questions the coherence of all “mixed” (hybrid) theories, and the idea that different justifications could apply to different punishment issues. Hart 1958 also seems to run afoul of Lacey’s critique, since he advocates pursuit of both desert (or at least, societal expression of condemnation) and rehabilitation at sentencing. Robinson 1987 examines a variety of other hybrid approaches, designed to allow the pursuit of conflicting punishment purposes. One of Robinson’s proposals is to specify which purpose takes priority in case of conflict. Van Ness 1993 and von Hirsch 1985 both take this approach; Van Ness would give priority to restorative justice goals, while von Hirsch (like Robinson) gives preference to desert.

    • Hart, Henry M., Jr. 1958. The aims of the criminal law. Law and Contemporary Problems 23:401–441.

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      Advocates two goals at sentencing: expressing the degree of the community’s moral condemnation of the offense, and facilitating defendant’s rehabilitation and capacity to live responsibly; argues that these goals can be maximized by applying presumptions in favor of suspended execution of sentence, and in favor of a fine over incarceration.

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    • Hart, Herbert L. A. 2008. Punishment and responsibility: Essays in the philosophy of law. 2d ed. Oxford: Oxford Univ. Press.

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      Argues that the existence of the institution of punishment (why punish anyone?) should be justified on consequentialist grounds; selection of persons to be punished should be subject to Limiting Retributivism (only the blameworthy may be punished), and the punishment’s severity should be both useful and not in excess of desert.

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    • Lacey, Nicola. 1988. State punishment: Political principles and community values. London: Routledge.

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      At pp. 46–56 various “mixed” theories of punishment are examined. The author finds these theories to be flawed because they fail to articulate deeper unifying principles that could clarify the tension between the demands of utility and desert.

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    • Rawls, John. 1955. Two concepts of rules. Philosophical Review 64:3–32.

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      Argues that competing retributivist and utilitarian theories of punishment can, in fact, be reconciled because utilitarian arguments are appropriate for justifying an entire system of rules, while retributive arguments fit the application of particular rules to particular cases.

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    • Robinson, Paul H. 1987. Hybrid principles for the distribution of criminal sanctions. Northwestern University Law Review 82:19–42.

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      Discusses conflicts between sentencing principles and several hybrid approaches for resolving such conflicts, including specifying priorities among the purposes; confining some principles to a residual, limiting role; combining purposes that have the same goal (e.g., crime prevention); allowing some purposes to determine degree and others the form of the penalty.

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    • Van Ness, Daniel W. 1993. New wine and old wineskins: Four challenges of restorative justice. Criminal Law Forum 4:251–276.

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      Argues that conflicting punishment purposes can be reconciled by viewing restorative justice as the overarching goal of criminal justice; other goals, such as incapacitation or deterrence, would be pursued only to the extent that they do not interfere with the achievement of applicable restorative justice goals such as restitution.

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    • von Hirsch, Andrew. 1985. Past or future crimes: Deservedness and dangerousness in the sentencing of criminals. New Brunswick, NJ: Rutgers Univ. Press.

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      Proposes a retributive-based punishment system that can address crime control or other consequentialist goals in several ways: by raising or lowering the absolute severity (“anchoring points”) of the punishment scale; by employing “hard treatment,” not merely symbolic expression of retributive censure; and, perhaps, by permitting limited deviations from desert.

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    Classical Accounts of Punishment Purposes

    Debates over conflicting purposes of punishment are centuries old, and some of the earliest accounts are still quite valuable. The treatises of Beccaria 1963 and Bentham 1931 (originally published in 1764 and 1802, respectively) provide classic statements of punishment principles based on utilitarian (consequentialist) philosophy. The eminent British jurist William Blackstone reported that many of these principles were already embodied in English Common Law as of 1769 (Blackstone 1979). Another 18th-century philosopher, Immanuel Kant, is commonly viewed as an early proponent of retributive punishment theory, but as Murphy 1987 shows, many of Kant’s writings also endorsed nonretributive goals such as deterrence.

    • Beccaria, Cesare. 1963. On crimes and punishments. Translated by Henry Paolucci. Indianapolis, IN: Bobbs-Merrill.

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      English translation of Dei delitti e delle pene, first published in 1764. One of the first statements of utilitarian (consequentialist) punishment theory.

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    • Bentham, Jeremy. 1931. The theory of legislation. Edited by C. K. Ogden. New York: Harcourt, Brace.

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      First published 1802. Further develops utilitarian punishment theory.

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    • Blackstone, William. 1979. Commentaries on the laws of England. Chicago: Univ. of Chicago Press.

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      First published 1769. Cites Beccaria and argues that similar utilitarian punishment principles are found in English Common Law.

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    • Murphy, Jeffrey G. 1987. Does Kant have a theory of punishment? Columbia Law Review 87:509–532.

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      Immanuel Kant (b. 1724–d. 1804) is usually viewed as an early and forceful proponent of punishment based solely on retributive values, but Murphy shows that a variety of theories of punishment can be found in Kant’s writings, including support for punishment based on deterrence (provided that the offender also deserves the punishment).

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    History of Punishment Purposes

    In addition to classical works from the 18th century, it is useful to consider the history and evolution of punishment theories and practices in later periods. Rothman 1971 examines the move in the first decades of the 19th century toward institutional confinement and rehabilitation. Allen 1981 describes the decline in support for rehabilitative goals in the mid-20th century. Reitz 2001 continues the story through the start of the 21st century, describing the variety of conflicting theories and sentencing structures that replaced the former rehabilitative model.

    • Allen, Francis A. 1981. The decline of the rehabilitative ideal: Penal policy and social purpose. New Haven, CT: Yale Univ. Press.

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      Identifies and discusses the reasons for the decline of the rehabilitative ideal in American penal policy and considers future prospects for the rehabilitative model.

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    • Reitz, Kevin R. 2001. The disassembly and reassembly of US sentencing practices. In Sentencing and sanctions in Western countries. Edited by Michael Tonry and Richard S. Frase, 222–258. Oxford: Oxford Univ. Press.

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      Examines the dramatic changes in American punishment laws, purposes, and practices, beginning in the 1970s.

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    • Rothman, David J. 1971. The discovery of the asylum: Social order and disorder in the new republic. Boston: Little, Brown.

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      Traces the revolution in social practice that led Americans in the Jacksonian era to begin erecting penitentiaries, asylums, and other institutions to maintain social cohesion in a period of rapid change by rehabilitating inmates and setting an example of good order for the larger society.

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    Sociological and Comparative-International Perspectives

    A fuller understanding of contemporary punishment theories and practices is also provided by examining punishment from sociological and international perspectives. Foucault 1977 compares the prison to other modern institutions of social control, while Savelsberg 1994 critiques functionalist and Marxist explanations for recent changes in US but not German sentencing severity. Garland 1990 synthesizes prior sociological theories, arguing for a multidimensional approach. Frase 2008 considers whether cross-national differences and trends in punishment purposes, procedures, and severity can be explained by theories of comparative law, modernity, national culture, and political economy. Tonry 2008 cites historical and constitutional factors as explanations for more severe US crime control policies compared with those of other developed nations. Whitman 2003 cites a different set of historical and cultural factors to explain these cross-national differences. The chapters in Tonry and Frase 2001 provide both country-specific and cross-national perspectives on punishment policies.

    • Foucault, Michel. 1977. Discipline and punish: The birth of the prison. Translated by Alan Sheridan. New York: Pantheon.

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      English translation of Surveiller et punir: Naissance de la Prison, first published in 1975. Details the movement away from torture and toward incarceration as punishment for criminal conduct, highlighting the French experience beginning in the 17th century. Argues that the newer, seemingly more humane approach was, like schools and other modern social institutions, just a way to maintain more effective control.

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    • Frase, Richard S. 2008. Sentencing and comparative law theory. In Crime, procedure and evidence in a comparative and international context: Essays in honour of Professor Mirjan Damaška. Edited by John Jackson, Máximo Langer, and Peter Tillers, 351–369. Oxford: Hart.

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      Considers how well Damaška’s structural and system-purpose theories of comparative criminal procedure explain traditional differences and recent changes in US and European sentencing procedures. Also examines how well modernity, national culture, and political economy theories explain traditional differences and recent changes in US and European sentencing purposes and severity.

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    • Garland, David. 1990. Punishment and modern society: A study in social theory. Chicago: Univ. of Chicago Press.

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      Reviews, critiques, and synthesizes sociological theories, including those of Durkheim, Marx, Foucault, and Weber. Argues that punishment should be viewed as a complex social institution that serves a variety of instrumental, expressive, and other purposes and is maintained by numerous social forces.

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    • Savelsberg, Joachim. 1994. Knowledge, domination, and criminal punishment. American Journal of Sociology 99:911–943.

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      Compares punishment severity changes in the United States and Germany, exploring the impact of institutionalization of political and legal decision making, and of public, political, and academic knowledge production (e.g., related to assumed deterrent effects); challenges functionalist (e.g., Durkheimian) and Marxist explanations.

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    • Tonry, Michael. 2008. Crime and human rights: How political paranoia, Protestant fundamentalism, and constitutional obsolescence combined to devastate Black America. Criminology 46:1–33.

      DOI: 10.1111/j.1745-9125.2008.00108.xSave Citation »Export Citation »E-mail Citation »

      Identifies four causes of more severe US crime control policies compared with other developed nations: the “paranoid style” in American politics; a tradition of religious and moral intolerance; the obsolescence and disfunction of America’s two-party-dominated constitutional structure; and race—the legacy of slavery and political exploitation of it.

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    • Tonry, Michael, and Richard S. Frase, eds. 2001. Sentencing and sanctions in Western countries. Oxford: Oxford Univ. Press.

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      Six chapters describe punishment policies and practices in Australia, England and Wales, Finland, the Netherlands, Germany, and the United States. Chapters by each of the editors examine international trends, cross-national differences, and theories to explain these. Other cross-cutting chapters examine sentencing generally, human rights standards, prison conditions, and punishment theory.

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    • Whitman, James Q. 2003. Harsh justice: Criminal punishment and the widening divide between America and Europe. Oxford: Oxford Univ. Press.

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      Argues that punishments are much harsher and more degrading in the United States than in continental European nations in part because European nations were slower to abandon mild penalties for higher-status offenders; in response to modern equality concerns, these less severe and degrading penalties were then generalized to all offenders.

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    LAST MODIFIED: 03/02/2011

    DOI: 10.1093/OBO/9780195396607-0116

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