NCJ Number
51101
Journal
Journal of Criminal Law and Criminology Volume: 69 Issue: 3 Dated: (FALL 1978) Pages: 291-299
Date Published
1978
Length
20 pages
Annotation
THE TREND TO REVIVE THE RETRIBUTIVE DOCTRINE IN PENOLOGY IS DISCUSSED. THE DOCTRINE'S PERCEIVED MERITS ARE EXAMINED, ALONG WITH POSSIBLE ALTERNATIVES TO THE RETRIBUTIVE TREATMENT OF CRIMINAL OFFENDERS.
Abstract
IT IS ARGUED THAT THE SUPREME COURT'S RETURN TO THE RETRIBUTIVE DOCTRINE IS NOT ATTRIBUTABLE TO A SENSITIVITY TO PUBLIC OPINION BUT, RATHER, TO DOUBTS ABOUT DETERRENCE THEORY AND THE RECOGNITION THAT THE IDEA OF REHABILITATION HAS FALLEN INTO GENERAL DISREPUTE; AND THAT THIS TREND CAN BE BROKEN BY THE CREATION OF NEW DOCTRINES OR NEW STRATEGIES IN CRIME PREVENTION BASED ON INCAPACITATION AND BEHAVIOR MODIFICATION. THE FOLLOWING ARGUMENTS ARE PRESENTED: (1) WHILE RETAINING CUSTODY OF AN OFFENDER MAY THWART EFFORTS AT REHABILITATION OR RENDER BEHAVIOR MODIFICATION INEFFECTIVE, INCARCERATION CAN BE JUSTIFIED AS THE 'JUST DESERT' FOR CRIMINAL CONDUCT AND AS SUCH IS ENTIRELY CONSISTENT WITH THE RETRIBUTION DOCTRINE; (2) ALTHOUGH THE DEATH PENALTY, ALSO REVIVED BY THE SUPREME COURT, IS THE VERY CONTRADICTION OF REHABILITATION AND BEHAVIOR MODIFICATION, ITS APPLICATION IS SUPPORTED BY THE RETRIBUTION DOCTRINE; AND (3) BECAUSE THE DOCTRINE IS BASED ON PROSECUTING OFFENDERS AS 'MORALLY RESPONSIBLE BEINGS,' RETRIBUTIVISTS WOULD HAVE NO DIFFICULTY ACCEPTING THE RELEVANCE OF INSANITY PLEAS. HOWEVER, ALTHOUGH THESE CONSIDERATIONS APPEAR TO HAVE SWAYED JURISTS, LEGISLATORS, LAYMEN, AND SCHOLARS TO INCREASINGLY ACCEPT THE RETRIBUTIVE DOCTRINE OVER ALTERNATIVE APPROACHES, RETRIBUTIVISTS HAVE FAILED TO RECOGNIZE THAT THE DOCTRINE REALLY DOES NOT RESOLVE MANY ISSUES IN PENAL POLICY. QUESTIONS MUST STILL BE ANSWERED WITH RESPECT TO DEFINING RETRIBUTION AND DETERMINING THE APPROPRIATE PUNISHMENT FOR A GIVEN CRIME, THE SERIOUSNESS OF CRIMES, THE SEVERITY OF PUNISHMENTS, AND THE ROLE OF PUBLIC OPINION AND JUDICIAL DISCRETION. REFERENCES ARE FOOTNOTED. (KBL)