NCJ Number
216514
Journal
Howard Journal of Criminal Justice Volume: 45 Issue: 5 Dated: December 2006 Pages: 521-536
Date Published
December 2006
Length
16 pages
Annotation
This article examines the possibility of understanding the so-called "last resort principle,"--using imprisonment as a sentence only when no other sentence is suitable for the humane and rehabilitative treatment of the offender and for public safety--not merely as a principle of corrections, but also as a basic legal principle based in the concept of proportionality.
Abstract
If the "last resort" principle is taken "in earnest," all criminal law doctrine must require that a custodial sentence cannot be given unless all other options have been ruled out. The "last resort" principle implies that imprisonment is such a violation of basic human rights that it should not be used except when not using it would seriously threaten the rights of others. The "last resort" principle is already part of existing principles of constitutional law, in human rights provisions, and in a number of international treatises recognized as binding. What is currently required is a further explanation of the relationship between criminal law and constitutionally recognized rights and freedoms. First, punitive sanctions must be viewed as wrong and unjust in themselves. Second, this requires that ways of managing offenders be examined for elements of punitiveness and that multiple nonpunitive alternatives to incarceration be developed. At any point in time, all existing alternatives to incarceration must be assessed as options for sentencing in a given case. Incarceration should only be imposed as the ultimate punitive sentence, assuming capital punishment has been abolished in a society, when the social harm addressed is of the most serious nature and all other sentencing options have been carefully considered and found to be insufficient for dealing with the risks of further social harm to the community. 25 notes and 29 references