NCJ Number
69397
Date Published
1980
Length
13 pages
Annotation
THE REJECTION OF THE REHABILITATIVE IDEAL AND THE REVERSION TO CLASSICAL CRIMINOLOGY IN SENTENCING ARE DISCUSSED; AND DECRIMINALIZATION, DIVERSION, AND THE 'HOLISTIC VIEW' ARE POSED AS SENTENCING ALTERNATIVES.
Abstract
THE PERCEIVED FAILURE OF THE DETERRRENT AND REHABILITATIVE FUNCTIONS OF SENTENCING HAS RESULTED IN THE REINSTITUTION OF PUNISHMENT AS THE GOAL OF SENTENCING. ALTHOUGH OFFENDERS SHOULD BE PUNISHED FOR THEIR CRIMES AND NOT FOR PERCEPTIONS OF THEIR FUTURE CRIMINALITY, THE DIALETIC BETWEEN ALLOWING THE CERTAINTY OF JUSTICE TO PREVAIL AND THE DESIRE TO IMPROVE HUMANITY IS DEEPLY IMBEDDED IN THE CRIMINAL LAW. PERSONS, NOT ACTS, ARE SENTENCED; AND MORALITY HAS BEEN AND STILL IS THE HEART OF CRIMINAL LAW, ALTHOUGH RELIGIOUS JUSTIFICATIONS HAVE BEEN LARGELY REPLACED BY JUSTIFICATIONS IN THE NAME OF UTILITY. CRIMINOLOGISTS AND POLICYMAKERS SHOULD GIVE A RATIONAL BASE TO SENTENCING POLICY, ALTHOUGH THE ESSENTIAL POLITICAL CHARACTER OF CRIMINAL LAW AND SENTENCING HAS TO BE RECOGNIZED IN ANY ANALYSIS OR REFORM OF SENTENCING POLICY. ALTERNATIVES THAT HAVE BEEN POSED TO THE LEGALISTIC, ANTIDISCRETIONARY, AND ANTITHERAPEUTIC TRENDS IN SENTENCING DURING THE PAST DECADE ARE SUMMARIZED AS DECRIMINALIZATION, DIVERSION, AND THE HOLISTIC VIEW, OR THE EVALUATION OF SENTENCING THROUGH CONSIDERATION OF DECISIONS MADE AT THE COMMUNITY, POLICE, AND PROSECUTORIAL LEVEL. THE SLOW SHIFT FROM THE PRINCIPLES OF PUNISHMENT, DETERRENCE, AND REHABILITATION TO THE PRINCIPLE OF UNDOING THE HARM DONE BY MEANS OF RESTITUTION MAY BE THE MOST SIGNIFICANT RECENT DEVELOPMENT IN SENTENCING POLICY. THE ADOPTION OF THE NOTION IN CRIMINAL LAW OF UNDOING HARM DONE, AS OPPOSED TO THE ASSIGNMENT OF GUILT, PARALLELS THE DEVELOPMENT OF NO-FAULT JUDGMENTS IN TORT PROCEEDINGS. THE GRADUAL EVOLUTION OF NEW ALTERNATIVES TO SENTENCING THAT ARE CHARACTERIZED BY THE DIMINUTION OF STATE INTERFERENCE AND A REEXAMINATION OF THE ROLE OF CRIMINAL LAW IS ADVOCATED. A LIST OF 34 NOTES ARE PROVIDED.