NCJ Number
91924
Journal
Journal of Criminal Law and Criminology Volume: 74 Issue: 2 Dated: (Summer 1983) Pages: 343-362
Date Published
1983
Length
20 pages
Annotation
Major features of substantive law -- such as procedure, definitions of guilt, and sentencing -- are consonant with both the retributivist and utilitarian theories of justification for punishment, since such concepts often are built with existing practices in mind and do not stray far from ordinary citizens' moral views.
Abstract
The dominant approaches to justifying punishment are retributive (claiming that punishment is justified because people deserve it) and utilitarian (believing that justification lies in the useful purposes that punishment serves). Close analysis of the retributivist position reveals troubling questions about the state's proper purposes and human attempts to equate reward and punishment to moral deserts. Utilitarians generally regard the most important benefits of punishment as general deterrence, norm reinforcement, individual deterrence, incapacitation, reform, and vengeance. During the mid-20th century, U.S. sentencing practices were consonant with utilitarian premises although also consistent with important retributive limits on severity. However, the 1970's reaction against rehabilitation has focused attention on the disparities in the indeterminate sentencing system. Both retributivists and utilitarians share concerns about avoiding convictions of the innocent and not punishing those persons who have the misfortune to be accidental instruments of harm, act in self-defense, or who are insane. The article includes 21 references.