NCJ Number
79318
Journal
Tennessee Law Review Volume: 48 Issue: 3 Dated: (Spring 1981) Pages: 535-562
Date Published
1981
Length
28 pages
Annotation
After discussing current sentencing trends away from the medical model of rehabilitation to a punitive approach, this paper redefines the function of the criminal justice system in terms of equal treatment under the law and the achievement of security and then proposes sentencing reforms.
Abstract
The movement toward determinate sentencing by many State legislatures has been supported by conservatives, liberals, and radicals who attack the existing medical model of individual rehabilitation as ineffectual, arbitrary, and socially repressive. An historical review of criminal justice reform focuses on those 18th century political theories which condemned cruel and unusual punishment and laid the groundwork for the rehabilitation approach. Since the present criminal justice system has failed to achieve rehabilitation and deterrence, its objective should be redefined as the enhancement of liberty and security. By preserving procedural rights for all citizens, the system realistically cannot punish some illegal acts. Many young people and the poor will not be deterred by the punishment discounted by the risk of being caught; these groups will commit most offenses in a society which espouses equal treatment under law regardless of age or class. If a sentencing system tries to impose equal punishment for similar conduct, it must examine mitigating and aggravating factors in the criminal act and select a punishment that is fair for the offense. A criminal penalty should at a minimum equal the gains that the offender expects to receive. As part of a fair judicial system, correctional institutions should recognize that offenders are responsible persons and give them opportunities to account for their own actions as well as reflect the values of society. For habitual criminals, a just desert system can be used to increase punishment and incarcerate them for the duration of their criminal careers. The paper includes 85 footnotes.