NCJ Number
48006
Journal
Wisconsin Law Review Dated: (1976) Pages: 781-815
Date Published
1976
Length
35 pages
Annotation
A JUST DESERTS-BASED MODEL OF DETERMINATE SENTENCING PROPOSED IN A FORTHCOMING BOOK IS CRITICALLY ANALYZED AND SUPPLEMENTED.
Abstract
DOING JUSTICE, A BOOK BY ANDREW VON HIRSCH, IS A FURTHER CRITIQUE OF THE REHABILITATIVE IDEAL OF IMPRISONMENT FOR TREATMENT PURPOSES AND OF THE RELATED PRACTICES OF INDIVIDUALIZING DISPOSITIONS THROUGH INDETERMINATE SENTENCING AND INCARCERATION BASED ON PREDICTIONS OF DANGEROUSNESS. IT IS SUGGESTED BY VON HIRSCH THAT TREATMENT MAY BE MORE INHUMANE AND CRUEL THAN A PUNITIVE APPROACH. MOREOVER HE ARGUES, PREDICTION IS INACCURATE, AND INDETERMINATE SENTENCES RESULT IN UNEQUAL ADMINISTRATION OF JUSTICE AND IMPOSE EXTRA HARDSHIP AND SUFFERING ON OFFENDERS. THE MODEL PROPOSED TO REPLACE THE REHABILITATIVE MODEL IS BASED ON SEVERAL MORAL ASSUMPTIONS: (1) PERSONAL LIBERTY IS TO BE PROTECTED SO LONG AS IT IS CONSISTENT WITH THE LIBERTY OF OTHERS; (2) THE STATE IS REQUIRED TO ADOPT THE LEAST RESTRICTIVE ALTERNATIVE TO ACHIEVE SOCIAL PURPOSES; AND (3) PUNISHMENT SHOULD BE BASED ON AN ASSESSMENT OF WHAT THE OFFENSE DESERVES, WITH DESERVED SENTENCES DETERMINED ON THE BASIS OF PUBLIC CONSENSUS OF THE SERIOUSNESS OF A CRIME. SENTENCING WOULD BE DETERMINATE WITH LITTLE ROOM FOR DISCRETION AND WITH EMPHASIS ON WIDER UTILIZATION OF ALTERNATIVES TO INCARCERATION AND SHORTER SENTENCES. PAROLE AND EARLY RELEASE WOULD BE ABANDONED, AND REHABILITATIVE PROGRAMS FOR INMATES WOULD BE PROVIDED ONLY ON A VOLUNTARY BASIS. HOWEVER, WITH THIS MODEL A JUST DESERTS RATIONALE COULD BECOME THE BASIS FOR CRUEL AND REPRESSIVE PUNISHMENTS AND THE THEORY COULD BE EASILY PERVERTED IN PRACTICE. IT COULD HAVE NEGATIVE EFFECTS IN THE AREA OF PRISONERS' RIGHTS, AND MAINTAINING PRISON DISCIPLINE MAY BECOME MORE DIFFICULT. FINALLY, THE NOTION OF CULPABILITY DOES NOT OFFER AN ADEQUATE GUIDE FOR LAWMAKERS IN DECIDING WHICH CONDUCTS REQUIRE CRIMINAL SANCTIONS OR IN ASSESSING THE JUSTIFICATION OF PUNISHMENT UNDER THE NEGLIGENCE AND STRICT LIABILITY PROVISIONS. MOREOVER, SERIOUS PHILOSOPHICAL DIFFICULTIES EXIST REGARDING THE JUSTIFICATIONS FOR PUNISHMENT AND THE DETERMINATION OF MORAL BLAMEWORTHINESS IN DETEREING DESERVED PUNISHMENT. THE MAJOR DIFFICULTY WITH THE MODEL IS ITS LACK OF SERIOUS CONSIDERATION OF THE CONCEPT OF CULPABILITY. IT IS SUGGESTED THAT INCORPORATION OF THE DETERMINATION OF CULPABILITY BASED ON A FREE JURY EXAMINATION OF THE OFFENDER'S LIFE HISTORY, MOTIVES, TEMPTATIONS, AND CAPACITIES IN SENTENCING MIGHT PROVIDE A PARTIAL SOLUTION TO THE PROBLEM OF CULPABILITY. WHERE DIMINISHED RESPONSIBILITY IS ADJUDGED, SENTENCING CAN BE MITIGATED. FURTHER, CONTROLS ON THE APPARATUS FOR DETAINING THE DANGEROUS OFFENDER WILL BE NEEDED. IT IS CONCLUDED THAT A SUPPLMENTED JUST DESERTS MODEL MIGHT BETTER ACCOMODATE THE DEMANDS FOR JUSTICE, ORDER AND CHARITY. REFERENCE CITATIONS ARE PROVIDED.