Return to Retribution in Penal Theory (From Crime, Proof and Punishment - Essays in Memory of Sir Rupert Cross, P 144-171, 1981, C F Tapper, ed. - See NCJ-87757)

• NCJ Number: 87759
• Author(s): D J Galligan
• Date Published: 1981
• Length: 28 pages
• Sale Source: Butterworth-Heinemann
• Language: English
• Country: United States of America

Annotation

While modern retributivists have made a valuable contribution in advancing the principle of justice in sentencing, they go too far in urging that sentencing be done through fixed penalty codes based on deserts.

Abstract

The simple solution of doing justice by imposing fixed prescribed penalties according to the nature and severity of an offense fails to deal with the complexities of justice and other concerns of society that must be considered in criminal justice policy. Further, it ignores the lessons of penal history which indicate that simplistic reforms create as many problems as they solve. The retributivist's concern that the individual offender be protected against the exercise of arbitrary discretionary state power is laudable, but this can be achieved within a structure of decisionmaking that pursues a number of important goals, so long as these goals are identified and ranked by priority. The specification of comparative deserts based upon society's perceptions of the gravity of various offenses should be central to sentencing structure, but within the prescribed ranges of sentencing, there should be room for introducing other factors important in the sentencing decision. There may be sufficient reasons for departing from the deserts principle by using measures that may be more lenient or more severe than those indicated in a simplistic mechanistic system of comparative deserts. If the concern of a fixed, mechanistics system of retributive sentencing is to eliminate abuses of sentencing discretion, this can be done by more appropriate ways than subjecting all decisions to inflexible rules. Ten footnotes are listed.