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Villanova University School of Law
Chanenson, Steven L.

Sentencing and Punishment
Fall 2014
Professor Steve Chanenson
Villanova Law School
–          Many laws of sentencing, not a single law of sentencing
–          Participants in top-level legislative, executive, judicial positions, and lower level actors and institutions
–          Individualization vs. regulating discretion to reduce or eliminate unjust disparity
–          Constitutionalizing aspects of sentencing through Apprendi-Blakely line of cases
–          It is no longer politically foolish to resist the tough on crime mantra that had been a campaign staple for decade
o   Barack Obama on federal crack cocaine sentencing structures; promotion of drug courts; and other innovations to reduce reliance on incarceration for drug offenses
o   Right on Crime – advocating for GOP elected officials to explore alternatives to incarceration for a range of less serious offenses
The Human Experience of Prison
·         Norval Morris – advocate for rights of prison and mental hospital inmates
o   re-written diary of an inmate – “fails to capture the constant unhappiness of prison life and the constant sense of danger. It misses the relentless, slow-moving routine, the dull repetitiveness, the tension mixed with occasional flashes of fear and rage; it misses the consuming stupidity of living this way.”
o   Prison terms have an effect not only on offenders, but also families, communities, victims, officers of the prison, etc.
·         Foucault on French prisons – believed it converted petty criminals into hardened delinquents
·         2003 – Prison Rape Elimination Act – ongoing reporting requirement of sexual assaults in prisons; funding of preventive program
·         Gangs are common, often along racial lines
·         CA prisons racially segregated inmates at arrival because of concerns of racially based gang violence – put to strict scrutiny in Johnson v. CA (2005)
·         3x as many women in prison as next country
o   usu. non-violent crimes (prostitution, theft, drugs)
o   they form gangs, too
o   pregnancy concerns; higher HIV rates
A. Social Purposes of Sentencing
–          Consequentialists– actions judged based on consequences – (reducing overall harms of criminal behavior)
–          forward-looking and utilitarian – punishment can benefit society through DETERRENCE of potential offenders; INCAPACITATION of current offenders, or REHABILITATION of offender
–          Deontologists – actions judged based on moral duty  (righting the moral wrongs of criminal behavior)
–          backward-looking – RETIRBUTION/JUST DESERTS – punishment is just when it restores the moral balance upset by crime
1. Stated Purposes – useful articulation of policy objectives
                        a. Purposes Statutes
                                    – ABA model standards – when designing sentencing system
                                                – foster respect for the law and deter criminal conduct
– GENERAL deterrence – exemplary and educative force of criminal law
(cf. Specific – punishments deter offender, experiencing it directly, from future crim. conduct – closer to rehabilitation whenever we are talking about offender-specific)
                                                – incapacitate offenders
                                                            – ALL systems do this, whether intentional or not
                                                            – the difference in the policy debate is how
deliberate it is
– punish offenders   
            – comeback since the 70’s of retribution
                                                – provide restitution or reparation to victims
                                                            – not always possible
                                                            – often given priority over assessment of other
– consequentialist
                                                – rehabilitate offenders
                                                            – prevailing theory in 60’s and early 70’s, which
                                                             is how indeterminate sentencing and parole
                                                            were justified
                                                            – can be incarcerative or non
                                                            – REHAB alone is NEVER adequate basis for
punishment – can’t lose track of other goals
Historical Trends
–          OLD – Code of Hammurabi – retribution
–          Late 1700’s, early 1800’s – Bentham (utility); Kant (contemporary retribution for moral justification)
–          American optimism and development of prison systems led to 1800’s and 1900’s rehabilitation as dominant theory
–          1960’s and 70’s – Decline of Rehabilitative Ideal – “nothing works”
“limiting retributivism” – a dominant modern rationale? (HLA Hart and Norval Morris)
–          Holds that retribution sets upper/lower boundaries of just punishment, within which other sentencing purposes hold sway (including deterrence, incapacitation, rehabilitation)
Are forward-looking utilitarian/consequentialist theories incompatible with retributive backward-looking theories?
Does rehab mean no recidivism, or offenders becoming productive contributors to community?
Should retribution be based on subjective culpability or objective harms?
Problem 1-1 – Richard Graves – rape – Montana Sentencing law calls for sentence of 2-100 years imprisonment
Deterrence is not disputed – having a CJ system clearly deters some wrongdoing.
But marginal deterrence is hotly disputed – dos an extra quantum of punishment decrease crime measurably?
–          Don’t moral views, family structures, community structures, and other social dynamics have more of a deterrent impact than specific sanctions?
–          Is it moral to punish one person to deter others?
Michael Tonry on deterrence
–          Certainty and promptness of punishment are more powerful deterrents than severity
–          Increases in punishment for particular offenses and MMS laws (3 strikes) do not yield significant marginal deterrent effects
–          Serious sex/violent crimes are generally committed under extreme emotion and exacerbated often by alcohol/drugs
–          Many crimes do not result in arrests/prosecutions – most do not expect to be caught (Sometimes naively, often realistically)
–          Most are offered plea bargains that break the link between crime and prescribed punishment

o   MMS, 3 strike laws – ideological posturing is illegitimate
–          Partisanship
o   Coldly calculated (Rather than the deeply held ideological beliefs)
Birth of the Prison – Michel Foucault  (1977)
–          Significant shifts in overall approach to punishment throughout Western history – tortureà punishment (i.e. chain gangs) à discipline (through observation (Panopticon) à Prison (schools, military institutions, hospitals, factories build a panoptic society for members)
–          Incarceration largely unknown before 1800’s – rather, punishments were physical and financial – harsh and brutal even for minor offenses – almost always carried out in public
–          Is torturing the soul actually worse than torturing the body?
Black males (non-Hipanic) imprisonment rate 7x higher than white non-Hispanic males
Above are the SOCIAL purposes
B. Purposes in PRACTICAL Context
– Philosophers have the luxury of discussing theoretical issues in abstract; societies do not
1. Use of Purposes in Sentencing an Individual Offender
Queen v. Robert James Arnautovic (Australia)
–          15 priors – guity pleas for burglary/theft/armed robbery
–          96 prior convictions
–          Heroin abuse and 2nd daughter in poor health
o   He didn’t commit any crimes after she was born
–          Lenient sentence – 2 years; drug treatment/testing; other restrictions
o   If he screws up, he gets incarcerated
Should this be a legislative issue? A trial court issue?
How important is consistency compared against goal of furthering purposes of punishment in individual cases?
            2. Use of Purposes in System Components – certain types of crimes/offenders/punishments (i.e. sentencing rules for repeat offenders)
                        a. the Relevance of Prior Crimes to Current Punishment
Prior criminal history = increased culpability? Predictor of future criminality? Selective targeting of dangerous offenders?
–          Retributionists say
o   Look only at current offenses
o   D has already been punished for previous; no greater culpability or victimization as result of prior offenses; so crim history is inappropriate
o   SOME retributionists say crim history has minor role – first sentence puts D on notice and communicates wrongfulness; once alerted, culpability is heightened
–          Incapacitation-ists –
o   Collectively, we can increase imprisonment rate/duration for broad range of offenders without specific predictions of future criminality
o   Selectively, we can use criteria to identify offenders predicted to commit more crime/more serious crime/ vice versa