Sentencing

Philosophies of Punishment

The philosophies of punishment provide different answers to the questions of whether, how, and for how long to punish an individual. The five philosophies are retribution, deterrence, incapacitation, rehabilitation, and restoration/restorative justice. The answers derived from the philosophies of punishment have practical implications for sentencing policy and practice.

Retribution is premised upon the notion that criminals are guilty of the accused crimes and, therefore, deserve to be punished. The punishment is justified by the fact that criminals chose to engage in illegal behavior. Retribution is not geared toward preventing future crime but solely on sanctioning past behavior. The amount of punishment is determined through the principle of proportionality—the punishment assigned to offenders should be equal to the harm that they caused through their crimes. The punishment is determined by the seriousness of the crime and the culpability of the offender. The punishment does not have to resemble the crime.

Deterrence can be specific or general in nature. The purpose of specific deterrence is to dissuade a specific offender from committing future crimes, or recidivism. General deterrence is intended to prevent others from engaging in criminal activity similar to that of the offender by demonstrating the consequences associated with the crime. The amount of punishment should be only significant enough to [Page 731]outweigh the benefits of the crime, and no more. Deterrence utilizes cost-benefit analyses to determine the quantity of punishment with the goal of crime prevention and is calculated through a balance of certainty, swiftness, and severity in punishment.

Incapacitation is the isolation of high-risk offenders in order to limit the opportunities that they have to commit additional crimes. Incarceration is the most popular form of incapacitation, but incapacitation also includes forms of home confinement and electronic monitoring, boot camps, and chemical castration for some sex offenders. The punishment should be proportionate to the risk posed by the offender; high-risk offenders should be punished more severely than low-risk offenders. One of the biggest criticisms of incapacitation is that it involves the assessment of dangerousness and the prediction of those offenders at the highest risk of recidivism. The determination of high risk and dangerousness is complicated—those who have committed the most serious offenses (murderers) are the least likely to repeat their offenses, whereas shoplifters and petty drug dealers are the most likely to repeat their offenses. If dangerousness and punishment are determined based on likelihood of recidivism, then shoplifters would be punished more harshly than murderers. Additionally, prediction can result in a high rate of false positives—treating people harshly because they have been deemed high risk when they may not have ever reoffended. These two scenarios present ethical problems.

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