Introduction

Errors of justice can be made after a defendant is convicted, even when the offender committed the crime as charged. Bentham elaborates on these errors in an earlier work (1789), first by observing where sanctions are “profitable,” then by identifying circumstances under which they are excessive. As Bentham suggests, we may be able to reduce errors by assessing sanctions in terms of the extent to which they fall within reasonable boundaries between insufficient (in terms of his goal of controlling the actions of offenders) and excessive. Contemporary treatments of sentencing policy echo Bentham's justifications for sanctions — retribution, general and individual deterrence, incapacitation, and rehabilitation — and add victim and community restoration as legitimate purposes.

The extraordinary tripling of prison and jail populations in the United States from 1980 to 2000, from 1.3 million to 4.6 million, a period that also saw an astonishing decline in the homicide rate, from 23,000 to 15,000, certainly suggests a substantial shift toward systematic errors of overincarceration. The challenge we confront is to see whether Bentham's principles can be used as a departure point for finding a basis for making a more definitive assessment.