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Making Sentencing Policy More Rational and More Effective

Published online by Cambridge University Press:  16 February 2016

Alfred Blumstein
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Extract

In thinking about the sentence-setting process, it is important to recognize the different perspectives associated with the two different levels at which sentencing questions must be addressed. The first is the macro policy level. This is the level of issues faced by a judicial council, a legislature, or a sentencing commission. Such a body must establish a range of permissible sentences from which the individual judge chooses the sentence for any particular case. The policy body must develop principles for establishing those ranges. Most of the discussion in this paper appeals to this policy level.

The second level is the micro level of the individual judge who must choose, from the range of sentences that the policy permits, the particular sentence that is most appropriate for the particular case. As part of its policy, the policy body may also provide guidance to the individual judge on how to choose a particular sentence from within the available range.

Type
Determining Penalties (1): Criteria for Sentencing
Information
Israel Law Review , Volume 25 , Issue 3-4 , Summer–Autumn 1991 , pp. 607 - 619
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

1 While the discussion here generally assumes a mandatory policy, it applies equally well to recommended sentences developed by a policy body that has only an advisory function.

2 Others may want to invoke still other principles, such as reinforcing community norms. (See Gibbs, Jack, Crime, Punishment and Deterrence (Elsevier Scientific Pub. Co., New York, 1975)Google Scholar, for example). I believe that most of those purposes can be related quite well to some combination of retributive and crime-control purposes, and so I do not treat them separately here. Also, most of the issues I want to address need two distinct purposes, and so avoiding unnecessary clutter of more than two is helpful for expository reasons.

3 The works of Andrew von Hirsch cover the issue very well.

4 Robinson, Paul, “Hybrid Principles for the Distribution of Criminal Sanctions” (1988) 82 Nw. U. L. R.,Google Scholar tries to find a “principle” that integrates the various considerations, but seems to end up converging onto just deserts almost exclusively. In “The Search for the Elusive Common ‘Principle’” ((1988) 82 Nw. U. L. R.)Google Scholar from which large segments of this paper are drawn, I argue for the multiple-principle approach developed here.

5 See, for example, Bell, David A., Keeney, Ralph L., and Raiffa, Howard, eds., Conflicting Objectives in Decisions (Wiley, New York, 1977)Google Scholar for the proceedings of a workshop on decision-making with conflicting objectives that was sponsored by the International Institute for Applied Systems Analysis.

6 The discussion is based on the single sentence, S. Much of the analysis could be extended to the case of a more complex sentence structure, such as combined prison and probation.

7 The V function might take many other forms. The most common is the familiar linear weighted sum in expression (1). If we view desert as a limiting principle, as Norval Morris most often argues, then we might represent the function as

Maximize UJ(S), subject to SL < S < SU

where SL and SU, are the upper and lower bounds of the acceptable limits on S as dictated by desert principles. Similarly, one principle espoused by Robinson (supra n. 4) takes the simple form of

Maximize UJ(S)

presumably by choosing S*, providing that some aggregate effect associated with an intolerable crime rate — does not occur. This has the effect of mixing the micro considerations associated with this offender with some macro effect that can be addressed only through the general deterrence mechanism.

8 There was a major review of the literature in Blumstein, Alfred, Cohen, Jacqueline, and Nagin, Daniel, eds., Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates, Report of the Panel on Research on Deterrent and Incapacitative Effects, National Academy of Sciences (Washington, D. C., 1978)Google Scholar. That review focused strongly on empirical estimates of deterrent effects. There has been more attention in recent years at estimating incapacitative effects, and these recent estimates are summarized in Blumstein, Alfred, Cohen, Jacqueline, Roth, Jeffrey, and Visher, Christy, Criminal Careers and “Career Criminals” vol. I, Report of the Panel on Research on Criminal Careers, National Academy of Sciences (Washington, D.C., 1986)Google Scholar.

9 Much of the empirical evidence on this issue has been collected in Blumstein, Cohen, Roth, and Visher, eds., Criminal Careers and “Career Criminals”, supra n. 8, at 74-75.

10 The striking example of a sentencing commission that used available capacity as a consideration in the formulation of its guidelines was the Minnesota Sentencing Guidelines Commission. See, for example, von Hirsch, Andrew, Knapp, Kay, and Tonry, Michael, The Sentencing Commission and Its Guidelines (Northeastern U. P., Boston, 1987)Google Scholar.

11 In Blumstein, Alfred and Cohen, Jacqueline, “Sentencing of Convicted Offenders: An Analysis of the Public's Views” (1980) 14 Law & Society R.CrossRefGoogle Scholar, respondents to a survey “called for” sentences that were ordinarily consistent with time actually served by prisoners in the same state, but that were generally two to four times as long. This presumably reflects a reasonable knowledge and consistency regarding the relative sanction, but reflects great difficulty for a public that is largely unaware of time actually served to establish knowledgeable sentencing norms.