Hybrid Principles for the Distribution of Criminal Sanctions

Abstract:     
Most criminal codes, and most criminal law courses, begin with the 'familiar litany' of the purposes of criminal law sanctions - just punishment, deterrence, incapacitation of the dangerous, and rehabilitation. We train and direct our lawyers, judges, and legislators to use these purposes as guiding principles for the distribution of criminal sanctions. The purposes are thus to guide both the drafting and interpretation of criminal statutes and the imposition of criminal sentences in individual cases.

The purposes frequently conflict, however, as part I will demonstrate. Conflicts arise because each purpose requires consideration of different criteria; in some cases, a particular fact suggests different sentences or statutory formulations under different purposes. Ultimately a choice must be made to follow one purpose at the expense of another. Yet when faced with conflicting purposes, judges, legislators, and sentencing-guideline drafters have no principle to guide that decision.

In the absence of a guiding principle, the choices made are, at best, inconsistent. For example, most state criminal codes maintain an insanity defense because it exculpates the blameless (and thus furthers just punishment), even though abolishing the defense might more effectively incapacitate the dangerous. Yet the same codes sacrifice just punishment, in favor of increasing deterrence, by recognizing strict liability. At the same time, rather than increasing the threatened sanction when the temptation or inclination is greater, as a deterrence principle suggests, these codes frequently decrease the deterrent threat - as, for example, in cases of provocation - because of the offender's reduced blameworthiness. Code drafters are choosing to further different purposes in different contexts.

At worst, the absence of a guiding principle fosters arbitrariness or prejudice. This happens when the inconsistent approach of the code drafters is followed on the level of individual sentencing decisions. For instance, while rehabilitation might be the best means of avoiding future crime by a young addict who is caught selling drugs to support his habit, a judge rationally might decide to impose a long prison term in order to further general deterrence interests. When faced with a young bank teller who embezzled money from her cash drawer, the same judge might decide to sacrifice the general deterrent value of a long prison term and put the offender on probation, under an incapacitative theory - she is no longer dangerous because she will never again be placed in a position of trust. Both of these sentences are justified by one of the purposes of sentencing, but they nonetheless may be the product of arbitrary or biased decision making. Without a principle governing when one sentencing purpose is to be followed at the expense of another, judges and guideline drafters are free to choose whatever purpose justifies the desired sentence.

Keywords: Distribution, criminal sanctions, punishment

JEL Classifications: K14

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