How (Not) to Think Like a Punisher

Florida Law Review, Vol. 61, p. 727, 2009

Georgetown Law Faculty Working Papers Research Paper No. 1473277

Seton Hall Public Law Research Paper No. 1473277

25 Pages Posted: 3 Oct 2009 Last revised: 18 Nov 2009

Alice Ristroph

Seton Hall University - School of Law

Abstract

This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical analysis that may actually make American sentencing less arbitrary and, importantly, less severe. When the Code retreats to retributive or desert theory, it appeals to indeterminate and unpredictable principles that threaten to undermine the new provisions’ more salutary proposals.

Keywords: criminal law, sentencing, model penal code, judicial role, desert, punishment theory

JEL Classification: K42, K4

Suggested Citation

Ristroph, Alice, How (Not) to Think Like a Punisher. Florida Law Review, Vol. 61, p. 727, 2009; Georgetown Law Faculty Working Papers Research Paper No. 1473277; Seton Hall Public Law Research Paper No. 1473277. Available at SSRN: https://ssrn.com/abstract=1473277

Alice Ristroph (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
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