55 Pages Posted: 19 Mar 2020 Last revised: 27 Mar 2020
Date Written: February 24, 2020
Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state’s reasons for imposing a death sentence may not be executed. Outside the capital context, the answer is less clear. This Article focuses on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.
Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their suffering. But judges are busy, defendants are not always interested, and the law often treats such explanations as unimportant or even unwise. Legislatures, moreover, rarely convey the purposes of statutory penalties, plea bargaining obscures the reasons for punishment, and the experience of punishment does not always reflect its social aims.
Scholars and critics of American criminal justice tend to pay little attention to these deficits. Perhaps explaining individual sentences seems unimportant compared to the larger effort to humanize and rationalize penal policy. In fact, however, the two are intertwined.
Communicating the reasons for punishment humanizes offenders by engaging with them as reasoning beings worthy of society’s continued concern — not as unreasoning animals simply to be harnessed or caged. The process of articulating punishment goals also can rationalize sentencing by reducing error, bias, and excess.
We can build a legal culture that respects offenders and advances punishment rationality by communicating the reasons for criminal sanctions. Legislatures can clarify the purposes of statutory penalties, prosecutors can explain how sanctions based on plea deals serve legitimate goals, judges can spell out the social objectives of sentences in terms that offenders can understand, and prison and probation authorities can convey sentencing rationales during the experience of punishment itself.
Keywords: punishment, sentencing, reason-giving, statutes, plea bargaining, death penalty, human dignity, communication, retribution, deterrence, incapacitation, rehabilitation, dehumanization, prison, probation, legislatures, courts, criminal law, criminal procedure
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