Communicating Punishment

64 Pages Posted: 19 Mar 2020 Last revised: 24 Aug 2020

Date Written: August 20, 2020

Abstract

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 still open. This Article begins to fill that gap, focusing 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, and plea bargaining can further obscure the reasons for punishment.

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 purposes of punishment publicly affirms the dignity and humanity of offenders as reasoning moral beings, whose suffering requires justification. While humanizing offenders, such explanation also opens a path to larger reforms. Furthermore, sentencing explanation guards against error, bias, and excess, by focusing judges on legitimate considerations.

Current sentencing rules and policies undervalue punishment explanation, often in favor of efficiency. New norms and practices must be created to ensure that the reasons for punishment are clearly and publicly articulated to offenders. Judges, legislatures, prosecutors, defense attorneys, and corrections officials each have a part to play in making that reality.

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

Suggested Citation

McLeod, Marah, Communicating Punishment (August 20, 2020). Boston University Law Review, Forthcoming 2020, Available at SSRN: https://ssrn.com/abstract=3543662 or http://dx.doi.org/10.2139/ssrn.3543662

Marah McLeod (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
3127713448 (Phone)
3127713448 (Fax)

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