A judge must confront a basic question before managing sentencing duty. That confrontation requires an answer to the direct and seemingly simple question, “what am I trying to do?” This question is difficult because no one seems to know...
moreA judge must confront a basic question before managing sentencing duty. That confrontation requires an answer to the direct and seemingly simple question, “what am I trying to do?” This question is difficult because no one seems to know the answer. Frequently asserted objectives include deterrence, protection of the public, rehabilitation and retribution and, at times, judges may attempt to achieve all four. Yet the four may be mutually exclusive in some cases. If value choices must be made because less than all are achievable, which of the four ought to be accented?
Unquestionably, the present popular sentencing philosophy of Americans accepts the morality of making object lessons of defendants. Not only does this notion raise difficult moral questions of misplaced punishment, it can often place the ideals of deterrence and rehabilitation in conflict. Should the focus be what is best for the individual or should it incorporate a different social objective? In the process of deterring others, what are we doing to the recidivistic tendencies of the defendant?
Analysis shows that one focus, rehabilitation, is reflective of a system of tailored justice with inherent “disparity” in sentences. The other focus is part of an effort to achieve uniformity and fixity. Further, it is the inability not only to achieve rehabilitation goals but to even be able to recognize its presence that underlies much of the present discontent with indeterminate sentences and parole board discretion. Punishment is not the source of respect for the rule of law; it is only an expression of a system which must otherwise be rationally based. It must not be forgotten that there is a great deal that simply cannot be known regarding the success or failure of sentencing objectives, and decisions made with no reference to rational standards can hardly be called justice.
