One perspective on sentencing reform in the United States

Summary and Conclusion The most difficult part of constructing a system of criminal sentencing is to be able to give a rationale for each sentence. Historically, this has been an unsurmountable hurdle because it required reformers to resolve the irresolvable conflict between utility and desert as sentencing goals and to measure the immeasurably complex relative utility of the alterative utilitarian strategies of deterrence, incapacitation, and rehabilitation. The good news is that we need not try to leap these insurmountable hurdles: the greatest utility is found in a desert distribution of liability and punishment. By following desert, the criminal law can establish its moral credibility with the public and thereby harness the real sources of social control—the power of social sanctions and internalized norms. In the context of criminal sentencing, this means the system must establish a reputation for giving offenders the precise amount of punishment they deserve. Despite the utilitarian importance of desert, however, nondesert concerns can govern the selection of the sanctioning method. As long as the total punitive bite of all aspects of an offender’s sentence is what the offender deserves, judges otherwise can be left free to construct the sentence they think will best avoid future crime. With a system of punishment units and punishment equivalencies, a desert-based determination of the amount of punishment can co-exist with a selection of sanctioning methods looking to nondesert, utilitarian considerations, such as the need for deterrence, incapacitation, and rehabilitation. This essay is based upon lectures given at the United Nations Asia and Far East Institute (UNAFEI) for the Prevention of Crime and the Treatment of Offenders in Fuchu, Tokyo, Japan. B.S., Rensselaer Polytechnic Institute 1970; LL.M., Harvard University 1975; J.D., University of California-Los Angeles 1973; Dip. Leg. Stud., Cambridge University 1976.     

What does “unwilling” to impose the death penalty mean anyway? another look at excludable jurors

The debate regarding the death qualification of juries usually concerns (a) whether death-qualified jurors have different attitudes and values to excludable jurors, or (b) whether death-qualified juries are more prone to convict. A pivotal question is whether excludable subjects in fact willever impose the death penalty. Subjects were presented with five grisly murder vignettes. Only 40% of excludable subjects refused to consider the death penalty in all of the cases, with the remaining 60% indicating they would consider the death penalty in one or more of the cases. It is argued that the majority of individuals currently being excluded from capital trial juries based on their reservations about the death penalty actually would impose the death penalty for serious enough offenses and that they should therefore be allowed to serve on such juries.