Doing Justice in Sentencing

Abstract

Punishment theories and policies have marched in different directions in the United States for nearly 50 years. Philosophers and others who try to understand what justice requires, policy makers who create the rules for dispensing it, and practitioners who try to achieve it don’t communicate with each other very well, or at all. They lack a common vocabulary. More importantly, they lack a shared understanding of what punishment is and does, and what it should aspire to be and to do. This is unusual. Shared understandings exist in most countries and did in the United States through the 1960s. The costs have been high. They include mass imprisonment, extraordinary injustice, assembly-line case processing, and moral impoverishment. Here are two concrete examples. California’s three-strikes law required minimum 25-year prison sentences for many trifling property crimes. Notorious cases involved thefts of three pizza slices, three golf clubs, and a handful of DVDs. The golf clubs and DVDs made it to the US Supreme Court. Many states’ laws authorized, sometimes mandated, life sentences without parole for young teenagers, some convicted of homicide but many convicted of lesser crimes. Those laws would have been unimaginable in the United States before the 1980s, and they are unimaginable today in otherWestern countries. That is because of widely shared agreements in most times and places that fierce punishments for minor crimes are unjust and that troubled young people should be dealt with sympathetically.