December 1, 2012
In Just Sentencing, Richard S. Frase presents a sentencing model that integrates theory and practice, combining clearly-stated normative principles with procedures that have proven successful in the most fully-developed state sentencing guidelines systems. This model fills the need for a workable new sentencing rationale and structure to replace the once-monolithic indeterminate model. That model is now widely discredited because of its reliance on unfettered judicial and parole discretion.
The proposed model’s hybrid theoretical structure is an expanded version of limiting retributivism that sets desert-based upper limits on sentence severity, within which crime control and other non-retributive purposes and principles are applied. The latter include: expressive and communicative sentencing goals; parsimony (least restrictive alternative); utilitarian proportionality; social (and especially, racial) equality; retention of substantial judicial sentencing discretion; and front-end, system-wide management of correctional resources. A hybrid sentencing theory is normatively superior and practically necessary. Any purely retributive or non-retributive model would fail to recognize widely-shared competing values, and would not succeed in practice. Indeed, all modern sentencing systems are hybrids of one kind or another, combining retributive and non-retributive goals and principles.
A sentencing theory, no matter how well it resolves important normative concerns, is of little utility without an accompanying set of workable procedures designed to implement the chosen sentencing principles. Indeed, pure theory is incomplete even on normative grounds; concrete structures and decision rules help to illustrate and clarify theoretical concepts and the normative choices being made. But sentencing procedures must likewise achieve an acceptable balance, especially between two competing procedural ideals – rule versus discretion – each of which has important advantages. Rules promote consistency and predictability; discretion promotes flexibility and efficiency.
Although sentencing guidelines are often seen as reflecting strong preferences for rules over discretion, and for system-wide over case-level sentencing policy making, that is not how the best state guidelines systems actually work. Like the proposed model, these systems structure sentencing discretion but leave judges and other officials with a substantial degree of discretion to tailor the form and severity of sanctions to the facts of particular cases.
Just Sentencing shows how the core principles and procedures of its proposed model have been implemented in several states, and have been endorsed by the American Bar Association, the American Law Institute, and other standards-drafting bodies. The book also forthrightly addresses and resolves some of the most difficult challenges faced by American sentencing policy makers and practitioners, in particular: racial disparities in prison and jail inmate populations; and the justification for and degree of sentence enhancement based on prior convictions and on multiple current convictions.