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The Philosophical Justifications of Determinate Sentencing*

The Philosophical Justifications of Determinate Sentencing* THE PHILOSOPHICAL JUSTIFICATIONS OF DETERMINATE SENTENCING* GRAY CAVENDER The controversy surrounding determinate sentencing has sparked new interest in the philosophical assumptions underlying the criminal sanction. The proposed sentencing plans reject reha- bilitation as their justification, and focus, instead, on desert and deterrence. These plans often include attacks on theoretical crimi- nology as well as criticisms of rehabilitation. This paper will demonstrate that desert is essentially the old notion of retribution, which, when combined with deterrence, may produce a system of sanctions as bad as those criticized by the proponents of determinate sentencing. The paper will further dem- onstrate that the new sentencing proposals are a return to social contract theory. A REVIEW OF RECENT LITERATURE on criminology and corrections reflects a trend that is characterized by changes in sentencing policy and in the accepted justifications for the criminal sanction. There have been proposals to replace indeterminate with determinate or presumptive sentencing and to abandon the rehabilitative ideal as the justification for society's response to criminal behavior. These proposals are being enacted into law in some states. The writers who criticize existing correctional policies and support or lead the movement away from them claim to be formulating an approach to http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Jurisprudence Oxford University Press

The Philosophical Justifications of Determinate Sentencing*

Cavender, Gray
American Journal of Jurisprudence , Volume 26 (1) – Jan 1, 1981
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Publisher
Oxford University Press
Copyright
© 1981 by The University of Notre Dame
ISSN
0065-8995
eISSN
2049-6494
DOI
10.1093/ajj/26.1.159
Publisher site
See Article on Publisher Site

Abstract

THE PHILOSOPHICAL JUSTIFICATIONS OF DETERMINATE SENTENCING* GRAY CAVENDER The controversy surrounding determinate sentencing has sparked new interest in the philosophical assumptions underlying the criminal sanction. The proposed sentencing plans reject reha- bilitation as their justification, and focus, instead, on desert and deterrence. These plans often include attacks on theoretical crimi- nology as well as criticisms of rehabilitation. This paper will demonstrate that desert is essentially the old notion of retribution, which, when combined with deterrence, may produce a system of sanctions as bad as those criticized by the proponents of determinate sentencing. The paper will further dem- onstrate that the new sentencing proposals are a return to social contract theory. A REVIEW OF RECENT LITERATURE on criminology and corrections reflects a trend that is characterized by changes in sentencing policy and in the accepted justifications for the criminal sanction. There have been proposals to replace indeterminate with determinate or presumptive sentencing and to abandon the rehabilitative ideal as the justification for society's response to criminal behavior. These proposals are being enacted into law in some states. The writers who criticize existing correctional policies and support or lead the movement away from them claim to be formulating an approach to

Journal

American Journal of Jurisprudence – Oxford University Press

Published: Jan 1, 1981

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