Criminal Sentencing, Essay Example

The purpose of a criminal justice system is to define the parameters of acceptable behavior within a society and to define the consequences for violating them.  In essence, the system is designed to ensure that all members of a society follow the rules that maintain civility, safety, and social order.  Sentencing is the process of assigning whatever consequence is most appropriate in achieving the overall goal of maintaining social order.  Punishment is often but not always a component of sentencing.

There are several factors that drive sentencing in criminal matters.  These factors include retribution, incapacitation and rehabilitation.  There is also a presumption that imposing negative consequences for criminal behavior will help deter it.  Societal values have always influenced criminal sentencing, and the consequences for breaking laws have changed along with the mores of the cultures that impose them.

The most primitive from of sentencing is based on the concept of retribution.  Retribution is the act of “getting even” with a person who has committed an affront against another person or group.  One might imagine a caveman bonking another caveman on the head with a stick for stealing the spoil of his hunt.  On a larger and more contemporary scale, retribution occurs when a country bombs another in retaliation for some incursion.

Within the legal system, retribution is perhaps the oldest form of criminal punishment.  Most early forms of law enforcement included the “eye for an eye” principle.  In modern America, this form of punishment is probably best exemplified by the death penalty.  Most people would agree that a person committing an offense should be punished.  The degree of punishment however, is another matter.  The Eighth Amendment prohibits “cruel and unusual” punishment and stipulates that the level of punishment must be proportionate to the severity of the crime.

The majority of criminal sentences involve one or more of three consequences including supervision, monetary fines or incarceration.  The latter incapacitates an individual from participation in the greater society.  If a criminal is in prison, he or she can presumably no longer commit additional crimes.  Early American jails such as the Walnut St. Jail built in 1773 were primarily used for holding offenders awaiting trials rather than as an actual form of punishment (Johnson, 2009).

Ultimately, penitentiaries became the favored from of consequence for most criminal offenders.  Since the prison environment was the same for all offenders, the differentiation between severities of crime was made in the length of time an offender would have to spend there.  The original concept of the penitentiary was to both incapacitate the offender and to encourage repentance for his or her crime.

The religious principle of repentance eventually changed into the secular concept of rehabilitation.  Early reformatories were used mostly for juvenile offenders whose release was not based on a definitive timeframe, but by his or her rehabilitative progress (NA, 2010).  The first legislation allowing supervised probation was enacted in Massachusetts in 1878.  Since that time, other forms of alternative sentencing have been used by various courts.

Perhaps the most common form of rehabilitative sentencing in the country today is drug or alcohol rehabilitation. According to the Department of Justice, the average cost of incarcerating an inmate is between 24,000 and 28,000 per year (DOJ, 2009).  Sentencing drug offenders to rehabilitative treatment instead of prison has the potential of saving millions of dollars and may be more effective in transforming a drug offender into a productive citizen than doing prison time.  According to the ONDCP (2003), the average cost of drug court programs is $2,500 annually per offender and the recidivism for successful graduates is less than 4%.

Notwithstanding the effectiveness and cost savings benefits of drug treatment and other alternative sentencing programs, mandatory sentencing laws often prohibit such sentencing.  State legislators often garner support from a fearful public by running on “get tough on crime” platforms.  Even though alternative sentencing may be more economically sustainable and ultimately more effective in changing criminal behavior, the “lock ‘em up for a long time to get them off our streets” message finds sympathetic ears among voters.

Deterrence

In an ideal world, a society would publish rules for behavior and everyone would diligently abide by them.  Unfortunately, in the real world many citizens need to be compelled to follow the rules.  The threat of arrest, fines, incarceration, or other legal consequences should provide motivation for citizens to abide by laws.  For most people these threats are effective.

It is also unfortunate that the U.S. legal system does not pose the same threat of consequence to everyone on equal terms.  The threat of consequence is only a deterrent factor if the offender is both caught and convicted.  The fact that a person of means is less likely to be convicted for some crimes dilutes the deterrent effect of legal consequences.

If for example the 18 year-old son of a gas station attendant is arrested for stealing a $50 pair of sunglasses, the odds of him being convicted and given a reasonable consequence are high.  Conversely, if the son of a wealthy CEO is busted for the same offence, the threat of lengthy legal shenanigans could very well cause the charge to be dismissed.

The deterrence effect of criminal sentencing is not inconsequential.  It does work for most people.  It would however work better if justice was monetarily indifferent as well as blind.

References

(DOJ 2009 Anual cost of federal incarceration)DOJ (2009). Anual cost of federal incarceration. Federal Register, 74(131), 33279. Retrieved from http://cryptome.org/0001/bop071009.htm

(Johnson N 2009 Prison reform in Pennysilvania)Johnson, N. (2009). Prison reform in Pennysilvania. Retrieved from http://www.prisonsociety.org/about/history.shtml

(Na 2010 Prison Reform)NA. (2010). Prison Reform. Retrieved from the Calvin College website: http://www.ccel.org/s/schaff/encyc/encyc09/htm/iv.v.xviii.htm#iv.v.xviii

(Ondcp 200303 Drug data summary)ONDCP. (2003, March). Drug data summary. Retrieved from http://www.whitehousedrugpolicy.gov/publications/factsht/drugdata/index.html