Objects of Punishment in Federal Court

 Posted on July 16, 2007 in Uncategorized

The U.S. Congress, in its (ahem) wisdom, has specified the purposes of punishment in federal criminal cases:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;(B) to afford adequate deterrence to criminal conduct;(C) to protect the public from further crimes of the defendant; and(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

18 U.S.C. §3553(a)(2). (Notice that "making the victims whole" is not a purpose of punishment.)

In a federal criminal case, the sentence should be "sufficient, but not greater than necessary" to satisfy those purposes. Id. §3553(a) 1.

I alluded to the five purposes of sentencing here. (In New York, criminal-defense lawyer Scott Greenfield tells us, there are only four. Punishment greater than necessary to provide rehabilitation, specific deterrence, general deterrence, and incapacitation can only be justified by retribution, so nobody ever goes to prison in New York for any longer than is necessary to rehabilitate him, to make sure he doesn't recidivate, and to deter others. Isn't that nice?) How do section 3553's four objects of sentencing translate to the five purposes of sentencing? I'll start at the bottom and work my way up.

When the government seeks to provide the defendant with training, care, or treatment, it's looking for rehabilitation as a penological goal. When the government tries to protect the public from further crimes of the defendant, it's after specific deterrence and incapacitation. When the government attempts to deter criminal conduct, it's trying to achieve specific deterrence and general deterrence. Those are all forward-looking utilitarian goals.

That brings us to the first object (more accurately, three grouped objects) of punishment specified by federal statute:

To reflect the seriousness of the offense;To promote respect for the law; andTo provide just punishment for the offense.

"Reflecting the seriousness of the offense" and "promoting respect for the law" do not fit neatly into any of the recognized penological goals, but they might be read as attempts at specific and general deterrence. Similarly, "providing just punishment" could be viewed as a summary goal of punishment - a judge might think that she provided just punishment by satisfying the four utilitarian goals encompassed by subsections (B)-(D). But such a reading of subsection (A) is redundant, and probably wrong.

More likely, Congress meant subsection (A) to give permission to judges to apply their own principles - even principles of retribution - to sentences in federal criminal cases.

"Reflect the seriousness of the offense" is a vengeful, rather than merciful, imperative. Vengeance reflects the seriousness of the offense; mercy reflects only the quality of the judge.

"Respect for the law" is in the eye of the beholder: just as a merciful judge might think that mercy promotes respect for the law, a vengeful judge, or one who suffers from a lifelong confusion of fear and respect, might well think that being vengeful promotes respect for the law.

Like "respect," "just punishment" is a judicial ink blot, in which judges can see whatever fits best into their worldview. In a system of retributive justice born out of Mosaic law, in which justice is to be "tempered" with mercy, the truth is most of the people judging our clients still see "justice" as retribution.

----– 1 Booker and Fanfan gave us some hope that this phrase had meaning. That hope has been dashed time after time as judges punt on the difficult job of deciding what is right in favor of the sentencing-by-numbers scheme of the guidelines. Yet we keep trying.

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