The objective of this study is to describe four theories of sentencing and to explain one of the key factors in modern sentencing laws and policies.
Four Theories of Sentencing
The work of David B. Muhlhausen (2010) entitled “Theories of Punish and Mandatory Minimum Sentences” reports that there are four theories of sentencing including those of: (1) deterrence; (2) incapacitation; (3) rehabilitation; and (4) just deserts (p.1). Muhlhausen reports that “since the American Founding, the influence of the four justifications of criminal punishment has varied” (2010, p.1).
Incapacitation and Deterrence
The models of incapacitation and deterrence are such that are aligned “closely…with utilitarianism” and has as its objective rather than attempting to bring about a change in behavior through costs being raised instead, “removes the offender from society” whereas the deterrence model is such that “seeks to make crime more costly” in nature in the hopes that crime will be reduced (Muhlhausen, 2010, p.1). 1The deterrence model is such that holds that criminals are the same as people who abide by the law and to increase the punishment in terms of its severity, swiftness and its certainty will result in the reduction of crime.
Rehabilitation
The model of rehabilitation is such that makes the assumption that the determination of crime is that of forces in society rather than criminal made decisions while the model of just deserts makes the assertion that “punishments should commensurate with the moral gravity of offenses (Muhlhausen, 2010, p.1) Muhlhausen (2010) reports that the model of rehabilitation was utilized most effectively in terms of the effect on policy in the area of criminal justice during the decades of the 1960s and the 1970s (paraphrased).
Just Deserts
The just deserts or retribution model is such that holds that the crime having been committed is “sufficient justification” for handing down punishment (Muhlhausen, 2010, p.1). The punishment that is given is based on the severity of the crime.
Modern Sentencing Laws: Presumptive Sentencing
Guidelines for sentencing are formulated upon the basis and belief that any punishment meted out should be stringent for those crimes which are more serious and that individuals who are repeat offenders should be sentenced more severely than individuals who do not have a criminal history (US Legal, 2016, paraphrased). Guidelines for sentencing which are based on a presumptive type of sentencing process are done so upon the prior conviction record of the individual being sentenced as well as upon the presumed sentence that would be generally handed down by the judge for that crime to other individuals with the same past record of convictions (US Legal, 2016, paraphrased). Under the presumptive sentencing laws mitigating circumstances can be taken under consideration by the judge for departure from the presumed sentence and this can be due to circumstances that are aggravating and the judge making the decision to make the sentence longer than the presumed sentence due to these aggravating circumstance (US Legal, 2016, paraphrased).However, mitigating circumstances in the defendant who is being sentenced favor can result in the judge making a departure from the presumed sentence and ordering the individual to serve less time than the presumed sentence (US Legal, 2016, paraphrased). Mitigating factors that serve to work in the favor of the defendant under presumptive sentencing includes such as having attended a drug or alcohol recovery program, having attended educational classes, as well as other actions that the individual might have taken following their arrest such as securing employment (US Legal, 2016, paraphrased). It is reported that the presumptive sentence is generally imposed the majority of the time (US Legal, 2016, paraphrased).
- Muhlhausen, DB (2010) Theories of Punishment and Mandatory Minimum Sentences. Heritage. Retrieved from: http://www.heritage.org/research/testimony/theories-of-punishment-and-mandatory-minimum-sentences
- Presumptive Sentence Law & Legal Definition (2016) US Legal. Retrieved from: http://definitions.uslegal.com/p/presumptive-sentence/
