CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, March 14, 2013

Frase on Just Sentencing

FraseRichard S. Frase (University of Minnesota Law School) has posted Preface and Introduction - Just Sentencing: Principles and Procedures for a Workable System )R. Frase, Just Sentencing: Principles and Procedures for a Workable System, Oxford University Press, 2013) on SSRN. Here is the abstract:

This book presents a hybrid sentencing model that combines clearly-stated normative principles with procedures that have proven successful in practice. The theoretical structure is an expanded version of limiting retributivism that sets desert-based limits on sentence severity, within which crime control and other non-retributive purposes and limitations of punishment are applied. The latter include: expressive sentencing goals; parsimony (least restrictive alternative); utilitarian proportionality; social (and especially, racial) equality; retention of substantial judicial sentencing discretion and control; and front-end, system-wide management of correctional resources. The model’s procedures are inspired by the best American state sentencing guidelines systems.

A hybrid sentencing theory is normatively superior and practically necessary. Any purely retributive or purely crime-control model would fail to recognize widely-shared competing values, and would not succeed in practice. 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. Procedures must also strike a workable balance in the use of custodial and non-custodial sentencing options, and in the powers of systemic policy makers (the legislature and sentencing commission) and case-level decision makers (judges, attorneys, and correctional officials). Although sentencing guidelines are often seen as reflecting strong preferences for rules over discretion, and for system-wide over case-level 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. This book shows how the core principles and procedures of the proposed model have been implemented in Minnesota and several other states, and endorsed in the revised Model Penal Code and other model codes and standards.

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