Friday, September 7, 2018
Jelani Jefferson Exum (University of Toledo College of Law) has posted Should Death Be So Different?: Sentencing Purposes and Capital Jury Decisions in an Era of Smart on Crime Sentencing Reform (Arkansas Law Review, Vol. 70, No. 227, 2017) on SSRN. Here is the abstract:
We are in an era of "Smart on Crime" sentencing reform. Several states and the federal government have made major changes to their sentencing policies -- from reducing the incarceration of low-level, nonviolent drug offenders to the use of evidence-based sentencing to focus the most severe punishments on those who are at the greatest risk of recidivism. Often, today's reform efforts are spoken about in terms of being fiscally responsible while still controlling crime. Though such reform efforts do not explicitly acknowledge purposes of punishment -- such as retribution, incapacitation, rehabilitation, or deterrence -- an undercurrent running through all of these reforms is an effort for sentencing to make sense in light of sentencing goals given the resources available. Therefore, thinking about ultimate purposes or goals in sentencing is necessarily a part of the sentencing reform discourse. For instance, reducing the incarceration rates for low-level nonviolent offenders is an acknowledgment that the theory of incapacitation, which punishes based on future dangerousness, does not require incarceration in these cases. Likewise, such reform measures make a statement about the relatively lower moral culpability of such offenders, meaning that the theory of retribution does not require incarceration either. Further, evidence-based sentencing recognizes that using punishment to rehabilitate such offenders may be possible and therefore these evidence-based practices focus on treating the individual offender through individualized probation conditions, rather than simply defaulting to a term of imprisonment. Of course, in these non-death sentencing situations, it is unclear what particular sentencing purpose is the main focus of the reform efforts.