It has long been recognized that there are five distinct goals when sentencing a convict. Ideally, the judge considers the facts of a case then renders a judgment which reflects these goals.
By C J Oakes
Mandatory minimums, three strikes laws, and similar structures often limit the judiciary in rendering proper judgments. Likewise, prison officials are at the mercy of rules and regulations which provide guidelines which often fail to account for these goals.
Equal Under the Law Doesn’t Always Equal Justice
Throughout history, rulers and judges have seen that not every situation is the same. Not all are really equal in the eyes of the law, much as we would like to believe otherwise. Disparities in sentencing well-demonstrate this fact. For this reason, although there are five sentencing goals which must be considered when rendering a judgment and confining someone to prison, these are not always applied as they should. This is one of the problems facing our criminal justice system today.
When police enforce the law by making an arrest, the case is then presented to the prosecutor/district attorney or a grand jury, depending on the structure in place in the particular state holding jurisdiction. In any case, two key elements of every alleged crime are (or should be) considered. These are known as the Mens rea and Actus reus. These two Latin expressions mean simply, the mental state (Mens rea) and the actual conduct (Actus reus) of the crime in question. In other words, for a crime to have occurred, the action must align with the motive.
For instance, if a man kills another man who is burglarizing his home, in most states the killing is considered justified. Especially so is the killing justified if the burglar has a weapon, more so if the burglar attacks the homeowner. The homeowner had no intention (his mental state/motive) of killing someone when he went to sleep that night. Thus, there is no crime (again, in most states…some states do count the killing a crime). In most states, the prosecutor would simply drop the matter and not prosecute. In the eyes of the state, no crime was committed.
This example permits us to see that the justice system has tools in place to consider the elements of a crime so as to determine the wisest course to follow. Likewise, when the matter is taken to the court, the judiciary has (in many cases) the ability to consider what course would be best to follow for each defendant if found guilty.
These are the sentencing goals of any case:
- Restoration: Restoration seeks to help the victim be restored in mind and spirit. The goal of sentencing in this case would be to sentence the guilty in such a way that the victim feels a sense of relief and can move forward with life. An example of this would be to convict a rapist for a long duration of time such that the victim can recover from the crime, feeling some measure of safety. Another example would be to rule in favor of community service in certain offenses so that any victims (including the community) would benefit. In recent years, a movement for what has been termed “Restorative Justice” has begun, applying a Nordic form of justice which seeks to restore relations between both victim and perpetrator.
- Rehabilitation: When rehabilitation is the goal, a judge chooses the best avenue for the convicted. Prison may be the verdict, probation with conditions, entry into a rehabilitation program/facility, or some other avenue at the disposal of the courts. The Juvenile Justice system was structured largely to provide for such sentencing goals.
- Deterrence: Deterrence has come under fire in recent years because research has shown it to have little, if any, effect on future crime. Still, the goal of this type of sentence is to send a message to other potential law-breakers. The worse the crime, the tougher the penalty which is administered with the reasoning that others may think twice about committing the same crime. The idea is sound, but the evidence does not appear to bear witness that the goal is effective. This is one of the key arguments used by advocates of capital punishment (Tyler & Weber, 1982). This is also one of the most argued reasons for sentencing.
- Incapacitation: Few can argue, however, that some criminals simply need to be eliminated from society, often permanently. Incapacitation does just that—it removes criminals from the streets so that they can no longer commit crimes. In fact, most who argue against the death penalty argue in favor of Incapacitation as an alternative. Life without parole is one such. Incapacitation is also the purpose behind three-strikes and mandatory minimum legislation. This is view by most as the best goal when sentencing hardened criminals.
- Retribution: Retribution is another sentencing goal which is hotly debated. The goal here is as it states…retribution for crime, simple vengeance. According to some studies, simple retribution is one of the key reasons most death sentences are handed out. It is the belief that the defendant is getting his/her “just deserts” (Carlsmith, Darley, & Robinson, 2002; Tyler & Weber, 1982). Some also believe that this is a key motive leading to wrongful convictions because this involves strong emotions which can blur prosecutors, police, judges, and juries to facts. Additionally, there is often the logic that even if the defendant is innocent of this crime, he/she likely is guilty of others which were not found out Westervelt & Humphrey, 2001). The key reason this sentencing goal is so hotly debated is that retribution largely fails to achieve any form of rehabilitation. But then, that is a separate goal.
If we take a brief look back at the history of prisons as punishments, we find the past is much the same as the present. The only the exceptions are rehabilitation and deterrence. Rehabilitation started in the Monasteries, where efforts were made to transform errant individuals for the sake of salvation. Deterrence came along in the 18th Century when early social scholars began developing theories about criminal behavior and how best to stop it. Retribution has always been a reason to imprison, whether to “teach someone a lesson” or to keep them secure until they could be publicly humiliated at an execution. Incapacitation has existed as long as there have been political enemies which may be useful later; another form of incapacitation which is ageless, is exile. Finally, restoration as a sentencing goal cannot be dated because it traces to ancient Nordic culture.
A Note on Exile
Exile is really nothing new. the Bible tells of how Cain killed his brother Abel and for his crime, was exiled. Throughout the ages, exile has been used as a means by which society has rid itself permanently of criminals. In fact, at one time, England sent many convicts into exile to the New World (America) and Australia. These exiled criminals composed the bulk of new settlers in those lands for decades.
Why Sentencing Goals Are Important
Sentencing goals as a concept did not develop from a single source. Rather, sentencing goals simply developed over time as those in the criminal justice field noted that there are various reasons to sentence a convict. As research in the field developed, the reasons why a person might be incarcerated, sentenced to death, given probation, and so forth were condensed into these five basic goals. For any discussion of transforming the penal system, it is important to understand these goals and how they impact society.
Illustrating this is an essay on this website which you can read via the following link:
Certainly, sentencing impacts society. Just as individuals, businesses, and organizations set goals, so too must society, via our governing criminal justice structures, set goals when sentencing citizens convicted of crime. Yet, there does not appear to be a clear goal set for the criminal justice system other than to reduce crime. But reduce how? How much?
“To reduce” is too vague to be a valid goal. Much has been written on goals in recent decades. Zig Ziglar, Tony Robbins, Steven Covey, and many more have built empires helping people learn more about goal-setting in business and their personal lives. The reason is simple: Setting goals helps achieve both success and joy in whatever a person sets out to do.
Governments do understand the need to set goals, which is why JFK set a goal in 1962 to reach the moon before the end of the decade. Businesses understand the need to set goals, which is why they develop business plans including key indicators to show them when smaller goals leading to the bigger end goal are reached. So setting goals is not a new concept…though in most ways, it is when it comes to criminal justice. Or is it?
Appendix B shows the various mission statements for state government correctional systems throughout the United States. Such Mission Statements ideally help guide corrections officials toward a goal. The goals are both laudable and necessary, but the only problem is that the system is not designed to reach the goals.
Police departments likewise have goals, generally along the lines of those set by the laws…to capture law-breakers. Exactly what a law-breaker is may change, but police are clearly very effective in reaching their goals because most court systems are severely backlogged.
So there ARE goals.
What is missing is a single, cohesive goal for all three elements of the criminal justice system.
What is needed is a single, unifying mission which the entire system will embrace and enforce. The current situation is more akin to three brothers each determined to get rich while working separately and at times even fighting the efforts of the others. It does not take a genius to figure out that if the three brothers were to combine their efforts and work together, their collective goal would be realized much quicker and more efficiently. The current criminal justice system is much like this.
For this reason, to reform the penal system so it will align with the various sentencing goals used by the courts and society, a total transformation of all three branches of the system is necessary.
Though this series of articles largely focus on the Corrections side of the equation, the concept presented for a perfect prison aligns itself naturally with the missions/goals of the other two branches of criminal justice. This concept fills in a hole in the system in much the same way as one would fill a large empty section of a jigsaw puzzle with a larger, already completed portion. The best part is that this new concept in corrections is not only necessary and effective, it is viable and Constitutional.
At this point it would be useful to examine how the criminal justice system was intended to function but how the reality appears quite different by reading the following essay.
“Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.”
― Ayn Rand, Atlas Shrugged
Many aspects of the criminal justice system have been studied in recent decades to explain racial disparities and other injustices taking place within. Most studies draw the conclusion that although the appearance of discrimination is the cause of many of the problems, there is no sound evidence for such a conclusion (Crutchfield, Fernandez, & Martinez, 2010; Davis, 1998; Meyer & Grant, 2003; Spohn, 2009; Steffensmeier & Demuth, 2006; Vito & Walsh, 2008; Miller, 2008). Thus, the cause of these issues is proving elusive.
Could it be that the foundation of the system is flawed?
Could it be that all that is missing is a single, cohesive mission for the entire process?
In other words, could the problems occurring within the U.S. criminal justice system be as simple as a lack of unity?
In consideration of these questions and with a view to building a new form of corrections which will better align with the entire criminal justice system, let us no return to the five sentencing goals.
This time, we will realign these goals with a view to the goals which society may wish to set for the system. In other words, rather than have the system haphazardly mete out “justice” according to the ever-changing whims of politicians, let’s reform what we have into a single entity which serves the larger goals of the public as a whole. Recall that the five sentencing goals are…
- Restoration (Stage 1)
- Rehabilitation (Stages 1 & 2)
- Deterrence (Stage 2)
- Incapacitation (Stage 3)
- Retribution (Stage 3)
Notice that beside each is a stage designator. This signifies the general level of offense for the particular sentencing goal. This helps us categorize various offenses in terms of gravity so that we can decide whether an individual is “worth saving,” “can be rehabilitated,” or should simply “be discarded.”
Effectively, that is what the system now does, but rather than treating convicts in such concise terms, the system erroneously gives the appearance of trying to rehabilitate all. We must accept that this is simply not possible. It is, as stated by the prison warden in the 1967 film, Cool Hand Luke. He said, “Some men you just can’t reach.” That is true.
This new prison/criminal justice system concept recognizes that fact and functions accordingly. Consider these stages and how they apply to this new prison system.
- Stage One – Restoration and rehabilitation are closely linked. Thus, when reforming the correctional system, why not instead set a goal for those who are willing to make amends and help restore their victim?
- Stage Two – Deterrence and rehabilitation are also closely linked. Both are important and vital sentencing goals.
- Stage Three – Few will deny that incapacitation is vital to keeping society safe. And, accepting facts, humans will never give up on the notion that payback (retribution) is to be required of some criminal offenders.
Note that these three stages reflect three different objectives, or goals for criminal justice. It simply does not make sense to lump all criminal offenders into the same facility and hope that the various programs will work for some. The Perfect Prison would be developed in harmony with known human behavioral science.
The concept is simple; divide prison populations by the likelihood of rehabilitation.
The next chapter discusses an essay regarding rehabilitation which some may find startling, but the simple fact is that when we seek to “rehabilitate” a person, we are seeking to change their behavior. This is another way of stating that we are engaging in Behavior Modification techniques. To some, behavior modification smacks of mind control and/or brainwashing. To some extent, that is a fair assessment. Yet, most would agree that many criminals are in sore need of brainwashing. However, the key difference between brainwashing/mind control and what is proposed here is that behavior modification is a teaching tool.
The object with the Perfect Prison is to develop a system which segregates criminal offenders by the likelihood that they are willing and capable of change. Facing facts, many criminal offenders CAN change their behavior and often WANT to while others simply refuse to or lack the capacity to do so. These two opposing groups should not be placed in the same facility. By clarifying sentencing goals such that the criminal justice system recognizes these distinctions, we can properly rehabilitate more while protecting society from those which cannot/will not; and at the same time driving down costs.
Thus, a key element in this process is to consider the element of motive, or motivation.
Why Motive is Important in Sentencing
Motive is the underlying element to all human activity. Everything we do, we do because we have a reason, some purpose in mind. Even in rare instances when we must react quickly, there is always motive at play. This is the reason the criminal justice system considers Mens Rea (mental state). Mens Rea is the mental reasoning, or motive of a crime.
The motive behind a behavior (or action) is based on an individual’s personal values (or beliefs). For instance, consider a person who is hungry and without the funds to purchase food. What will that person do?
The course of action will depend on that person’s values. If the person believes that stealing is acceptable, then a theft will be the likely outcome. If, however, the person believes that theft, even if hungry is wrong, then another course of action will be taken. The person may choose to seek out a soup kitchen or food pantry UNLESS that person has a strong sense of pride and believes that such is too demeaning a course. In which case, the person must determine a different course of action. For someone with this set of values, begging on a street corner is out of the question, so what to do? Perhaps seek a way to make a trade, such as entering a restaurant offering to clear all the tables and clean the floors in exchange for something to eat? Perhaps dumpster-diving? Some other course?
The point is, when a person has a need to fill, is motivated to satisfy some internal hunger, the person will find a way to meet the need, but only in harmony with his/her personal values. Thus, if we can determine the motive behind an action (such as a crime), we can determine not only the true reason for the action but also the values which permitted the act. This can be invaluable information when determining how best to sentence an individual who is guilty of a crime.
This is important to keep in mind as we move into the next chapter.
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