Sentencing in Criminal Cases. I was recently challenged by a retired city judge to justify my opinion that some defendants accused of identical crimes should receive different sentences. I do believe this is because of different theories of punishment, as I will detail.
Sentencing in Criminal Cases
The Deterrent Theory
Under this theory, the punishment is determined by the crime. This is “cookie-cutter” justice; every offense is associated with a certain penalty. The purpose is to deter others from committing the crime by demonstrating what the punishment will be. This theory is behind mandatory minimum sentencing laws, laws that don’t work as demonstrated by out burgeoning prisons filled with people serving mandatory sentences.
The Retribution Theory
Here, a sentence is dictated, influenced, or imposed based on the victim’s desire for revenge. While we don’t literally do this, many states have laws dictating that a victim be consulted before any plea bargain and be allowed to address the Court before a judge decides on a sentence.
The Punishment/Rehabilitation Theory
Under this theory, a judge imposes a sentence meant to punish as well as allow for rehabilitation of the offender, paying less attention to the crime and the victim.
It was in a discussion of this third theory that the retired judge challenged me. The judge asked if two defendants, charged with the same offense, should receive the same sentence. I said, of course, depending on the situation. This judge was almost incredulous at this idea.
The example I used, falling on deaf ears, was a husband accused of a domestic violence offense against a wife. I gave the opinion that any fine imposed should consider the impact on the family, especially the victim and any children. I continued that mandatory counseling should be imposed. Some people can absorb a fine with some or little impact on their finances, but other, less well-off people cannot and the financial shortfall would affect the victim and children more than the offender.
I am happy this judge is retired, but it is a shame so many are like-minded. If we have cookie-cutter justice, why bother with the charade so often called sentencing?