Sentencing theory: Difference between revisions
No edit summary |
No edit summary |
||
| Line 2: | Line 2: | ||
{{cquote|[[Liberalism]] neither wishes to nor can deny that the coercive power of the state and the lawful punishment of criminals are institutions that society could never, under any circumstances, do without. However, the liberal believes that the purpose of punishment is solely to rule out, as far as possible, behavior dangerous to society. Punishment should not be vindictive or retaliatory. The criminal has incurred the penalties of the law, but not the hate and sadism of the judge, the policeman, and the ever lynch-thirsty mob.}} | {{cquote|[[Liberalism]] neither wishes to nor can deny that the coercive power of the state and the lawful punishment of criminals are institutions that society could never, under any circumstances, do without. However, the liberal believes that the purpose of punishment is solely to rule out, as far as possible, behavior dangerous to society. Punishment should not be vindictive or retaliatory. The criminal has incurred the penalties of the law, but not the hate and sadism of the judge, the policeman, and the ever lynch-thirsty mob.}} | ||
[[Economic calculation]] problems arise in punishment, as with other government services. The "parsimony provision" of {{usc|18|3553}} provides, for instance, that " The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing. The parsimony provision does not specify ''how much'' deterrence, protection of the public, and rehabilitation courts should strive to impose a sentence that is sufficient to provide. | [[Economic calculation]] problems arise in punishment, as with other government services. The "parsimony provision" of {{usc|18|3553}} provides, for instance, that " The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing. The parsimony provision does not specify ''how much'' deterrence, protection of the public, and rehabilitation courts should strive to impose a sentence that is sufficient to provide. In ''Ministro-Tapia'', No. 05-5101 (2d Cir. Nov. 28, 2006, the court states that "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, consistent with the parsimony clause, impose the higher." In ''U.S. v. Rosa'', the court was reversed after it stated that the sentence it was imposing was harsher than necessary.<ref>{{cite web|url=http://appellate.typepad.com/appellate/2007/04/ca2_the_parsimo.html|title=CA2: The Parsimony Provision Does Matter, After All|date=11 April 2007|publisher=Appellate Law and Practice}}</ref> The upshot of this is that courts will have to be careful not to explicitly make such statements. | ||
==References== | ==References== | ||
Revision as of 06:07, 25 December 2013
Punishment refers to the sanctions that may be taken against an aggressor of justly held property. Punishment theories include retribution, restitution, deterrence, and rehabilitation. In practice (and in theory) law has a tendency to implement a mixture of several or all of the theories. According to Murray Rothbard, "The libertarian believes that a criminal loses his rights to the extent that he has aggressed upon the rights of another, and therefore that it is permissible to incarcerate the convicted criminal and subject him to involuntary servitude to that degree."[1] Ludwig von Mises writes:[2]
| “ | Liberalism neither wishes to nor can deny that the coercive power of the state and the lawful punishment of criminals are institutions that society could never, under any circumstances, do without. However, the liberal believes that the purpose of punishment is solely to rule out, as far as possible, behavior dangerous to society. Punishment should not be vindictive or retaliatory. The criminal has incurred the penalties of the law, but not the hate and sadism of the judge, the policeman, and the ever lynch-thirsty mob. | ” |
Economic calculation problems arise in punishment, as with other government services. The "parsimony provision" of 18 U.S.C. § 3553 provides, for instance, that " The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing. The parsimony provision does not specify how much deterrence, protection of the public, and rehabilitation courts should strive to impose a sentence that is sufficient to provide. In Ministro-Tapia, No. 05-5101 (2d Cir. Nov. 28, 2006, the court states that "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, consistent with the parsimony clause, impose the higher." In U.S. v. Rosa, the court was reversed after it stated that the sentence it was imposing was harsher than necessary.[3] The upshot of this is that courts will have to be careful not to explicitly make such statements.
References
- ↑ http://mises.org/rothbard/newlibertywhole.asp
- ↑ Mises, Ludwig von (1927). "The State and Antisocial Conduct". Liberalism. http://mises.org/liberal/ch1sec13.asp.
- ↑ "CA2: The Parsimony Provision Does Matter, After All". Appellate Law and Practice. 11 April 2007. http://appellate.typepad.com/appellate/2007/04/ca2_the_parsimo.html.