Crime and American Punishment

...Since no one can tell whether or not a criminal will strike again, there is no moral justification for imprisoning him on the assumption that he will...

...Doing Justice, the product of four years of meetings (1971-75) by the Committee for the Study of Incarceration, chaired by former Senator Charles Goodell of New York, reflects the questions now being raised to challenge the conventional wisdom about prisons and their purposes...

...criminal justice system...

...Andrew von Hirsch, the author of the Committee's report, begins by carefully stating the case for traditional, future-oriented theories of incarceration...

...Next, he logically demolishes the argument for "predictive restraint" of presumed recidivists by showing that we simply lack the ability to predict which prisoners will be repeaters...

...And von Hirsch makes a compelling case, taking the reader along in his step-by-step reasoning process...

...This brings the Committee to a new, and very old, idea—deserts, or having the severity of a sentence "depend on the seriousness of the defendant's crime or crimes...

...But not sufficient to accomplish what...

...Until recently, imprisonment was generally understood as a means of rehabilitating those lawbreakers who are not beyond salvation, and of protecting society from the unrepentant likely to strike again...

...The idea of just deserts is enormously appealing and, though it abandons decades of penal thought, indeed comports with most people's common sense...

...Nevertheless, the moral theory of deserts tells us nothing about whether sentences for a given crime should range from probation to three years, or from three to 10, or from 10 years to the death penalty...

...To ask the question is to point to the difficulty: We are beyond logic here, and individuals may reasonably differ as to the "seriousness" of a crime or the "just deserts" of the criminal...

...It richly deserves the often too-easily awarded accolade of "thought-provoking," and well merits the attention of those to whom "doing justice" remains an important concern...

...In requiring us to examine sentencing in terms of morality, Doing Justice shifts the entire ground of the debate over criminal justice, and changes the way most readers will think about crime and punishment in America...

...For deserts works well to explain why incarceration is justified, but does little to indicate how much...

...Reviewed by Elliott Abrams Special Counsel to Senator Henry M. Jackson In colonial America, retribution for criminal acts consisted primarily of execution, banishment and the inflicting of bodily harm...

...Presumptive sentences for upper-range serious offenses would then fall somewhere between 18 months and three years (except for repeat violations, where sentences could run as high as four or five years...

...As he points out, however, this approach also has its problems: Its stark utilitarianism could sanction the flogging or even execution of car thieves, if fewer cars would thereby be stolen...

...Prisons grew in number in the 19th century and today form the basis of the U.S...

...The argument over criminal justice thus returns to the moral precepts of Kant and Bec-caria, and to what the Committee calls a "common sense notion of fairness...

...Yet the force of reason eventually runs out, and the Committee's argument begins to experience difficulty...

...That such issues are raised by this book is an indication, however, not so much of its weakness as of its strength...

...Moreover, this dual rationale was considered enlightened and utilitarian because it focused on the criminal's future relations with society, rather than on what he had done in the past...

...The Committee itself espouses what many will regard as a most lenient range of penalties: "We recommend adoption of a scale whose highest penalty (save, perhaps, for the offense of murder) is five years—with sparing use made of sentences of imprisonment for more than three years...

...Short, well-written and, for the most part, cogently argued, it makes a very significant contribution to the current criminal justice debate in America...

...We do know that repeat offenders, as a group, account for a very high percentage of the violent crimes committed, and James Q. Wilson has argued, as von Hirsch notes, that great reductions in crime can be achieved by incapacitating repeaters through very long prison sentences...

...If Wilson is right and the well-being of society is thus satisfied, can it not be argued that a habitual violent criminal deserves a lengthy sentence...

...Von Hirsch does not dismiss all future-oriented theories...

...Von Hirsch notes that "the focus on the past is critical": It "distinguishes deserts from the other purported aims of punishment—deterrence, incapacitation, rehabilitation—which seek to justify the criminal sanction by its prospective usefulness in preventing crime...

...he accepts deterrence as a reasonable basis for imprisonment...

...One may agree that American prison sentences, the longest in the world, are often unduly severe, and yet feel that three to five years in jail is not sufficient punishment for a violent repeat rapist...

...Deterrence alone, with its "greatest good for the greatest number" overtones, explains only why incarceration is socially useful, not why it may be seen as "doing justice...

...It demands, too, that punishment be fixed objectively to suit particular crimes, rather than subjectively variable (based on one judge or parole board's opinion of the offender's character) and therefore indeterminate...

...He then demonstrates what has become increasingly evident in recent years, that rehabilitation is simply not being accomplished, and concludes that the notion behind it is "plainly untenable...

...To be sure, it acknowledges that a criminal record should be a factor in sentencing: "A repetition of the offense following conviotion may be regarded as more culpable, since [the offender] persisted in the behavior after having been forcefully censored for it through his prior punishment...

...Later, as capital offenses were limited, population growth made exile difficult, and humanitarianism did away with corporal punishment, incarceration became a more widely accepted way of dealing with wrongdoers...

...It gives incarceration the quality of justice, while deterrence merely tells us why it is useful...