Just Sentencing

Principles and Procedures for a Workable System

Richard S. Frase

Studies in Penal Theory and Philosophy

The first book in over forty years to present a fully developed hybrid punishment theory which incorporates both utilitarian and retributive sentencing purposes.

Just Sentencing

Principles and Procedures for a Workable System

Richard S. Frase

Studies in Penal Theory and Philosophy

Description

For most of the 20th Century, sentencing purposes and procedures were virtually the same in all American jurisdictions. The primary sentencing goal was rehabilitation, to be accomplished mostly in prison. To achieve this goal, judges and parole boards were given broad discretionary powers. In the 1970s, legal scholars and critics began to question such unfettered discretion, and to advocate for a system of prison-as-punishment, not as moral reeducation. Lawmakers began to experiment with mandatory penalties and other limits on sentencing discretion. These changes broke the previously uniform standard of sentencing in America. Today, sentencing purposes and procedures vary wildly between different state and federal jurisdictions. Our fragmented sentencing system has contributed to unprecedented increases in prison and jail inmate populations, disproportionately affecting racial minorities and creating a staggering drain on state budgets. The systems in most jurisdictions are disorganized, expensive, and unfair. We need a new vision, and a new way forward.

In Just Sentencing, Richard S. Frase offers a hybrid sentencing model that combines clearly-stated normative principles with procedures that have proven successful in practice. Frase advocates an expanded version of the theory of limiting retributivism, recognizing desert-based and other limits on sentence severity while accommodating crime control and other non-retributive punishment purposes. These principles are implemented with procedures based on the best state sentencing guidelines systems, including mandatory resource- and demographic-impact assessments, appellate review that preserves substantial trial court discretion, and abolition of parole release discretion. This book also shows how the core principles and procedures of the proposed model have been successfully implemented in several states, and endorsed in model sentencing codes and standards.

America currently lacks a comprehensive understanding of the purposes and limits of punishment. Just Sentencing offers us a cogent and urgently-needed solution for the incoherent and unsustainable American sentencing system.

Just Sentencing

Principles and Procedures for a Workable System

Richard S. Frase

Studies in Penal Theory and Philosophy

Introduction
A. Sentencing at the Crossroads: Recent Major Changes in Goals, Procedures, Law, and Practice
B. The Need for a Model that Accommodates All Major Sentencing Purposes and Limitations
C. The Current Limiting Retributive Model
D. Other Hybrid Punishment Theories
E. The Expanded Limiting-Retributive, State-Guidelines Model ["the Expanded Model"]
F. Organization of Chapters

Chapter 1
The Expanded Limiting-Retributive, State-Guidelines Model
A. The Expanded Model's Sentencing Principles
B. The Expanded Model's Sentencing Procedures
C. Conclusion

Chapter 2
Limiting Retributivism and Other Hybrid Theories
A. Norval Morris's Hybrid Model
B. Hybrid Theories Proposed by Other Writers
C. Conclusion

Chapter 3
Elements of the Expanded Model in Minnesota, Other Sentencing Systems, and Model Codes
A. Minnesota's Guidelines-based Limiting Retributive System
B. Other Well-developed State Guidelines Systems
C. Features of the Expanded Model in Other Guidelines Systems
D. Limiting Retributive and other Expanded Model Elements in Non-Guidelines Systems
E. Features of the Expanded Model in Recommended Sentencing Standards and Codes
F. Conclusion

Chapter 4
The Problem of Enhancements for Prior or Multiple Current Convictions
A. Prior-record Enhancements
B. Sentencing of Multiple Current Offenses
C. Conclusion

Chapter 5
The Problem of Disproportionate Racial Impact
A. Extent and Causes of Disproportionate Minority Confinement
B. How Crime and Criminal Justice Cause More Crime, and Perpetuate Social Disadvantage
C. What to Do?
D. Conclusion

Conclusion
References
Table of Cases
Index

Just Sentencing

Principles and Procedures for a Workable System

Richard S. Frase

Studies in Penal Theory and Philosophy

Author Information

Richard S. Frase is the Benjamin N. Berger Professor of Criminal Law at the University of Minnesota.

Just Sentencing

Principles and Procedures for a Workable System

Richard S. Frase

Studies in Penal Theory and Philosophy

Reviews and Awards

"Richard Frase's trailblazing Just Sentencing is the most ambitious and successful book yet written on sentencing reform in America. It authoritatively blends bodies of knowledge and experience - on normative theories of punishment, the effects of sentencing changes since 1975, and the operations of criminal courts - that are usually kept apart . If American policy makers want to create systems of sentencing that are better, fairer, and more just, Frase has shown them the way." --Michael Tonry, Professor in Law and Public Policy, University of Minnesota, and Senior Fellow, Netherlands Institute for the Study of Crime and Law Enforcement

"What would a sensible sentencing structure look like in the second decade of the 21st century? How does one even think about such a question? How should one evaluate whether one has achieved all that can be achieved in structuring sentencing decisions? This book boldly addresses these and other questions, proposing a sentencing model that takes into account both what is known about sentencing, crime, and the criminal justice system while simultaneously considering what is likely to be acceptable to various groups. Whether or not one agrees with Richard Frase's conclusions to each of the difficult questions he addresses is, perhaps, less important than the incontrovertible fact that each of the areas he examines involves questions that cannot be avoided. This is a 'must read' book for anyone contemplating designing a rational and defensible structure for sentencing." --Anthony Doob, Professor of Criminology, University of Toronto

"Richard Frase has for decades contributed immensely to the theory and practice of sentencing reform. Just Sentencing is his crowning achievement. The ambition of this project is enormous: Frase sets out to develop an intellectually cogent theory of criminal punishment and a set of procedures and rules for implementing that theory. What is truly remarkable is that he has been successful. Frase's proposals are theoretically, politically, and practically justified. Every jurisdiction seeking to balance public safety, public resources, respect for offenders and victims, and the social and other costs of mass incarceration should consider Frase's analysis and proposals." --Kate Stith, Lafayette S. Foster Professor of Law, Yale Law School

"...This ambitious and complex model proposes a uniform approach to sentencing that would ameliorate the problems endemic to the current penal system... [Frase's] review of past theories and overview of existing models should prove useful to academics... Recommended." --CHOICE