Motivations
Criminal Justice operates on the fundamental understanding that society is enhanced by the rule of law. Those who violate society's norms are subject to punishment. There are several motivations (referred to elsewhere as “Sentencing Philosophies") that society uses as reasons to justify punishment of criminals, particularly for putting people in prison and keeping people in prison. These motivations are well-known and commonly understood, but they are not well-applied. Instead, after acknowledging these motivations for punishment, the usual criminal justice professional just lumps all of these motivations into one big pile, and proceeds to punish the criminal.
A couple of examples would be in order to help understand this concept. But first, you need to understand the differences in motivations. Here are the six commonly accepted motivations for putting people in prison and keeping people in prison:
A couple of examples would be in order to help understand this concept. But first, you need to understand the differences in motivations. Here are the six commonly accepted motivations for putting people in prison and keeping people in prison:
Retribution--- Retribution is the concept that the offense against another individual, and the offense of breaking society’s rules, is something which requires punishment to satisfy the aggrieved parties. Retribution is often the focus of victims of crime and those who identify with them and support them. By some people’s standards, there is no end to a desire for retribution, but for most of the public the concept exists that there comes a time when the criminal has “paid his debt to society.” You may think of Retribution and Debt to Society as synonymous.
Incapacitation--- Incapacitation is protection of the public by removing the offender from society. The philosophy of incapacitation assumes that once an offender has committed a crime, the offender is capable and likely to repeat the same or other criminal acts, and the public is justified in removing the ability of the offender to commit further crime. Incapacitation generally equates to a prison sentence, since inmates are kept away from potential victims by being imprisoned. Incapacitation is the result of a criminal justice professional feeling that the inmate continues to have Risk of Recidivism. However, it must be noted that criminal justice professionals often muddle their understanding of motivations, and reapply Retribution factors in deciding Incapacitation long after the offender's Debt to Society has been paid.
Rehabilitation--- Rehabilitation philosophy recognizes that society is also protected by changing an offender’s behavior to one in which the former offender is dedicated to being law-abiding. Therefore efforts are made to address the cause of criminal behavior and provide the offender with personal tools (knowledge and techniques) which reinforce law-abiding behavior. Rehabilitation looks toward the day when the offender is released, whereas Incapacitation looks at effectively handling the immediate situation of an offender having a high Risk of Recidivism.
Reparation--- Reparation suggests that there is something physical which can be done by the offender to repay the damage inflicted. This may be true for property crimes, but does not really apply to non-property crimes. An inmate “paying his debt to society” really has nothing to do with reparation, and much more to do with satisfying retribution.
Deterrence--- Deterrence is an effect of decreasing criminal behavior, in two ways: first, the individual is deterred by the threat of further punishment, and second, others who may be inclined to commit similar offenses are warned of the punishment for such actions. Deterrence will have its effect if the penalties for criminal behavior are sufficiently strict. There is considerable debate on the actual effect of incarceration on deterring additional criminal behavior. Some hold that longer incarceration only teaches inmates how to be better criminals, while depriving them of real-world experience that would aid their future integration back into society. Thus deterrence as a motivation for incarceration is questionable.
Denunciation--- Denunciation involves society expressing its disapproval and reinforcing its moral boundaries. Denunciation can have a positive effect in protecting other potential victims. For example, the Sex Offender Registry is a form of punishment by denunciation. Youth are influenced by hearing those in authority denounce crimes, particularly those of a moral nature. However, supporting denunciation without a clear understanding of the ramifications can sometimes have undesirable consequences and fuel injustice.
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Now let us look at a couple of examples about how the criminal justice system currently works. With Determinate Sentencing it is up to the judge to decide on the entire sentence. The judge understands the crime and what would be a reasonable sentence to satisfy retribution, but the judge only can guess at the appropriate length of time to imprison the offender for the purpose of incapacitation. Whether or not the offender is committed to being law abiding, the offender is released at the point in time when his sentence expires. So he judge might pad the sentence to take into account the offender's state of mind some years down the road - which of course he can't know! The result of releasing an unreformed criminal is increased recidivism. Many jurisdictions have moved away from Determinate Sentencing for these reasons.
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With Indeterminate Sentencing the judge may only be able to prescribe a very wide range of times that the offender might be required to serve, say, for example one to fifteen years. (This puts very little incentive on the judge to take responsibility to get it right - it's not his problem!) So the decision about how long of a term to serve falls to a parole board. After months or years of incarceration the parole board may hold a hearing to determine if the inmate should be released. The parole board's consideration is how much more should the inmate be punished. They rehash the crime, including recalling the victims to review how badly they still hurt. Whether or not a reasonable time has been served for satisfying retribution, the clock is reset and retribution is again a consideration. This is not reasonable nor fair to the inmate. It is potentially re-damaging the victim to again review the crime. The parole board is often overworked and spends little time considering a case. They do not give adequate consideration to the current state of the inmate's likelihood to recidivate if paroled. These circumstances lead to inadequate decisions about which inmates to continue to hold for the purpose of incapacitation and rehabilitation. The evidence is in the high rate of recidivism. If good decisions were made, recidivism would be low.
The point of Dual Mode Sentencing is that different motivations are best served by different responses. Understanding the different motivations and their linked best response is key to understanding Dual Mode Sentencing.
Not all motivations apply equally at all times. Also, circumstances change with time. So at different times in the criminal justice process it becomes important to reconsider our motivations. As an example, responding to retribution is best left in the hands of the sentencing judge. After hearing from the victims, the judge is in the best position to determine a penalty based on retribution. This results in a determinate sentence. But the judge really does not understand the circumstances which will relate to incapacitation or rehabilitation several years down the road. That would require a crystal ball. So it is best left to decision-makers in the future.
Those future decision makers will be more in a position to consider whether an inmate is fit to re-enter society on the basis of incapacitation and/or rehabilitation, but they should not be reconsidering retribution. They have no business trying to figure out "how much more should a person be punished for his crime." At that time, the Debt to Society has already been satisfied. But it is still important to make sure that society is safe. So this is the point in time that an indeterminate sentence gets to be justly applied. There you have the basis for Dual Mode Sentencing, based on different motivations being applied at different times.
Dual Mode Sentencing is more just and fair because those making the decisions have a more clear picture of why they are making those decisions. They have considered their motivations!
The point of Dual Mode Sentencing is that different motivations are best served by different responses. Understanding the different motivations and their linked best response is key to understanding Dual Mode Sentencing.
Not all motivations apply equally at all times. Also, circumstances change with time. So at different times in the criminal justice process it becomes important to reconsider our motivations. As an example, responding to retribution is best left in the hands of the sentencing judge. After hearing from the victims, the judge is in the best position to determine a penalty based on retribution. This results in a determinate sentence. But the judge really does not understand the circumstances which will relate to incapacitation or rehabilitation several years down the road. That would require a crystal ball. So it is best left to decision-makers in the future.
Those future decision makers will be more in a position to consider whether an inmate is fit to re-enter society on the basis of incapacitation and/or rehabilitation, but they should not be reconsidering retribution. They have no business trying to figure out "how much more should a person be punished for his crime." At that time, the Debt to Society has already been satisfied. But it is still important to make sure that society is safe. So this is the point in time that an indeterminate sentence gets to be justly applied. There you have the basis for Dual Mode Sentencing, based on different motivations being applied at different times.
Dual Mode Sentencing is more just and fair because those making the decisions have a more clear picture of why they are making those decisions. They have considered their motivations!
Pop Quiz
Just for practice, let's consider some commonly held attitudes of the general public - and let's see if we can figure out the motivation that drives that attitude.
“Lock him up and throw away the key.” |
Retribution
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“We need to keep him off the streets.” |
Incapacitation
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“Make him pay for what he’s done.” |
Retribution
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“He should pay me back for what he took.” |
Reparation
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“He deserves to be in prison.” |
Retribution
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“If he’s let out he will do it again.” |
Incapacitation
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“He should be branded for his crime.” |
Denunciation
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“Make an example of him.” |
Deterrence
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“If he could keep a job he wouldn't steal.” |
Rehabilitation
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“He did it to fuel his drug habit.” |
Rehabilitation
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Pardon my use of the masculine gender. The concept applies to both men and women.