7 Dec 2010

"Life without Parole" and modern theories of 'Punishment'

The beauty of criminal law is that it works not just on one principle. Rather a number of competing and often conflicting considerations inter-play when it comes to considering the punishment to be handed out to the convict. While societal interest demand deterrence and victimological school requires reparation, the law also has to play the role of a reformer. Thus if the person can be reformed, the punishment requires to undertake that consideration as well. Above all else it cannot be forgotten that the convict also remains a human being. Thus the dreaded confines of jail should not rather turn the individual as one with animal-insincts. 

On a number of these considerations, the role of a judge is to ensure that even a convicted individual turns into a reformed individual, 'parole' plays and important role. In this context, on the paper titled " 'Life Without Parole' Under Modern Theories of Punishment", Paul H. Robinson of the University of Pennsylvania Law School discusses the role and importance of 'parole' in the sentencing policy.

The abstract of the paper reads as under;
Life without parole (LWOP) seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done through a civil system that openly admits its preventive justification and goals.
Further, recent research shows that deterrence and incapacitation-based distributions of punishment commonly conflict not only with principles of deontological desert but also with lay people's intuitions of justice. Research also suggests that, by allowing such injustices, the criminal justice system undermines its moral credibility with the community it governs and thereby undermine its ability to harness the more powerful forces of normative crime-control. 
This preference for a desert-based distribution of punishment is reflected in the American Law Institute's recent amendment of the Model Penal Code – its first amendment in 48 years – which set desert as the dominant distributive principle for sentencing. Is LWOP an appropriate sentence under that desert principle? The core principle for a desert distribution is this: greater punishment should be imposed upon an offender of greater blameworthiness and less punishment upon an offender of lesser blameworthiness. Because LWOP represents the endpoint of the imprisonment continuum, it can be an appropriate sentence only for the most egregious case (or, if the death penalty is available, the second most egregious case). To use it more broadly is to violate desert by punishing equally cases of identifiably different degrees of blameworthiness, thereby trivializing the greater blameworthiness of the more serious cases. In other words, a desert distributive principle would not demand LWOP in a case if there has been, or reasonably could be, a noticeably more egregious case. This suggests LWOP ought to be a rare sentence, reserved only for the most blameworthy offenders.

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