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The Sentencing Guidelines As A Not-So-Model Penal Code, Gerard E. Lynch
The Sentencing Guidelines As A Not-So-Model Penal Code, Gerard E. Lynch
Faculty Scholarship
We are accustomed to thinking about the criminal law, and the procedures for enforcing it, as divided into two separate stages. The first stage – the subject of penal codes and jury trials – concerns the definition of culpable conduct and the adjudication of guilt. The second stage – sentencing – concerns the consequences of conviction for the offender. Only rarely do we acknowledge that the conventional separation of these stages into compartments is highly misleading.
The articles in this Issue of FSR address, in one way or another, the extent to which the concerns of the substantive criminal law …
What Is Punishment Imposed For?, George P. Fletcher
What Is Punishment Imposed For?, George P. Fletcher
Faculty Scholarship
The institution of punishment invites a number of philosophical queries. Sometimes the question is: How do we know that inflicting discomfort and disadvantage is indeed punishment? This is a critical question, for example, in cases of deportation or disbarment proceedings. Classifying the sanction as punishment triggers application of the Sixth Amendment and its procedural guarantees. In other situations the question might be: Why do we punish? What is the purpose of making people suffer? In this context, we encounter the familiar debates about the conflicting appeal of retribution, general deterrence, special deterrence, and rehabilitation.
In this article I wish to …