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This book assumes that one can justify the institution of punishment
and examines how one might justify one or another distribution of pun-
ishment. The latter question is of more than philosophical significance.
How should criminal liability and punishment be distributed within
a punishment system? Who should be punished how much? These are
the questions that every criminal justice system designer must answer,
whether giving instructions to criminal code drafters, sentencing guide-
line drafters, or individual judges exercising discretion in interpreting the
code or in sentencing offenders.
One can imagine using any of the justifications or “purposes” of
punishment as a distributive principle. That is, one could set liability and
punishment distribution rules in a way that would maximize efficient
deterrence, for example, or maximize rehabilitation or incapacitation of
the dangerous, or maximize doing justice. As will become clear later in
these discussions, each purpose of punishment when used as a distribu-
tive principle gives a quite different distribution of punishment. (In con-
trast, when used to justify the institution of punishment, the alternative
“purposes” work together toward a unanimous conclusion in support
of punishment.) Because each distributes liability and punishment dif-
ferently, we must decide which of the competing distributive principles
should prevail when they conflict.
One might initially suspect that the issue of the distribution of crim-
inal liability and punishment is as academic an inquiry as the justification
of the institution of punishment, for the two debates have commonly
been combined into one. But the truth is that setting the criminal justice
system’s distributive principle is of enormous practical importance.
Indeed, it is the single most important decision in constructing a crimi-
nal justice system. It is the means by which the legislature, the most dem-
ocratic branch, can provide needed guidance on fundamental principles
to criminal code and sentencing guideline drafting commissions. And an
articulated principle is essential to guide the exercise of discretion by
individual judges.1 Research has shown that different judges each have
their own personal liability and punishment philosophy. One survey of
federal sentencing judges, for example, revealed that “While one-fourth
of the judges thought rehabilitation was an extremely important goal of
sentencing, 19 percent thought it was no more than “slightly” important;
1 See Paul H. Robinson & Barbara Spellman, Sentencing Decisions: Matching the
Decisionmaker to the Decision Nature, 105 Col. L. Rev. 1124–1161 (2005).
Distributing Criminal Liability and Punishment 3
2 S. Rep. No. 98-225, at 41 n.18 (1983) (Senate Report for Sentencing Act of 1984) (citing
INSLAW/Yankelovich, Skelly & White, Inc., Federal Sentencing at III-4 (1981)).
3 One study done by the judiciary gave 50 judges the same 20 cases to sentence. The dif-
ferences in sentences were staggering. In one extortion case, for example, sentences
ranged from twenty years’ imprisonment and a $65,000 fine to three years’ imprison-
ment and no fine. Id. at 44 n.23; see also id. at 42–43 (citing Anthony Partridge & Wil-
liam Butler Eldridge, The Second Circuit Sentencing Study (1974)). This same disparity
in sentencing is reflected in the sentences given in real cases every day. One study com-
pared the sentences imposed in the different federal circuits. For forgery, as an example,
the average sentence ranged from 30 months in the Third Circuit to 82 months in the
District of Columbia. For interstate transportation of stolen motor vehicles, the ex-
tremes in average sentences were 22 months in the First Circuit and 42 months in the
Tenth Circuit. Id. at 41 & n.21 (citing Whitney North Seymour, 1972 Sentencing Study:
Southern District of New York, 45 N.Y.S. Bar J. 163 (1973)). See generally Marvin Fran-
kel, Criminal Sentences: Law Without Order (1973).
4 distributive principles of criminal law
Similarly, the Sentencing Reform Act of 1984, which created the United
States Sentencing Commission, provides:
The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the particular
sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
4 18 U.S.C. 3553(a).
Distributing Criminal Liability and Punishment 5