Unit 3: Sentencing Principles


  • Dressler 25-26, 49-55 (through 6.04)

  • People v. Superior Court (CP)

  • Du (CP)

  • Gementera (CP)

Key Terms: 

  • determinate sentencing

  • indeterminate sentencing

  • proportionality


Sentencing objectives include protecting society, punishing the defendant for committing a crime (retribution), encouraging the defendant to lead a law-abiding life (rehabilitation), preventing the defendant from committing future crimes (specific deterrence), discouraging others from preventing crimes (general deterrence), securing restitution for the victim, and ensuring uniformity in sentencing.

Indeterminate sentencing systems dominated in the 1960s, when the primary goal of punishment was rehabilitation. Under this system, judges could consider the defendant’s character and the circumstances of the particular offense when imposing the sentence. Once the defendant was incarcerated, parole boards could release him before the completion of the sentence if he satisfied rehabilitative goals.

Today, most states favor determinate sentencing schemes, which give judges and parole boards far less discretion. The legislature or sentencing commission sets a range of punishments for each offense, and the judge (or jury) selects a sentence from within the specified range. Furthermore, corrections officials generally cannot release prisoners early for good behavior.

Utilitarian and retributivist theories emphasize different aspects of sentencing.


The philosopher Jeremy Bentham devised a set of rules for sentencing. First, even though it is hard to determine precisely how much punishment is needed to outweigh the benefits of criminality, the punishment must be sufficient: if the potential profit (real and imagined) that induces the offender to commit the crime outweighs the punishment, then there is no deterrent effect. Second, the greater the mischief of the crime, the greater the punishment should be. Third, the difference in punishment between two offenses must be sufficient to induce an offender to choose to commit the lesser of two offenses when the offender is planning the crime (For example, if the offender decides that he needs money, and must choose between writing fraudulent checks or committing a robbery). Fourth, when the offender is in the midst of committing the offense, the punishment for each particular  element of the offense and of similar, but greater, offenses should be adjusted so there is a motive to restrain the offender from committing the greater offense (For example, if an offender plans to commit a robbery with a gun for intimidation, but does not intend to actually use the gun, the punishment for firing the weapon should be such that the offender is deterred from firing it). Fifth, punishment should be limited to the minimum amount necessary, since punishment of offenders is itself a mischief to be avoided if possible.

Utilitarians consider general deterrence when determining sentences. They consider the social harm that will be caused by every offender who might commit this class of offense in the future. The appropriate punishment may differ over time and among jurisdictions, as the social harm may change. Also, a more easily deterred offense will warrant less punishment. Utilitarians advocate more severe punishments for repeat offenders under a theory of specific deterrence, as the repeat offender seems to be less susceptible to deterrence and more likely to commit future crimes.


Since retributivists justify punishment on the basis that the offender owes a debt to society, proportionality is an even stronger concept among retributivists than among utilitarians. To be considered fair under retributivist standards, the punishment must be proportional to both the offender’s moral blameworthiness and the harm caused. When determining harm, the retributivist does not look at the future harm of all such offenses, but instead looks at the actual harm inflicted by the offender.

Retributivists do not punish offenders more for being recidivists. The debt to society for the prior offenses has already been paid, and retributivists do not consider deterrence when calculating punishment.

Questions for Review:

Q1. Do you prefer the utilitarian approach to punishment or the retributive approach to punishment? Why?

Q2. Du was originally sentenced to six years for voluntary manslaughter and four years for using a gun while committing a felony to run consecutively. The judge then reduced her sentence to probation. What sentence do you think Du deserved?

Q3. Would a retributivist sentence Du differently than a utilitarian? Explain your answer.

Q4. Do you think judges should be able to impose shaming punishments?

Other Links:

Thinking shaming sanctions are a thing of the past?  Try telling that to Shena Hardin.

The Du case refers to a presentence probation report.  This document summarizes an investigation into the defendant’s history conducted prior to sentencing.  It is used to determine whether extenuating circumstances warrant reducing or increasing the sentence.