The Right to Be Punished: Modern Doctrinal Sentencing

249 Pages·2013·1.443 MB·English

by  Gabriel Hallevy (auth.)

The Right to Be Punished
.
Gabriel Hallevy
The Right to Be Punished
Modern Doctrinal Sentencing
GabrielHallevy
FacultyofLaw
OnoAcademicCollege
ISBN978-3-642-32387-4 ISBN978-3-642-32388-1(eBook)
DOI10.1007/978-3-642-32388-1
SpringerHeidelbergNewYorkDordrechtLondon
LibraryofCongressControlNumber:2012949812
#Springer-VerlagBerlinHeidelberg2013
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To my dear daughter,
Ariel
.
And moreover I saw under the sun the place
of judgment, that wickedness was there; and
the place of righteousness, that iniquity was
there. I said in mine heart, God shall judge
the righteous and the wicked: for there is a
time there for every purpose and for every
work. I said in mine heart concerning the
estate of the sons of men, that God might
manifest them, and that they might see that
they themselves are beasts. For that which
befalleth the sons of men befalleth beasts;
even one thing befalleth them: as the one
dieth, so dieth the other; yea, they have all
one breath; so that a man hath no preemi-
nence above a beast: for all is vanity.
Ecclesiastes 3:16–19
.
Preface
Doesanoffenderhavetherighttobepunished?
“The right to be punished” may sound like an oxymoron, but it is not
necessarilyso.
A 29-year-old man with no previous criminal record broke into his neighbor’s
carandtookitwithoutpermission.Hewascaught2hlaterbythepoliceinageneral
check.In courthe was found guilty andconvictedoftheft. The court learned that
thetheftwascommittedbecauseofthedefendant’sdireeconomicsituation,having
beenfiredfromhisjob2weeksearlierandhavingawifeandsonentirelydependent
on him. The court must decide what is the appropriate punishment in this case: a
fine, probation, or incarceration? If it is a fine, what is the appropriate sum?
Ifincarceration,forhowlong?
This example raises some of the deepest questions about sentencing. For
instance, when the court imposes a 3-year imprisonment, what exactly makes the
offender deserve exactly 3 years and not 2 years and 11 months? What is the
difference between 28 and 29 months of imprisonment? What exactly makes a
particular punishment right and meet for a particular case? How should the
sufferingembodiedinaparticularpunishmentbemeasured?Howcanwemeasure
deterrence? Can imprisonment be imposed on a corporation? What should be the
differencebetweenpunishinga35-year-oldoffenderanda95-year-oldone?There
aremanysimilarquestionsthatsentencingbringstomind.
Oneofthebest-knownmaximsabouttheimpositionofpunishmentsincriminal
lawisthat“...the only golden ruleisthatthereisnogoldenrule.”1Thismaxim
reflects the common legal understandings about sentencing in most legal systems
today.Inmoderncriminallaw,whereastheimpositionofcriminalliabilityfollows
accurateandstrictrules,therearenosimilarrulesfortheimpositionofpunishment.
Theprocessofsentencingisvagueandobscure,asaretheconsiderationsusedfor
theimpositionofpunishments.
Sharpdifferencesinapproachexistbetweendifferentcourts,benches,andeven
individualjudgessitting onthe samepanel,regarding thedegreeofseverity tobe
shown when sentencing an offender. The vagueness of sentencing damages the
certainty necessary in criminal law and turns sentencing into an enigma for both
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