I am grateful for the 30 students who completed and submitted the class questionnaire, and I am eager to get completed surveys ASAP (in my faculty mailbox on the third floor or by email) from anyone who has not yet submitted the form. I will be eager to discuss the collective "results" in class, and I really appreciate all the thought that was evident in many answers.
Our discussion Wednesday will focus particularly on how students ranked the various theories of punishment. But I want to make sure that our theory discussion is informed by some doctrine. Specifically, as the question in the title of this post reveals, I would be eager to discuss with some particularity whether you think the text or spirit of the US Constitution (or the federal criminal code) favors or prioritizes any particular theory of punishment.
Of course, there are lots of provisions of the federal criminal code, but 18 US Code § 3553(a) (which is reprinted in our casebook) seems most central to this discussion give its instructions to federal judges about what they must consider at sentencing. Some parts of 3553(a) speak to specific classic theories of punishment, but do any seem particularly favored or prioritized (or disfavored)? What theory is served by instructions like the requirement to consider "the need to avoid unwarranted sentence disparities" among similar defendants?
And, of course, there are lots of provisions of the US Constitution. But I think these two can usefully get a conversation started:
The Preamble: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Amendment VIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Sentencing Class @ OSU Moritz College of Law 
2 responses to “Does the text or spirit of the US Constitution (or the federal criminal code) favor or prioritize any particular theory of punishment?”
The quoted clause of 3553(a) (against disparities) seems to serve a theory of retribution, but, as we’ve discussed in class, the meaning of retribution feels slippery. Still, one part of retribution, to me, requires that sentences are responsive to offenses. That said, a normative sense of what that responsiveness really means is hard to articulate when one moves past the simplicity of eye-for-eye punishments. Once in that realm, the best basis we have for “the punishment matching the crime,” especially when it can seem that there is only one variable being manipulated (that being time of incarceration), is by comparison to sentences imposed on similar crimes. In my view, 3553(c)’s call for an explanation of why a particular sentence is imposed serves to try and patch some of the gaps that will arise in reaching for that retributive goal.
Would arbitrary, totally disparate sentences increase deterrence, decrease deterrence, or wash out at the end, I wonder?
The quoted clauses of the Constitution serve, to me, a theory of incapacitation, though that is informed by considering them against a the backdrop of the rest of the Constitution, which sets out the establishment and protection of liberties as its primary thrust. Incapacitation, though not a theory serving the individual liberty of the offender, seems the most likely of our discussed theories to beget “domestic tranquility” or “general welfare,” those being (in part) embodied by the liberties of the rest of the public that are theoretically kept intact by the incapacitation of the offender. (Though there is a good argument to be made that “general welfare” is best served by a theory of rehabilitation).
Article III section 3 clause 2 is interesting, too:
“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
Corruption of blood sounds way more metal than it actually is, in my understanding, which is that it refers to the punishment of one’s (innocent) heirs for one’s treason. This clause forbids such punishment (which I guess was otherwise O.K. in the King’s realm), suggesting to me, again, retributive values akin to those described above (punishing an innocent person would offend for much the same reasons as would wildly disparate sentences for the same crimes). There might be a utilitarian motivation in this display of apparent mercy, too: if you punish one’s insurgency to the state by also punishing their family, it might be a big ask to hope the family all remains faithful to the state punishing them for actions they didn’t commit!
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There is definitely a lot to unpack here, especially with Willie’s insightful comments. To the first point, I believe 3553(a) embodies the ideals of several theories of punishment. While I agree that it bears a tinge of retributivism, I also believe that it seeks to promote deterrence and education. Deterrence is premised on the notion that actors know the price paid for certain actions. Vast disparities in punishment could send confusing signals to actors and may actually promote crime if the actors feel that they could get away with a more lenient sentence. By striving to be somewhat consistent in sentencing, a judge could also help educate people by articulating a clear guidepost for people to assess whether committing certain criminal acts is worth the punishment (assuming that such a calculus occurs before the crime).
As to the US Constitution, I believe the various parts serve different roles. The preamble articulates a series of objectives that can translate into the criminal field, such as establishing justice, insuring domestic tranquility, and promoting the general welfare. Establishing justice tends to connote a retributivist viewpoint that the criminal justice system is meant to mete out justice however need be. Insuring domestic tranquility lends itself to the use of deterrents to prevent future crimes. Promoting the general welfare appears to suggest a utilitarian perspective where the interests of the one may need to be sacrificed for the needs of the many.
This broader encapsulation of theories appears to take a backseat to the prevalent theory of retributivism found in the 8th Amendment. Retributivists believe in wrongdoers receiving their just desserts. The punishment should fit the crime. The 8th Amendment echoes this notion by ensuring that punishments do not go too far in consideration of the crime.
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