A Short History of American Sentencing: Too Little Law, Too Much Law, or Just Right

Abstract

For the centennial of this renowned Journal, I have been asked to tell the history of American sentencing-concisely, to be sure.The history of sentencing in the United States can be recounted from a number of perspectives.First, there is an institutional story-the story of the division of labor between all of the sentencing players.Sentencing is, after all, a system; sentencing institutions work in relation to, and not independent of, one another.Players in the sentencing system include the traditional ones: judges, lawyers-both prosecutors and defense-as well as the Congress, the public, sometimes the jury, and most recently, administrative agencies.Second, and as a corollary of that division of labor, sentencing can be examined through the different sources of its rules and standards, which can be common law rules crafted by judges, statutes drafted by legislatures, regulations promulgated by agencies, or standards articulated by academic experts, like penologists, sociologists, political scientists-the kind of scholars who write in this estimable Journal.Third, sentencing can be viewed through the lens of the changing substantive law, reflecting the shifting winds of penal theory, from rehabilitation, retribution, and deterrence, to incapacitation, and various permutations of each.Different theories of sentencing, in turn, confer power on different sentencing players.For example, rehabilitation theories necessarily enhanced the role of judges and parole officers, the purported experts in individualized punishment aimed at "curing" deviant behavior.Retributive theories did the same for Congress and the public, not to mention radio "shock jocks" and 24/7 cable television pundits.If the most important question was the culpability of the offender-what punishment this crime deserved-everyone was suddenly an expert, or so it seemed.