If you have issues viewing or accessing this file contact us at NCJRS.gov. SECTION 1: EXPERTS' PAPERS The Judge's Role in Sentencing: Basic Considerations for Effective Sentences by I. J. "ey" Shain::: Judges in Asia and the Far East, along process which affect the ultimate outcome with their counterparts in the Western na~ of an individual's case, namely, whether or tions, share a common goal: to achieve not to arrest; if arrested, whether or not fairness and effectiveness in sentencing. to detain the person in a holding facility While the dimensions of the problems of pending trial; whether or not to prosecute; crime and indeed the sophistication and and finally, if the case has been brought effectiveness of the criminal justice a~ to trial and the defendant is convicted, paratus may differ among countries, never­ whether to commit the offender to prison, theless in their efforts to reach wise, just Or to impose some other sentence. and appropriate sentencing decisions all Understandably, society's attention is judges face common problems. The hetero­ focussed on the judge's sentence, for it is geneity of judicial structures among Asian at this point in the criminal justice process and Far Eastern nations, and the vast dif­ that the State's nower is exercised and the ferences in the amount of financial and in­ crucial decision- is made concerning the stitutional resources allocated to the ap­ defendant's punishment. Simultaneollsly in pr~hension, trial and treatment of the of­ imposing that sentence, society hopes that fender do not obscure the fact that all it will serve a de~errent purpose and will judges seek to dispense justice and main­ discourage potential offenders from com­ tain security by their sentencing. mitting similar offenses. Accordingly. it is In virtually all countries efforts to cope a responsibility which is not taken lightly, with antisocial behavior, and to reduce its and the conscientious judge often faces it size and magnitude, has a high priority. with concern, consternation and on occa­ Lawlessness and crime threaten the well­ sion, with some anguish. being of a nation. If personal security While sentencing procedures vary to against crimes which threaten the personal some degree among cOllntries and while safety and property of its citizens is not the range of dispositional alternatives avail­ provided, then few societies can carry out able to judges also differs, all societies their essential functions. Accordingly, sub­ strive to achieve several fundamental ob­ stantial sums of money are allocated to jectives by their sentences. It is these goals crime control which are distributed among as well as the fundamental judicial and numerous criminal justice agencies. At the social considerations of sentencing which same time, sizable sums of mOlley arc compri<;c the principal focus of rhis paper. allocateu to health and welfare services devoted to maintaining the economic and social well-being of its citizens, and whose Purposes and Goals of Sentencing effectiveness or lack thereof will be re­ flected in the size of the delinquency and As one of society's entrusted agents fvr eriml! problem. maintaining social order and security, the The criminal justice 8y8tl>:,n is a conti­ sentencing judge is concerned with carry­ nuum and many crucial decisions are ing out public policy when he renders his made throughout the entire criminal justice sentence. This pOlicy is part of a larger outline of social purpose, for sentencing * Research Director, Judicial Council of Cali­ without relationship to specific social goals fornb and Visiting Expert, 42nd Seminar is sentencing without purpose. Thus, it is Course. extremely important and fundamental to 3 ·'. EXPERTS' PAPERS the entire discussion to ask what objec­ butive acts fol' practical as well as moral tives, goals and purposes are to be served reasons. in sentencing the individual transgressor Another problem is that retribution is against society's social standards and rules. quite expensive, both in terms of the actual In general, the fundamental purposes and costs of maintaining the prisoner as well goals of sentencing are fourfold: retribu­ as in human suffering. To house and de­ tion, deterrence, isolation and restraint of tain an individual for 10 years is costly the offender, and finally, rehabilitation. because society has to feed, cll"the, and protect him against harm by other pri­ A. Retribution soners and often has to provide economic support for his family while he is languish­ Society's contempt, disdain, and often ing in custody. While retribution may be anger at the transgressor's socially deviant necessary as a form of social expression and harmful behavior whieh threatens the against offenders. it is by no means in­ moral fiber, strength and health of the expensive. society, are manifestly expressed in the Finally, the more one is familiar wHh sentencing process. And while it is non­ the facts and circumstances of the of­ utilitarian, retribution is one of the obvious fender's background and the societal and fundamental social purposes of sen­ forces which may have been the impetus tencing. We punish to vindicate a moral for his antisocial behavior, the less retri­ sense; we make the offender suffer for bution seems to be in order. Let me his having made the victim of his crime illustrate this point. If a criminal entered suffer. While it may make society and the your home and stole your precious be­ individual victim feel better, retribution by longings, you would he upset and you itself serves no useful purpose. Neverthe­ might demand a severe sentence for the less, while it may not be utilitarian, as a offender. However, if you knew that the fundamental tenet of criminal law it is offender committed the crime as an act necessary, because most societies believe of desperation because his family was it is right. starving, the chances arc that you would Some people challenge the concept that demand far less retribution than if you retribution serves no utilitarian purpose. had no knowledge of the offender's ex­ It is argued that retribution is important tenuating personal circumstances. because it forces the offender to think For this reason, the judge who presides about the consequences of his behavior. tit the trial, and who, in the course of the However, in so arguing, actually one con­ proceedings, becomes familiar with the ceptualizes retribution as effectuating de­ offender's background, often opts for less terrence, or perhaps even rehabilitation, retribution than the policeman who might rather than punishment for retributive pur­ have risked life and limb to apprehend poses alone. the offender, or the public who,se knowl­ There are many problems with retribu­ edge of the case is ba"ed on an abbre­ tion. First of all, most societies dilute their viated newspaper :lCCollnt of the case with­ punishment. ThUS, if an offender com­ out being aware of the significant mitigat­ mitted a very heinous crime in which he ing factors. inflicted great bodily injury or harm on As a personal observation, very few the victim, most societies do not attempt people believe they should have to suffer to inflict the same degree of pain and for their wrongdoings. As a general rule, suffering on the offender. We may sen­ we believe in retribution for strangers, but tence the criminal to prison and isolate not for ourselves. him fro111 society for a number of years, As a final note, the public often argues but we usually do not attempt to exact that there is a need for retributio:;l because pain and suffering equal to that which he of the harm done to the victim. That may have produced by his criminal act. argument would be appropriate if there Thus real retribution, or "an eye for an was some way to help the victim by eye, and a tooth for a tooth," as proscribed imposing retribution on <the offender. Un­ in the Judeo-Christian Bible, is seldom fortunately, that is not the case. There imposed. Most societies dilute their retri- simply is no way to help the victim by 4 JUDGE'S ROLE IN SENTENCING retributive action against the offender. The deter others by making an example of reason is obvious: there is no way to undo him. In other words, you tell potential the harm which has already taken place. offenders that if they commit similar acts Finally, we must recognize that retribu­ then they too are likely to be punished and tion not only exists, but will continue to restrained. In this way, the offender serves exist as one of the purposes of the crimi· a more general social purpose. nal law irrespective of wbetber or not it Let me draw your attention to the edi­ is utilitarian. It exists because it provides torial from Taiwan appended to this paper. justification for our behavior as a society In an effort to reduce the incidence of by attributing to retribution some social robberies, which according to the officials good or purpose which it mayor may in Taiwan had reached dangerous propor­ not serve. tions, they decided to execute, by firing squad, those convicted of that offense. B. Deterrence Not only was there widespread pUblicity about the sentence, but furthermore, in an It is generally agreed that the major effort to broaden its impact, they televised justification for the criminal law is not interviews with the offenders. before they retribution but deterrence. By enacting were marched off to face the firing squad. criminal statutes, society hopes to deter Thus, these young criminals were called future criminal actiop by specifying the upon to serve a greater public purpose, types of behavior which are against the namely to deter potential offenders from social standards and by imposing penalties similar acts of robbery.