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Retributivism Has a PastHas It a Future?$
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Michael Tonry

Print publication date: 2011

Print ISBN-13: 9780199798278

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199798278.001.0001

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The Future of State Punishment

The Future of State Punishment

The Role of Public Opinion in Sentencing

(p.101) 6 The Future of State Punishment
Retributivism Has a Past

Julian V. Roberts

Oxford University Press

This chapter considers what role, if any, should public opinion play in determining sentencing policy and practice. The chapter is organized as follows. Section II describes and explores competing perspectives on the issue of community involvement in sentencing. The arguments against community involvement involve the limited public knowledge of sentencing, and the at times unprincipled nature of reactions to crime, as well as the dangers of punitive populism. The justifications for heeding public opinion are both consequentialist and retributive in nature. First, it is argued that public views need to be heard because this will produce greater compliance with the law—a consequentialist justification. Second, retributivists should recognize that the seriousness of an offense is determined in part by the societal reaction to the proscribed conduct. The seriousness of a crime—a primary determinant of sentence severity—is to a degree culturally determined and not invariant over time and across jurisdictions. Section III demonstrates that principled reactions to offending may be extracted from public opinion research, even if these principles have been ignored by retributivists. Section IV addresses some practical issues and draws conclusions for the future of legal punishment.

Keywords:   sentencing policy, community involvement, public views, consequentialism, retributivism, legal punishment

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