Tuesday, July 30, 2013

Theories of Sentencing

A crime has been committed.  The defendant has been charged, tried and convicted.  The next phase: sentencing.  How should this person be punished?  What do we hope to obtain from their sentence?  Why do some people, who are convicted of similar crimes, have such drastically different sentences?

Sentencing, in Virginia and similarly throughout the country, is based on four main theories.  Deterrence, Incapacitation, Punishment and Rehabilitation are all typically considered when determining what a person's sentence should be.

Deterrence - This is meant to deter future crimes by not only this individual person, but also others who may be enticed to commit the same or similar crime in the future.  We, as a society, at least theoretically, want to make sure the sentence deters that individual and other individuals from committing that type of crime in the future.  We want to reduce crime in general in our society.

Incapacitation - This is meant to deter future crimes as well.  We want, again at least theoretically, to remove this individual from society to ensure that this individual does commit crimes in the future.  This begs the question, in my opinion, when is it ever time to allow this individual to return to society?  How do we know we have incapacitated him for long enough?  Nevertheless, this is to be considered when crafting a sentence for a criminal defendant.

Punishment - This is simply meant to punish the individual for the crime committed.  What degree of crime was it? Did they kill someone?  Did they injure someone?  Did they steal $5 or $50,000?  Should this make a difference as to sentence?  Society has determined over time certain crimes they think are more heinous than others and therefore, warrant a harsher sentence.  In large part, although not exclusively, this is played out through the punishment theory.

Rehabilitation - This is meant to help an individual become a "better person" and reduce the likelihood that they will commit crimes in the future.  Some say that not all criminal defendants can be rehabilitated.  Some criminal defendants, however, such as criminal defendants who are addicted to drugs, can be rehabilitated through services such as therapy.

All four of those theories are the basis for crafting sentences in Virginia.  Some apply to a certain criminal defendant than others but all should be considered and addressed by your attorney in a sentencing hearing. 

If you have been charged with a crime, seek the advice of counsel as soon as possible to ensure your rights are protected throughout the entire process.