NCJ Number
187499
Journal
American Criminal Law Review Volume: 37 Issue: 4 Dated: Fall 2000 Pages: 1313-1362
Editor(s)
Stacey E. Ostfeld
Date Published
2000
Length
50 pages
Annotation
This article examines State statutes and State constitutional provisions specifying utilitarian purposes of punishment, and the examples demonstrate the articulation of primarily or exclusively utilitarian purposes in law has been followed by the restoration of retribution as an essential purpose of punishment.
Abstract
The author indicates that State courts ignored and evaded relevant State statutes and constitutional provisions specifying non-retributive purposes, or engaged in unorthodox methods of statutory interpretation, in order to find retribution as a State purpose of punishment, in violation of the separation of powers. Further, State legislatures ignored constitutional supremacy by enacting retributive statutes that were contrary to constitutional provisions. With the help of the U.S. Supreme Court, some State courts abandoned the federalism doctrine in order to establish and promote retribution as a purpose of criminal punishment. These courts embraced U.S. Supreme Court remarks endorsing retribution, even if that meant displacing relevant State law. The author believes that, had law articulating utilitarian purposes been taken seriously, it could have had some real effect on the administration of criminal justice. She also concludes that, if utilitarian purposes of punishment are ever to be significant in the criminal justice system, the effort will have to involve nothing less than fundamental conceptual changes in the current understanding of criminal law. 214 footnotes