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Defendants should not be punished more than they deserve. Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture. Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender's culpability or the seriousness of an offense. How can a society committed to desert as a limitation on legitimate sanctions allow such undeserved punishments? Critics argue increasingly that our focus on what offenders deserve is itself part of the problem. They claim that the notion of desert is too amorphous, malleable, and arbitrary to limit sentences, and instead operates as a moral license for excess. To avoid overpunishment, they urge us to pay less attention to desert. The problem, however, is not too much attention to desert. The real problem is too little attention to desert as a constraint. Sentencing statutes do not require an explicit determination of the limits of desert. Most regimes instruct judges to select sentences based on both desert and utility as if they were commensurate concerns. This tempts judges to exaggerate or ignore the limits of desert when greater severity would advance utilitarian ends, such as incapacitating the defendant or deterring others. A sentencer's perceptions of what is good for society as a whole can lead to sentences of virtually unchecked brutality. Remarkably, the rich existing literature on desert in sentencing has overlooked how our sentencing procedures thus invite sentencing excess. To prevent undeserved punishment, we must reform the sentencing process. Sentencing should begin with a cap, a specification of the maximum set by desert, prior to any inquiry into possible future benefits that a penalty might achieve. No final sentence should exceed that preset upper limit. Although existing statutory minimum penalties might still require undeservedly severe punishments, this proposed reform would expose their injustice and bolster the case for their repeal., Introduction I. The Limiting Principle that Punishment Must Be Deserved A. Criminal Law Is Premised on Desert B. Sentencing Law Emphasizes Desert as a Key Concern C. Constitutional Review of [...]

The article delves into the comparative approaches to criminal law between Europe and the U.S., highlighting the stark differences in punishment severity. It discusses Professor James Whitman's analysis of the cultural and judicial norms underlying these differences, particularly focusing on the presumption of mercy in Europe versus the presumption of innocence in the U.S.

Defendants should not be punished more than they deserve. Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture. Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender's culpability or the seriousness of an offense. How can a society committed to desert as a limitation on legitimate sanctions allow such undeserved punishments? Critics argue increasingly that our focus on what offenders deserve is itself part of the problem. They claim that the notion of desert is too amorphous, malleable, and arbitrary to limit sentences, and instead operates as a moral license for excess. To avoid overpunishment, they urge us to pay less attention to desert. The problem, however, is not too much attention to desert. The real problem is too little attention to desert as a constraint. Sentencing statutes do not require an explicit determination of the limits of desert. Most regimes instruct judges to select sentences based on both desert and utility as if they were commensurate concerns. This tempts judges to exaggerate or ignore the limits of desert when greater severity would advance utilitarian ends, such as incapacitating the defendant or deterring others. A sentencer's perceptions of what is good for society as a whole can lead to sentences of virtually unchecked brutality. Remarkably, the rich existing literature on desert in sentencing has overlooked how our sentencing procedures thus invite sentencing excess. To prevent undeserved punishment, we must reform the sentencing process. Sentencing should begin with a cap, a specification of the maximum set by desert, prior to any inquiry into possible future benefits that a penalty might achieve. No final sentence should exceed that preset upper limit. Although existing statutory minimum penalties might still require undeservedly severe punishments, this proposed reform would expose their injustice and bolster the case for their repeal. [ABSTRACT FROM AUTHOR]

Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state's reasons for imposing a death sentence may not be executed. Outside of capital punishment, the answer is still open. This Article begins to fill that gap, focusing on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation. Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their suffering. But judges are busy, defendants are not always interested, and the law often treats such explanations as unimportant or even unwise. Legislatures, moreover, rarely convey the purposes of statutory penalties, and plea bargaining can further obscure the reasons for punishment. Scholars and critics of American criminal justice tend to pay little attention to these deficits. Perhaps explaining individual sentences seems unimportant compared to the larger effort to humanize and rationalize penal policy. In fact, however, the two are intertwined: communicating the purposes of punishment publicly affirms the dignity and humanity of offenders as reasoning moral beings whose suffering requires justification. While humanizing offenders, such explanation also opens a path to larger reforms. Furthermore, sentencing explanation may mitigate the risk of error, bias, or excess by focusing judges on legitimate considerations. Current sentencing rules and policies undervalue punishment explanation, often in favor of efficiency. New norms and practices must be created to ensure that the reasons for punishment are clearly and publicly articulated to offenders. Judges, legislatures, prosecutors, defense attorneys, and corrections officials each have a part to play in making that a reality. [ABSTRACT FROM AUTHOR]

This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform. [ABSTRACT FROM AUTHOR]