Purposes and Functions of Sentencing

American sentencing systems have fragmented since the modern sentencing reform movement began in the 1970s and predominant retributive theories of punishment have become obsolete. Indeterminate sentencing was ubiquitous, but when it lost credibility, no single approach replaced it. Every American jurisdiction has a crazy quilt of diverse and, in principle if not practice, irreconcilable elements. Influential retributive theories of punishment were a 1970s response to 1970s problems that no longer galvanize opinion or reform. They are incompatible with the recent growth of restorative and community justice, therapeutic jurisprudence, prisoner reentry programs, and knowledge about the effectiveness of treatment programs. Theories of punishment can provide normative criteria by which policies and practices can be measured, but to be used in that way they must speak to their own times. New sentencing systems more effective and more just than current fragmented systems can be developed, and they will be better if new normative theories germane to them develop in tandem. Sentencing policy in the United States has fragmented. There is no overriding theory or model. There are no widely shared understandings about what sentencing can or should accomplish or about conceptions of justice it should incorporate or reflect. Painting with a broad brush, utilitarian ideas held sway in the United States from 1900 through the mid1 970s (evidenced most strongly by indeterminate sentencing and extensive parole release), followed in succession by retributive ideas (evidenced most strongly by desert-based guidelines systems Michael Tonry is Sonosky Professor of Law and Public Policy and director of the Institute on Crime and Public Policy at the University of Minnesota Law School, and senior fellow in the Netherlands Institute for the Study of Crime and Law Enforcement, Leiden. I am grateful to Marc Miller, who first proposed I write on the subjects of this essay. An earlier version of this essay appeared in the Stanford Law Review (Tonry 2005a). © 2006 by The University of Chicago. All rights reserved. 0192 -3234/2006/0034-0006$ 10.00