CHAPTER ONE Distributive Princi­ples of Criminal Law What do we seek to achieve by imposing criminal liability and punishment? What princi­ples should govern? ­These may seem like academic questions, but they are not. One cannot rationally and thoughtfully draft or interpret a crimi- nal code, draft sentencing guidelines, or impose a criminal sentence without knowing the answers to ­these questions. A drafter of criminal code or sentenc- ing guidelines must make hundreds if not thousands of choices in formulat- ing criminal law rules, and sentencing judges must make a large number of discretionary judgments in determining the amount and method of punish- ment to impose in a given case. And each of ­ these decisions can be affected by the princi­ple that the criminal justice system has ­ adopted for distributing criminal liability and punishment. Should criminal liability and punishment rules be set to match an offend- er’s moral blameworthiness for the offense—­his just deserts? Or should they be set to maximize the general deterrent effect of a criminal sentence on other potential offenders? Or should liability and punishment be set according to ­ whether this offender ­will be dangerous in the ­future and seek to incapacitate him or her during the time of greatest dangerousness? Which of ­these princi­ples a jurisdiction adopts as its guide in imposing criminal liability and punishment ­ will have a dramatic effect ­ because each of ­ these alternative princi­ples ­ will generate a quite dif­fer­ent distribution. Each ­ will impose a dif­fer­ent amount of criminal liability and punishment on a dif­ fer­ent set of ­people. Consider two examples. Should a jurisdiction adopt an insanity defense? If incapacitating danger- ous offenders is the criminal law’s primary goal, then it certainly should not have such a defense ­because the ­people shown to be dangerously mentally ill
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