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The Institutional Design of Punishment

Rappaport, Aaron J., The Institutional Design of Punishment (June 14, 2018). Arizona Law Review, Forthcoming; UC Hastings Research Paper No. 295. Available at SSRN:

“For the past 40 years, policymakers have engaged in a debate over which institution should wield the principal power over punishment. Should courts and parole boards have the dominant role at sentencing, or should that power be left to legislatures and sentencing commissions? These debates are typically couched in policy terms, yet they also raise deeply philosophical questions, most notably: What is the morally justified sentencing system? Perhaps surprisingly, criminal theorists have almost uniformly ignored this normative question, and that neglect has degraded the quality of the on-going institutional debates. This paper seeks to address that shortcoming by exploring the moral ramifications of design choices in the sentencing field. In particular, the paper identifies the institutional structure best suited for promoting utilitarianism, a widely-accepted moral theory of punishment. Drawing insights from cognitive science and institutional analysis, the paper concludes that a properly structured sentencing commission is the institution best able to satisfy the moral theory’s demands. Beyond this policy prescription, the paper has a broader goal:To start a conversation about the link between moral theory and institutional design, and to encourage policymakers to explore more fully the premises of their own institutional choices in the criminal justice field.”

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