Why Judges Order Defendants to Jail or Prison

Reasons to send a convicted defendant to jail are varied--and contradictory.

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Many times, judges have the discretion to send convicted defendants to jail or prison, or to impose alternate punishments that don't involve incarceration. For example, a sentence that specifies "up to one year in the county jail" would allow a judge to choose no time at all. (To learn how to read and understand a specified sentence, see Learning the Sentence for the Charged Crimes.)

Why would a judge choose incarceration in a particular case? Competing theories exist as to why some laws require, and some judges order, convicted criminals to be incarcerated:

Retribution. Some people think that the primary goal of sentencing is retribution: to take out society’s vengeance against a defendant.

Rehabilitation. Others argue that the primary purpose of incarceration is rehabilitation. Under this theory, the sentence is supposed to help the defendant turn away from crime and adopt a lawful lifestyle. Rehabilitation is commendable in theory, but today’s jails and prisons tend not to rehabilitate. Many defendants say that they come out better criminals than they went in, because they have learned the tricks of the trade from other prisoners.

Deterrence. Some believe that because prison is so harsh, the threat of a prison sentence will deter (stop or prevent) people from committing crimes. Like rehabilitation, deterrence doesn’t seem to be effective, for several reasons. Often, crimes are committed on impulse or under the influence of a drug or alcohol, without thought of the possible consequences. Also, people who commit crimes have often spent major parts of their lives in institutions and do not fear incarceration the way people who have been free all their lives might. And finally, a sizable number of criminal defendants actually seek punishment because of various psychological pathologies.

Punishment and public safety. Increas­ingly, people in the know admit that prison doesn’t rehabilitate criminals or deter crime. They lock defendants up to punish them and get them off the streets for as long as possible.

Politics. Finally, and unfortunately, an influential group of leaders emphasize incarceration as a way of getting votes. By building more prisons and locking more people up, politicians can cite statistics that make them look tough on crime, whether or not the actual crime rate is actually reduced or the underlying problems causing the crime are ever solved.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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