Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework

Abstract

There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform. These frameworks have not faced up to political disagreement over sentencing. Instead, they either try to impose disputed moral theories (such as retributivism or consequentialism), or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. That is, the first, moral approach tries to impose a specific moral view in spite of disagreement, while the second, empirical approach tries and fails to repress disagreement and normative debate. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines. A framework for sentencing that directly and effectively confronts political disagreement is necessary. This Article is the first to offer such a framework. It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement. Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control. This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy. In light of these criteria, it offers reforms to enable the current system to better embody deliberative democracy, to confront political disagreement over sentencing, and to improve the troubled sentencing system through public reasoning.