Editor's Introduction: New Topics in Sentencing Theory
Two questions have dominated the intellectual history of the criminal law: What acts or omissions should the state criminalize? and Why is the state entitled to punish someone-that is, to intentionally harm them-when they commit an offense? However, since the decline of the rehabilitative ideal in the 19 7 0s,I and the subsequent rise of a racialized mass incarceration in the United States, a third question has officially joined the corpus: How much (and what sort of) harm should the state
... ct on someone when they commit an offense? The reasons that inform our answers to this trinity of questions may overlap to a degree, but it is likely that as we journey from a theory of criminalization to a theory of punishment to a theory of sentencing, we will lose, gain, and refashion principles along the way. For instance, the (crude) beliefs that the criminal law ought to enforce interpersonal morality and that those who offend against interpersonal morality deserve to suffer do not imply very much about what sort of suffering-or, perhaps, mercymight be in order. This special issue of the New Criminal Law Review seeks to contribute to the still young field of sentencing theory, and to help discover the set of reasons that ought to calibrate and constrain state punishment. Given that the state in its capacity as punisher is at its most burdensome, with the dignity of offenders and their families often in the balance, the stakes are very high. Indeed, we might say that a reasonably liberal and just society depends for its existence-as a liberal society, as a just society, and, possibly, as a society at all 2 -on getting the right answer to the How much? question.