InfoTrac Web: Expanded Academic ASAP.
 

Source: American Criminal Law Review, Fall 2000 v37 i4 p1313.

Title: Back with a vengeance: the resilience of retribution as an
articulated purpose of criminal punishment.
Author: Michele Cotton

Subjects: Punishment - Analysis
Lex talionis - Analysis
Judicial activism - Analysis
Locations: United States; States

Electronic Collection: A71252108
RN: A71252108
 

Full Text COPYRIGHT 2000 Georgetown University Law Center

I. INTRODUCTION

The purposes of criminal punishment are not only the province of legal
philosophers and scholars, but also part of positive law. Many state courts
and legislatures have specified in cases, statutes, and constitutional
provisions the legitimate state purposes, ranking and choosing among the
commonly-cited goals of retribution, deterrence, rehabilitation, and
incapacitation. Yet, despite having given great attention to the theoretical
value of the various purposes, legal scholars have given little consideration
to these articulations of purposes and what they might mean.(1)

This lack of attention is particularly surprising given that articulations of
purpose have become a particularly prominent feature of criminal law over the
last half-century. The U.S. Supreme Court was all but silent on the issue
until 1949; since then, in reviewing state criminal cases, it has on many
occasions remarked upon the purposes of punishment. State penal codes lacked
statutory statements of purpose until 1961, but about half adopted them
thereafter. State courts spoke only sporadically on the subject until the
1970s, but pronouncements about purpose have since become commonplace. The
only earlier concerted articulation of this sort occurred in the latter part
of the nineteenth century, when a handful of frontier states adopted state
constitutional provisions setting forth purposes. Even those provisions,
however, were used and interpreted in published cases primarily in the latter
half of the twentieth century.

The recent boom apparently resulted from a mid-twentieth century effort by
utilitarian reformers to establish the socially beneficial purposes
(deterrence, rehabilitation, and incapacitation) as the articulated purposes
of criminal punishment and to eliminate (or greatly reduce) the role played by
retribution, punishment's traditional moral purpose. The result was not simply
the codification of utilitarian purposes in criminal law, but also a
corresponding effort by retributionists to restore the old purpose of just
deserts and make that an explicit part of law. The conflict led to a general
burgeoning of articulating purposes, and a field test of how the articulation
of purposes affects the administration of the criminal law. The extent to
which utilitarian purposes were embodied in law suggests that this period
represented the greatest success achieved by utilitarians in affecting the
criminal law, and thus the greatest trial to date of the viability of
utilitarian purposes and, correspondingly, of the durability of retribution.

This Article examines state statutes and state constitutional provisions
specifying utilitarian purposes for punishment.(2) These examples demonstrate
that the articulation of primarily or exclusively utilitarian purposes in law
was invariably followed by the restoration of retribution as an essential
purpose of punishment. Remarkably, this restoration occurred not primarily
through traditional avenues of legal change, but rather through judicial
activism, violation of the doctrine of separation of powers, dismissal of
constitutional supremacy, transgression upon the principle of federalism, and
abandonment of the usual rules of statutory construction. The orderly
rule-bound processes generally attributed to law may be overestimated, as
critical legal scholars remind us,(3) but the ways in which purposes for
criminal law have been articulated reflect a particularly conspicuous
departure from method. In the effort to ensure the presence and primacy of
retribution, courts and legislatures revealed themselves to be ready and
willing to subvert any principle or doctrine, however sacred in other
contexts, that stood in the way.

The repeated resort to unorthodox measures to accomplish the restoration of
retribution suggests the intensity of its support, which would not tolerate
the inconvenience of the intervening rule of law. The consistency with which
utilitarian purposes proved "unsatisfactory" and led to the restoration of
retribution indicates the centrality of retribution and the marginality of
utilitarian purposes in the American criminal justice system. Utilitarian
reform efforts in the latter half of the twentieth century were apparently too
meager to alter such a basic element of American criminal justice.

Even at the height of utilitarian influence on criminal law, the role that
articulated utilitarian purposes might have played was largely thwarted, so
the full extent of that potential role remains somewhat hypothetical. If one
believes that any effects that articulated utilitarian purposes could have had
in any event were modest, the fact that courts and legislatures were so
determined to subvert the rule of law in order to repudiate utilitarian
purposes and interpolate retributive ones is all the more striking and
suggestive of the importance that participants in the system attached to
identifying the system as retributive. If one believes that the effects that
the articulated purposes could have had were more substantial, then the frank
indifference by courts and legislatures to the rule of law becomes more
disturbing, although similarly indicative of the indispensability of
retributive purposes to the participants in the system.

A. The Usually Articulated Purposes, the Relationships Among Them, and Why
Purposes Matter

Four purposes are usually ascribed to criminal punishment: retribution,
deterrence, incapacitation, and rehabilitation. Scholarship on purposes is
complicated by some variations in terminology and concept, which are necessary
to appreciate in order to understand which purpose courts and legislatures,
often in shorthand, are endorsing.

Retribution supposes that crime inherently merits punishment.(4) Other terms
in which this idea is expressed include "just deserts," the use of the words
"punish" and "punishment" as ends rather than means, and "condemnation" or
"denunciation" of the criminal (sometimes called the "expressive" aspect of
retribution).(5) All these terms communicate the idea that punishment is
directed at imposing merited harm upon the criminal for his wrong, and not at
the achievement of social benefits. Retribution, as distinguished from
utilitarian purposes, is conceived as necessary even when social benefit will
not be achieved. It is this perspective that led Kant to say that "[e]ven if
civil society were to dissolve itself with the consent of all its members ...
the last murderer in prison would first have to be executed in order that each
should receive his deserts and that the people should not bear the guilt of a
capital crime through failing to insist on its punishment."(6)

On the other hand, the utilitarian purposes -- deterrence, rehabilitation, and
incapacitation -- are not concerned with inherent moral merits, but with
accomplishing social benefits through the use of punishment as a means.
According to John Stuart Mill, "[t]here are two ends which ... are sufficient
to justify punishment: the benefit of the offender himself and the protection
of others."(7)

Deterrence treats punishment as a tool of social control and protection,
employing its threat as a disincentive to dissuade potential criminals from
offending (general deterrence), or its experience to dissuade a particular
criminal from reoffending (specific deterrence). Deterrence is also sometimes
known as "prevention," on the theory that fear of punishment prevents people
from committing crimes. Most frequently, when the word "deterrence" is used,
general deterrence is meant.

Incapacitation uses imprisonment to remove the offender from society to
protect it from the danger he poses. This concept is also conveyed by the use
of the terms "isolation," "segregation," "restraint," and "confinement."
Incapacitation is also, like deterrence, occasionally called "prevention,"
although it arguably represents prevention in the narrower sense, just as
specific deterrence represents the narrower aspect of deterrence.

Rehabilitation calls for the improvement of the criminal for his own benefit
and to reduce the probability that he will offend again.(8) This theory of
punishment is also called "reform" or "correction." State custody may be used
as an opportunity to provide training for skills useful in the marketplace,
treatment for psychological problems and drug addiction, or even an
opportunity for penitent reflection.(9) Rehabilitation may also justify a
shortened sentence or diversion into nonincarcerative programs on the theory
that the criminal is more likely to improve outside of prison.

Although often cited in tandem, the purposes for punishment are nonetheless at
odds with one another. Rehabilitation is based on the idea of the criminal as
someone to be helped. Retribution, on the other hand, assumes that the
criminal should be hurt, and that the injury caused by the criminal offense
calls for a like infliction of injury on the criminal as a moral penalty.
Similarly, even if deterrence could be achieved as effectively through small
penalties as through large ones, retributionists would not accept small
penalties as sufficient desert for serious crimes. On the other hand,
particularly where the chance of detection is low, the penalty necessary to
accomplish deterrence for some crimes might involve lengths of imprisonment
that exceed those acceptable to retributionists. This tension between purposes
means that it is difficult to attain them simultaneously, and that in practice
preference must be given to some over others. In articulating purposes, courts
and legislatures sometimes merely endorse an undifferentiated list of these
four purposes, notwithstanding the tension between them. However, courts and
legislatures also have made distinctions and choices among purposes,
emphasizing some, excluding others.

These articulated purposes enter into the administration of criminal law in a
number of ways. For example, judges sentence according to the purposes
authorized by law.(10) Where jurors determine sentence, they may be instructed
by the court and exhorted in closing arguments by attorneys to consider
particular purposes in making their decision.(11) In voir dire, attorneys may
employ the state's articulated purposes for punishment as a means of screening
and influencing jurors.(12) A defendant might challenge a particular
punishment for failing to comport with the purposes articulated in a state
constitutional provision.(13) The articulated purposes thus affect jury
selection, instructions, and arguments; sentencing and parole; and even
assessment of the legitimacy of particular punishments. Whether articulated or
not, purposes are and have always been an integral part of the criminal
law.(14) However, once purposes are articulated in law, they become a more
consistent, effectual, and traceable feature in the actual operation of law.

Theoretically, utilitarian purposes make case dispositions more oriented
toward opportunities for rehabilitation, relatively lesser sentences in those
cases where deterrence is particularly unlikely to be achieved (so-called
"crimes of passion"), relatively greater sentences where deterrence is
particularly likely to be effective (so-called "white collar crimes"), longer
terms of incapacitation for dangerous and likely-to-be-repeated violent crimes
(such as aggravated sex crimes), and shorter terms for less socially harmful
crimes (such as drug possession).(15) Emphasis on retribution, on the other
hand, calls for little concern for rehabilitation opportunities, harsher
punishments for crimes of passion than for white collar crimes, and greater
concern for the categorical immorality of particular acts than for their
social costs. Whether utilitarian or retributive purposes apply pushes
sentences toward one end or the other of the available sentencing range, and
toward imprisonment or toward alternatives. In addition, the articulated
purposes also provide some insight into the governmental commitment to
particular purposes, and a sense of what truly motivates criminal punishment.

II. THE MODEL PENAL CODE AND STATE STATUTORY STATEMENTS OF PURPOSE

The adoption of statutory statements of purposes was the product of a
nationwide revision of state criminal law prompted by the Model Penal Code.
The American Law Institute's Model Penal Code (MPC) was drafted and
disseminated between 1954 and 1962 by a group of legal scholars for use by the
states in rectifying what was seen as a widespread problem of piecemeal and
inconsistent state penal codes.(16) The MPC was subsequently adopted, with
modifications, in the majority of the states.(17) Prior to the MPC, few if any
states articulated purposes for their penal codes or sentencing,(18) except
for a handful of nineteenth-century constitutional provisions (discussed in
Part III below). After the Model Penal Code was disseminated, however, about
half of the states adopted a statutory statement of purposes based on,
inspired by, or provoked by that in the MPC.(19) No state adopted the MPC's
particular wording on purposes, but about a dozen of those that did adopt some
statement of purposes adopted one reflecting the utilitarian, nonretributive
perspective of the MPC, specifying the purposes of punishment as deterrence,
rehabilitation, and incapacitation, and omitting retribution. Thus, for the
first time, many states had as part of their penal codes an explicit statute
on purposes for punishment, and many of those statements were utilitarian and
nonretributive. As it turned out, however, this utilitarian bent was
short-lived and superficial, and inspired a subsequent ringing reaffirmation
of retribution, generally through judicial "amendment" of the statutory
statements of purposes.

A. The Utilitarian Mode of the Model Penal Code

The Model Penal Code relies upon a utilitarian understanding of the purposes
for the criminal law, but revisionism has been such that it is now actually
necessary to make the case for the idea that the MPC did in fact reject
retribution as a purpose for punishment. There is the separate; question
whether the MPC truly managed to divest itself of retributive elements,(20)
but it should at least be clear, as increasingly it is not in scholarly
commentary on the Code, that it did not include retribution as a purpose and
its provisions were not written with the intent of recognizing retribution as
a legitimate goal.

MPC [sections] 1.02 articulated the particular purposes for the Model Code and
its sentencing provisions. This statement of purposes omitted retribution and
articulated only utilitarian purposes: prevention (deterrence and
incapacitation) and rehabilitation.(21) The original Comment to [subsections]
1.02 explained that "[t]his section is drafted in the view that sentencing and
treatment policy should serve the end of crime prevention. It does not
undertake, however, to state a fixed priority among the means to such
prevention, i.e., the deterrence of potential criminals and the incapacitation
and correction of the individual offender."(22) The goal of sentencing and
treatment, according to this Comment, is the utilitarian one of crime
prevention. The purposes specified in the Comment, like those specified in the
model statute, include deterrence, incapacitation, and correction. Herbert
Wechsler, Chief Reporter for the Model Penal Code and the person who had the
best claim to being its architect, explained the "underlying theory of the
draft" shortly before its release: "Deterrence (both general and special),
incapacitation, and correction are all possible objectives in dealing with
offenders; all are means to crime prevention and as such are entitled to be
weighed."(23) Paul Tappan, one of the Associate Reporters, who played a
central role in the drafting of the provisions pertaining to the Sentencing
and Treatment of Offenders, similarly remarked, "Put summarily, the provisions
relating to sentencing and treatment are predicated on the assumption that the
law should endeavor to protect society as fully as may reasonably be possible,
both by measures of general and individual prevention and by the
rehabilitation of offenders."(24) The purposes section, Comment, and
explanation by the responsible reporters all enumerate the MPC's purposes as
deterrence (general and specific), incapacitation, and rehabilitation, and
make no mention of retribution. Under a customary canon of statutory
interpretation, retribution is perforce excluded.(25)

Nonetheless, scholars and commentators occasionally assume or conclude that
the Code promotes all four of the usual purposes for punishment: deterrence,
rehabilitation, incapacitation, and retribution. For example, Professor Marc
Miller has written that "for some time there has been general agreement on the
relevance of a relatively small set of sentencing purposes. The same basic
list of purposes identified in the [federal] Sentencing Reform Act was
included in the Model Penal Code...," citing to [sections] 1.02.(26) However,
the federal act explicitly includes a purpose of retribution,(27) while the
Model Penal Code statement of purposes does not. Similarly, Professor Paul H.
Robinson has said that the MPC's "list of purposes includes all four of the
traditional purposes of criminal liability and punishment ... [including] to
impose just punishment deserved for the offense."(28) However, no mention is
made of just punishment or desert in the Code's list of purposes.

Section 7.01, which addresses the criteria for imprisonment, is another
section that has been incorrectly described as endorsing retribution. This
section gives three criteria for imposing imprisonment rather than probation,
the third being that "a lesser sentence will depreciate the seriousness of the
defendant's crime."(29) This criterion has been taken by Professor Andrew von
Hirsch as indicating a purpose of retribution.(30) However, this provision
instead calls for deterrence. Section 7.01 reads, in relevant part:

(1) The Court shall deal with a person who has been convicted of a crime
without imposing sentence of imprisonment unless ... it is of the opinion that
his imprisonment is necessary for protection of the public because:

(a) there is undue risk that during the period of a suspended sentence or
probation the defendant will commit another crime; or

(b) the defendant is in need of correctional treatment that can be provided
most effectively by his commitment to an institution; or

(c) a lesser sentence will depreciate the seriousness of the defendant's
crime.(31)

It is noteworthy that these three criteria are all part of a clause that
establishes them as "necessary for the protection of the public." Protection
of the public is not a retributive but a utilitarian concern.(32) Wechsler
himself at the time explained the third criterion in terms of deterrence,
remarking that "the least that is demanded is that the disposition be so cast
that it does not depreciate the gravity of the offense, whatever that may be,
and thus imply a license to commit it."(33) The intention was to avoid
conveying the message, inimical to deterrence, that the offense was not taken
seriously. Additionally, the 1985 Explanatory Note for this section states,
"The three factors represent an incapacitative rationale for a sentence of
imprisonment, a rehabilitative rationale, and a deterrent rationale."(34)
Sections (a), (b), and (c) of [sections] 7.01(1) essentially track the
nonretributive purposes set forth in [sections] 1.02;(35) [sections]
7.01(1)(c) does not add a retributive purpose that is somehow not accounted
for in [sections] 1.02. This section, therefore, cannot serve as the basis for
the conclusion that the Model Penal Code includes retribution as a purpose of
punishment.

Part of the reason that the Model Penal Code may now be seen as retributive by
some is that the revised Comments to the 1985 edition began to equivocate on
the statement of purposes. The new Introduction to Articles 6 and 7, by
Professor Sanford Fox, maintained that the Code's "approach to sentencing is
basically utilitarian or consequentialist; the justification for penal
sanctions is perceived to be the prevention of social harm."(36) Although this
sentence, if read quickly, sounds like no real modification of the Code's
original view, in fact the word "basically" is a tip-off that the
straightforward original view is about to be watered down. The new
Introduction to Articles 6 and 7 further observed that the Code's statement of
purposes for punishment "is designed to exclude punishment imposed without
regard to the demands of crime prevention, leaving no room for dispositions
motivated merely by vindictive or retributive considerations."(37) It is quite
possible to read the inflexible "leaving no room" in that sentence without
really noticing the leavening effect of the word "merely." Along the same
lines, the new Introduction added that "[t]he Model Penal Code is based on the
premise that `desert' alone is not a sufficient justification for
punishment."(38) The MPC statement of purposes excludes retribution, and even
the new Introduction criticizes it, but the new Introduction also treats
retribution as if it were a given and a self-evident part of law, albeit one
in which "alone" or "merely" is not enough to justify punishment. Although
Professor Wechsler supervised the revised Comments, it is difficult to see
them as more than a sop to the retributionists who had successfully seized the
agenda. Wechsler himself was clearly not pleased by the development; around
the time that the 1985 edition was being; prepared, he also complained in an
article about "the resurgence of retributive emotions clothed in philosophical
pretensions."(39)

The new Introduction to Articles 6 and 7 to the MPC did not affect the
language of the draft statutory statement of purposes itself. However, it is
difficult to know what to make of that model statute now (to which courts
continue to resort for assistance in interpreting their own MPC-inspired
provisions). No mention is made of retribution or retributive purposes in the
plain language of the Model statute itself. Canons of statutory construction
also ought to make the 1985 Introduction's assumption that retribution is
implicitly included, a conclusion reached thirty years after the Code was
drafted and disseminated, irrelevant.(40) This equivocation, however,
threatens the nonretributive bearing of the Code; even those who have received
the torch from the Model Penal Code drafters have engaged in revisionism,
attempting to amend the Code through post hoc comment to include retribution.

Of course, most scholars do not mistake the Code as incorporating retributive
goals, even now. Professor George Fletcher has observed that "[t]he drafters
of the Model Penal Code would not readily concede that the Code incorporates
theories of guilt and of deserved punishment."(41) Professor Norval Morris
similarly has noted that the Code "specifically rejects as a valid reason for
imprisonment that the person 'deserves' punishment for the bad deed
committed."(42) However, the resurgence of retribution as a purpose for
punishment leaves the Model Penal Code in an awkward position: it is at once
the basis for the majority of the penal codes in the United States, and
founded on a concept of the purposes for punishment that has been steadily
eroding since announced. Its supporters must either acknowledge its
obsolescence, at least in this one regard, or pretend that it was actually,
between the lines somewhere, about retribution all along.

The states that adopted statutory statements of purpose based on the
nonretributive concept put forth by the MPC were, however, even less able than
the MPC to withstand the forces of revisionism.

B. Nonretributive Statements of Purpose Based on the Model Penal Code

About a dozen states adopted nonretributive or apparently nonretributive
statutory statements of purpose evidently inspired by the MPC's [sections]
1.02. These states did not, however, adopt the particular wording of
[sections] 1.02. The majority adopted the clearly nonretributive "Minnesota
formulation." A few others adopted the "Illinois formulation" which appears to
be nonretributive (although containing greater ambiguity than the Minnesota
formulation). One state, Pennsylvania, did not adopt a statutory statement of
purposes like MPC [sections] 1.02, but did adopt a provision inspired by MPC
[sections] 7.01, which also contains utilitarian, nonretributive purposes.

Such statutory statements of purpose conceptually resemble the rules that
determine whether statutes are to be construed strictly, liberally, or
according to their "fair import."(43) In the case of many state penal codes
(as is the case with the MPC), statements of purpose are often found
side-by-side with statutory provisions concerning proper construction.(44)
Both types of rules establish the framework within which other relevant law is
to be interpreted.(45) Statutory directives on proper construction ought, if
anything, to have a more limited application than those pertaining to
purposes, because questions of construction only arise where coverage is in
dispute, where one party thinks the terms ought not include him and the other
party disagrees. Statutory directives on purposes, on the other hand,
theoretically provide guidance to the court on matters that arise much more
frequently, including voir dire questions, jury instructions and argument, and
sentencing and parole, all occasions on which the question of purposes may
arise.

In virtually every state, the courts effectively amended these MPC-inspired
statutory statements of purposes to insert retribution. This violation of the
separation of powers doctrine(46) was accomplished sometimes by irregular
feats of statutory construction and sometimes by employing the joint opinion
of three U.S. Supreme Court justices in Gregg v. Georgia(47) as if it had
binding precedential effect on the matter of state purposes in punishment -- a
case of federalism turned on its head. In other cases, the courts simply
ignored the contrary state statute in finding that retribution was a state
purpose. The main effect of the articulated utilitarian purposes for
punishment adopted by some state legislatures, under the influence of the
Model Penal Code, was to catalyze courts into unorthodox restoration of
retribution.

1. The Minnesota Formulation: Deterrence, Rehabilitation, and Confinement

Colorado (1963), Texas (1973), Ohio (1973), Delaware (1973), Florida (1974),
Maine (1976), and Alabama (1977) adopted provisions that essentially follow
the Minnesota (1963) formulation that the purpose of punishment was "[t]o
protect the public safety and welfare by preventing the commission of crime
through the deterring effect of the sentences authorized, the rehabilitation
of those convicted, and their confinement when the public safety and interest
requires."(48) This provision did not track the wording of MPC [sections]
1.02, but it did reflect the same purposes, i.e., deterrence, rehabilitation,
and incapacitation, but not retribution. The Minnesota formulation makes its
utilitarian mode clear, in addition, by its use of the wording "to protect the
public safety and welfare by" prevention of crime through the achievement of
these purposes. All of the states that followed this nonretributive formula
nonetheless acquired retribution as a state purpose, primarily through
judicial activism.

Despite Minnesota's 1963 utilitarian, nonretributive statutory statement of
purpose, its state supreme court found in 1978 that retribution was among the
state purposes for punishment.(49) The court even appeared to countenance
defiance toward the statute in a case where a parole candidate claimed
insufficient consideration had been given to the purpose of rehabilitation.
The court affirmed and quoted, without disapproving, the opinion of the court
below which had observed that:
[m]any considerations are embodied in a prison sentence, not the least of
which are punishment, example or deterrence, and protection of the public,
as well as the rehabilitation concept. This court takes the view that in
its ruling in the case at bar the Corrections Board merely rediscovered
these long overlooked considerations and, hopefully, reestablished them
with a higher priority than has been their lot in recent years.(50)

The inclusion of retribution ("punishment") does not amount to a rediscovery
of "long overlooked considerations," but the act of reading in the purpose of
retribution where it has been excluded from the statute.(51) By making
retribution a consideration where the statute had omitted it, thereby
effectively reducing and counterbalancing the role played by rehabilitation,
the court blatantly contravened state law.

Texas passed a 1973 statutory statement of purposes that adopted the Minnesota
formulation except that the third clause was replaced by one calling for
specific deterrence.(52) Although retribution was excluded from the statute,
that did not dissuade the Texas criminal court of appeals from concluding a
few years later in a capital case that it was a state purpose, on the basis
that "[i]n Gregg [v. Georgia], the Supreme Court recognized retribution as one
of the underlying purposes of the death penalty."(53) The Texas court's
description of Gregg simultaneously exaggerates the tenor, scope, and
significance of the three-justice opinion. Also, Texas courts on other
occasions read the penal code's statement of purposes as including
retribution, without specific reliance upon Gregg.(54) Interestingly, the
purposes of punishment have been a hotbed of dispute in voit dire in Texas,
with prosecutors employing (successfully) a strategy of peremptorily striking
venire-persons who believe rehabilitation to be the primary purpose of
punishment or among the purposes for punishment.(55) Jurors who believe that
retribution is the main purpose of punishment or who cannot consider
rehabilitation as a purpose -- notwithstanding the state statute on purposes
-- are fully qualified to sit on a Texas jury.(56)

A Texas case shows the sleight of hand by which a nonretributive statute can
become retributive. The Texas statute gives the purposes of punishment as
follows:

(1) To ensure the public safety through:

(A) the deterrent effect of the penalties hereinafter provided;

(B) the rehabilitation of those convicted of violations of this code; and

(C) such punishment as may be necessary to prevent likely recurrence of
criminal behavior.(57)

These provisions call for general deterrence (A), rehabilitation (B), and
specific deterrence (C). All three provisions are identifiable as utilitarian
not only in their particular wording, but also in the prefacing provision that
identifies them as means of "ensur[ing] the public safety." However, a Texas
appellate court found that the purposes of punishment in Texas were
deterrence, rehabilitation, and punishment, and did so by italicizing the
words in the statute as follows:

(1) To ensure the public safety through:

(A) the deterrent influences of the penalties hereinafter provided;

(B) the rehabilitation of those convicted of violations of this code; and

(C) such punishment as may be necessary to prevent likely recurrence of
criminal behavior.(58)

The fact that the word "punishment" may be a synonym for retributive
punishment is disingenuously if not cynically exploited here as a means of
installing retribution as one of the state purposes.

In 1976, Maine adopted a formulation similar to the Minnesota nonretributive
statement of purposes.(59) However, in a 1978 case, the Maine Supreme Court
gave as one of the several factors that may be considered in sentencing "the
interest of the public in retribution and deterrence."(60) It did not explain
how it derived this "factor," but merely stated, "It is generally recognized
that a trial court in imposing sentence should take into consideration the
following factors,"(61) as if the statute specifying the purposes of
punishment did not exist. However, two years later the Maine Supreme Court
interpreted this 1978 case as "carry[ing] out the purposes of punishment set
forth in the Maine Criminal Code" and cited to the statutory statement of
purposes.(62) What appears to have happened is that the Maine Supreme Court
invented its own list of factors in 1978, ignoring the statute, and then in
1980 redescribed the list of factors as implementing the statute. The fact
that the statute omits reference to retribution, while the state court's list
included it, went unremarked.

Maine did have an additional subsection calling for "sentences that do not
diminish the gravity of offenses,"(63) which could be interpreted as
retributive if "gravity" is understood as referring to the extent of harm
caused rather than the seriousness of the offense for deterrence purposes.(64)
It is likely, however, that this provision tracks the MPC's [sections]
7.01(c), which calls for imprisonment where "a lesser sentence will depreciate
the seriousness of the defendant's crime," an intended deterrent
provision.(65) Moreover, this subsection seemed expressly excluded as the
basis for the court's conclusion that the Maine statute was retributive. In a
1989 case, the court concluded that a particular sentence "serv[ed] the
purposes of [the statute], including the need for punishment, deterrence,
restraint, and a sentence that does not diminish the gravity of the
crime...."(66) The court's separate reference to the "gravity of offenses"
provision and retribution in this list suggests that it did not find
retribution embodied in the words "gravity of offense." Recently, however, the
state supreme court did analyze the "gravity of offenses" provision as being
retributive.(67)

Alabama's adoption of a nonretributive statement of purpose in 1977(68) was
paradoxically followed by a flowering of retribution. In the same year as the
adoption of its utilitarian statute, its supreme court observed in a death
penalty case that "life must be forfeited as retribution for, and in
deterrence of, the wanton, brutish taking of the life of another."(69) An
Alabama court of appeals subsequently cited Gregg v. Georgia(70) for the
proposition that while rehabilitation was a desirable goal, "retribution is
equally permissible"(71)--although what is constitutionally permissible is not
the same thing as what is state law. Confusingly, the court also cited the
nonretributive state statute at the same time, which is indicative of its
assumption that the statute contained retributive purposes.(72) In spite of
the nonretributive state statute, prosecutors made arguments to juries that
retribution was a purpose of punishment, and the criminal appellate courts
concurred.(73) Similarly, the criminal appellate courts assumed that
retribution was part and parcel of the penal code. For example, the court of
criminal appeals observed that a felony statute had "a rational basis relating
to a legitimate governmental interest, i.e., retribution for serious crimes in
addition to having the deterrent effect...."(74) The Alabama statement of
purpose was not ignored--it was cited--but its exclusion of retribution was
countermanded by the state courts through judicial interpolation.

The other states with nonretributive statutory statements of purposes followed
the same trend as Minnesota, Texas, Maine, and Alabama. Colorado courts
initially accepted the idea that retribution was not among state purposes for
punishment(75) as indicated in the state's nonretributive statutory statement
of purposes,(76) but Colorado's highest court soon named retribution as one of
the purposes of punishment even when citing to the statute.(77) The
legislature later adopted an explicitly retributive provision.(78) Ohio
concluded that retribution was among its purposes for punishment without
interpreting its arguably nonretributive state statute, finding Gregg
dispositive.(79) Delaware's courts, when faced with a nonretributive statutory
statement of purposes and a sentencing act with potentially contradictory
purposes, did not attempt to reconcile or even interpret the provisions,
instead concluding without reference to either that retribution was among
state purposes.(80) In Florida, the courts paid little attention to the
nonretributive statutory purposes and, indeed, were nearly silent on the
question of purposes until the state later adopted a clearly retributive
sentencing provision, which, perhaps being more congenial, was thereafter
employed by its courts. The statutory statement of purposes was not
amended.(81)

2. The Illinois "Proportionate to Seriousness" Provision

Georgia (1968), Oregon (1971), and Washington (1981) adopted statutory
statements of purposes that followed an Illinois (1962) provision that
included as a purpose for punishment to "[p]rescribe penalties which are
proportionate to the seriousness of offenses and which permit recognition of
differences in rehabilitation possibilities among individual
offenders...."(82) In spite of the fact that this provision was probably
intended to be nonretributive, courts in all of these states, with the
exception of Oregon, identified retribution as a state purpose.

Evidence suggests that the Illinois statute was a Model Penal Code-inspired
formula that was meant to be utilitarian and nonretributive. The part of the
Illinois formula calling for "penalties which are proportionate to seriousness
of offense"(83) resembles the MPC provision calling for sentences that are not
"disproportionate" and that do not "depreciate the seriousness of the
crime."(84) The MPC is more clearly utilitarian, in that it further specifies
that such imprisonment be necessary for the "protection of the public," but
the Illinois statute's references to proportionality and seriousness are
shared with the MPC. The Illinois formula also includes a clause that calls
for penalties that "permit recognition of differences in rehabilitation
possibilities among individual offenders."(85) This provision resembles the
MPC provision calling for sentencing and treatment to "differentiate among
offenders with a view to a just individualization in their treatment."(86)
Both the MPC and Illinois provisions employ the idea that appropriate
rehabilitation calls for consideration of the particular, characteristics of
the individual offender. In short, all the terms of the Illinois statute echo
terms in the MPC, and no evidence indicates an intent to depart from the
nonretributive tenor of the MPC.

The Committee Comments further indicate that the Illinois law is "similar in
nature" to the MPC [sections] 1.02 statement of purpose.(87) The Committee
also remarked that the "[t]he object of this section is to collect certain of
the generally recognized purposes of the substantive criminal law," and echoed
the comment in the MPC in remarking that "[a]ttention is directed to the
preventive and rehabilitative considerations, without placing undue emphasis
upon any one purpose."(88) From the timing, the internal resemblance, and
these comments, it would seem that the Illinois law is intended to be
utilitarian and nonretributive. This statute was joined in 1970 by a state
constitutional provision with similar wording, stating that "[a]ll penalties
shall be determined both according to the seriousness of the offense and with
the objective of restoring the offender to useful citizenship."(89)
Notwithstanding the apparent derivation of the statute and its companion
constitutional provision, the Illinois appellate courts have interpreted state
purposes as requiring the "balancing of the retributive and rehabilitative
purposes of punishment."(90)

Georgia's 1998 statement of purposes(91) closely follows the Illinois
formulation and, thus, might also be understood as an attempt to follow the
utilitarian and nonretributive mode of the MPC, especially since Georgia
adopted its law so soon after Illinois and in the absence of any published
appellate cases interpreting Illinois law as retributive. However, Georgia
courts also found retribution to be among Georgia's purposes for punishment,
but by following a different path. The statutory provision was never actually
subjected to interpretation.(92) Instead, the Georgia Supreme Court identified
retribution as a purpose of punishment, citing the joint opinion in Gregg. In
considering whether certain allegedly inflammatory evidence was admissible in
a case, the state high court noted that "Justice Stewart's discussion of
retribution is particularly important, because it is clearly supported by a
majority of the Supreme Court and because it demonstrates that an emotional
response to properly admitted evidence regarding the defendant and his crime
is not intrinsically unacceptable in death penalty cases...."(93) This
description is a mischaracterization of Gregg;(94) but, in any event, the
Georgia Supreme Court treated Gregg as if it were dispositive on state
purposes. Along the same lines, the Georgia Supreme Court repeatedly found
that prosecution arguments to juries calling for retribution were proper.(95)
The court even observed in one case that the prosecutor's reading of an
"excerpt from Gregg was merely a concise statement concerning the validity of
retribution as a policy consideration in imposing the death penalty."(96)
Thus, the U.S. Supreme Court decision in Gregg had, in the Georgia Supreme
Court's view, made it unnecessary to interpret its own state law, which
appeared to be nonretributive.

Washington's statement of purposes, also based on the Illinois formulation,
was treated by the courts, without explanation, as retributive.(97) On the
other hand, Oregon also used the Illinois formulation, and its courts
maintained that state purposes were indeed nonretributive, but the state also
had a nonretributive state constitutional provision that drove the courts'
interpretation and the potentially contrary state statute was not
discussed.(98) (Oregon eventually amended its constitution to include
retribution).(99)

3. The Odd Case of Pennsylvania: Nonretributive Criteria for Incarceration

Pennsylvania's 1973 statement of purposes for its penal code did not specify
substantive, purposes to be achieved by punishment.(100) However, the
legislature did adopt a provision based on the: MPC's [sections] 7.01, which
specified the considerations that governed the choice between imprisonment and
nonincarcerative punishment, and articulated deterrent, rehabilitative, and
incapacitative (but not retributive) criteria.(101) Thus, although the
legislature did not adopt a statement of purposes as such, the criteria
specified in the latter statute were explicitly utilitarian. Accordingly, at
least when looking at the particular question whether to impose imprisonment
or some other penalty, the courts in Pennsylvania were supposed to be using
utilitarian, nonretributive criteria.

This statute actually led an appellate court in Pennsylvania to conclude in
1980 that retribution was not a state purpose for punishment and to reverse a
sentence of imprisonment that had been based on retribution. The case involved
a woman who was sentenced to six to twenty-three months for assaulting a
police officer.(102) The woman was a college student with no prior criminal
arrests(103) who had attacked the police officer when he hit her boyfriend
(who had himself attacked the police officer after a routine traffic
stop).(104) The trial court concluded that the woman was not a hardened
criminal and did not need rehabilitation, but sentenced her to imprisonment
anyway on the ground of retribution, remarking that "the weight of justice
demands retribution, and therefore, I impose the following sentence...."(105)
The appellate court observed that the trial judge had admitted that
retribution was "not part of the statutory criteria for sentencing," but that
he had "nevertheless sentenced appellant based upon his own belief of the
value of retribution," leading the appellate court to "hold that the sentence
as imposed is invalid."(106)

However, also in 1980, another Pennsylvania appellate court in affirming a
sentence concluded that retribution was among the purposes of punishment in
Pennsylvania.(107) In support, the court said that "the Pennsylvania Supreme
Court held that a trial court may sentence defendant within the limits of
punishment permitted under the offense for which he has been convicted to be
determined by judging society's needs for retribution and the defendant's
needs for rehabilitation."(108) The supporting citation, however, gave no jump
cite that would identify where in the state supreme court case retribution had
supposedly been identified as among the purposes for punishment. The cited
decision itself sent a case back for resentencing on the ground that the trial
judge had given no rationale for the sentence. The opinion did quote legal
scholars on the idea that courts should give reasons for their sentencing, and
one of the quoted passages incidentally mentioned retribution, among other
purposes.(109) However, the state supreme court did not explicitly or even
implicitly endorse the quotations as embodying particular sentencing purposes
in Pennsylvania. Thus, it appears that the appellate court either misread or
misstated judicial precedent, while ignoring the countervailing nonretributive
state statute.

Perhaps the "conflict" among these appellate decisions helped motivate the
Pennsylvania legislature to adopt explicit sentencing guidelines in 1982.
Those guidelines specified retribution as the primary purpose behind
punishment.(110)

4. The Impact of State Statutory Statements of Purposes

A dozen state legislatures, evidently responding to the MPC's nonretributive
statutory statement of purposes, made decisions about what purposes its courts
were to employ in interpreting and implementing state criminal law and made
those chosen purposes part of state statutory law. In virtually every case,
however, state courts acted to undermine or change state law on purposes,
disrespecting the separation of powers, venerable rules of statutory
construction, and the state autonomy protected by federalism, in order to read
in retribution.

III. STATE CONSTITUTIONAL PROVISIONS ON PURPOSES

Even before the Model Penal Code raised the question of state statutory
purposes, five states had adopted state constitutional provisions that both
articulated utilitarian purposes for punishment and omitted or prohibited
retribution.(111) More far-reaching in effect than state statutory purposes,
which guide interpretation, state constitutional provisions establish limits
upon what the state may do. Such provisions also supersede state, statutes,
which are invalid where they conflict with the state constitution.(112)
Accordingly, constitutional amendment requires more than the achievement of
legislative majority necessary to pass a statute.(113) According to standard
legal doctrine, these nonretributive state constitutional provisions ought to
have been afforded deference and given effect.(114)

Although these state constitutional provisions were adopted primarily in the
nineteenth century,(115) for the most part courts have only recently begun to
interpret them. Indeed, the focus on purposes in the latter part of the
twentieth century probably brought these provisions unprecedented attention.
That attention provoked judicial activism that focused on introducing
retribution into state purposes for punishment. State legislatures also
participated in the evisceration of state constitutional law, by enacting
statutory statements of purposes at odds with the constitutional provisions.

A. Indiana and Oregon

In 1851, Indiana adopted a constitutional provision specifying that the
state's criminal law "shall be founded on the principles of reformation, and
not of vindictive justice."(116) Not long after, a defendant challenged the
state's capital punishment law on the ground that it did not comport with this
constitutional provision. The Indiana Supreme Court rejected the challenge,
saying, "[t]he punishment of death for murder in the first degree, is not, in
our opinion, vindictive, but is evenhanded justice. There is, indeed, nothing
vindictive in our penal laws. The main object of all punishment is the
protection of society."(117) The court addressed part of the constitutional
provision when it asserted that the law was not based on "vindictive justice,"
but it did not undertake to explain how the capital punishment law can be said
to be "founded on the principles of reformation." Further, the court here
defied the state constitution in holding that the main object of punishment is
the protection of society, when the constitutional provision calls for
punishment to be founded on reformation.(118) This challenge under the Indiana
state constitution was a rare contemporaneous effort to make nonretributive
state constitutional provisions effective, but the effort was nonetheless
rebuffed.

In the latter part of the twentieth century, defendants in Indiana made
repeated attempts to give force to this constitutional provision. In a 1982
case, for example, a defendant challenged the constitutionality of his death
sentence. The state supreme court explained the inapplicability of the
constitutional provision somewhat differently than in 1855, describing it as
"an admonition" to the legislature that "applies to the penal laws as a system
to insure that these laws are framed upon the theory of reformation as well as
the protection of society."(119) "[T]he protection of society"--carried over
from the court's opinion in the 1855 case--was again added by the court to
counterbalance and dilute the principle set forth in the state constitution.
The court's further conclusion that the constitutional provision (only)
functions as an "admonition" to the legislature does not seem persuasive. Even
if the constitutional provision was meant to be an admonition (i.e., not
self-executing), that presumably would not constrain the court's ability and
duty to pass on the achievement by the legislature of the constitutional
directive.(120) The death penalty is not founded on the principles of
reformation; the legislature does not seem to have heard the constitution's
admonition.

The Indiana Supreme Court did subsequently show more respect for the
constitutional provision in overturning a sentence in a case in which the
trial court had not given consideration to rehabilitation during a sentencing
determination.(121) The case involved the sentencing of a defendant, who had
no prior criminal record and long, exemplary service as a fireman, to 104
years for rape, robbery, and other felonies associated with a single appalling
criminal transaction.(122) Although simultaneously concluding that the
sentencing had not violated the constitutional provision, the state supreme
court also spoke of the provision as reflecting "an underlying concern in our
State Bill of Rights that, notwithstanding society's valid concern with
protecting itself and providing retribution for serious crimes, the state
criminal justice system must afford an opportunity for rehabilitation where
reasonably possible."(123) This statement would seem to belie the previous
conclusion that the provision could not be enforced by defendants because it
was a directive to the legislature. The provision, given such a force, would
have an effect on sentencing: each sentencing decision would require the
assessment of the defendant's potential for rehabilitation and wherever such
rehabilitation was reasonably possible, sentencing would be expected to
accommodate it. The sentence imposed in the case was found unreasonable
because it did not afford such opportunity.(124) However, in the same case,
the court also endorsed the idea that retribution was one of the state
purposes for punishing, notwithstanding its omission from the constitutional
provision.(125)

Perhaps emboldened by this partial gain, defendants in Indiana continued to
bring similar challenges. In 1991, the state supreme court was asked to
reverse a conviction on the ground that the trial court had declined to give a
jury instruction based on the constitutional provision. The state supreme
court responded: "Appellant's tendered instruction and claim that Indiana's
constitution contains a prohibition against verdicts being based upon
punishment is simply not a correct statement of the law."(126) The next year,
however, examining a similar request for an instruction based on the
constitutional provision, the court backtracked slightly remarking that
"[a]lthough the instruction [requested by appellant] is a correct statement of
the law, the provision seems to be addressed to lawmaking bodies and would
likely mislead or confuse a jury."(127) Thus, the court returned to the idea
that this provision in the bill of rights was an admonition only to the
legislature. After another such case reached the state supreme court, it
responded:
Defendant contends that while, as a matter of federal constitutional law,
retribution is a proper justification for the death penalty [citing Gregg],
it is an impermissible justification in Indiana because our constitution
provides that our "penal code shall be founded on principles of
reformation, and not vindictive justice." [citing state constitution] This
argument has been considered and rejected by our court, both shortly after
the enactment of our constitution and more recently. We reaffirm those
holdings.(128)

Defendants' attempts to give effect to the words of the state constitution
were, thus, repeatedly thwarted. As a result of stare decisis, the
nonretributive constitutional provision was rendered nonexistent, except as
some unpoliceable exhortation to the state legislature. As the result of
judicial activism, retribution was identified as a purpose of punishment in
Indiana, notwithstanding the apparently contrary constitutional provision.

Although Oregon's state constitution contained a provision with very similar
wording to that of Indiana,(129) its state courts did not conclude that the
provision was directed only to the legislature, thereby having no effect. In a
1978 case, a state appeals court observed that four purposes were generally
ascribed to punishment, but in a footnote remarked that "[t]he propriety of
objective (4) [retribution] is questionable in Oregon," and cited the state
constitutional provision in support.(130) In a 1979 case, a state appellate
court found a sentencing to be inappropriate on other grounds, but cited
Dinkel and suggested that the sentencing would have also been inappropriate on
constitutional grounds.(131) The case involved a defendant sentenced to one
year in jail and four years probation for assault in the second degree.(132)
In giving an explanation for the sentence, the trial judge stated: "I have to
give a reason for it. I am punishing you. That is the reason."(133) The
appellate court reviewing the sentence cited Dinkel and remarked, "[t]he
sentencing court here selected the fourth objective listed above [retribution]
as its `reason' for the particular sentence imposed. We believe that the
reasons required to be stated by the court are different from the general
objectives to be desired from the application of our criminal laws."(134) In
spite of this remark, the court found the sentence unlawful on another basis
and did not specifically pass on the constitutional question.(135)
Nonetheless, the appellate courts in Oregon indicated that the constitutional
provision had an effect on sentencing, that the effect was to prohibit
retribution as a sentencing consideration, and even proposed that a sentencing
might have been overturned on the basis of a constitutional violation, had it
not been overturned on other grounds.

Even in Oregon, the use of the constitutional provision was far from
wholehearted--the state supreme court had earlier questioned the provision
even while paying it some respect(136)--and the marginal status (mentioned
only in a footnote or as dictum) that it attained in all these cases suggests
judicial leeriness at the very least. Oregon, however, went much further than
Indiana and rejected the idea that the constitutional provision in its state
bill of rights was a mere wish whispered to the legislature that might be
ignored if inconvenient, and gave some sense of what might have happened had
state courts taken these constitutional provisions seriously.

In 1971, the Oregon state legislature passed a statutory statement of purposes
for its criminal law that did not, on its face, contradict the utilitarian
provision in the state constitution.(137) It employed the Illinois formulation
that, while probably originally nonretributive, had not lied other states
adopting that formulation to eschew retribution.(138) Dinkel and Grass did not
cite to this statute, employing the state constitutional provision instead.
Moreover, after Dinkel and Grass, use of the constitutional provision also
became rare.(139) In 1996, the legislature proposed a constitutional
amendment, approved by referendum, that added retribution to the state
constitutional provision.(140)

B. Wyoming and Montana

In 1890, Wyoming and Montana adopted constitutional provisions that stated
that the criminal law was to be framed or founded upon the principles of
prevention and reformation, using language quite similar to that later
employed in MPC [sections] 1.02.(141) The only generally enunciated purpose
for punishment missing from these provisions is retribution, and it would be
consistent with ordinary statutory interpretation to conclude that retribution
was intentionally omitted.(142) Such a reading is enhanced by the wording
contained in the Wyoming provision that the penal code is to be framed upon
the "humane" principles of reformation and prevention, the implication being
that retribution is inhumane and accordingly rejected.(143) Nonetheless, in
both Wyoming(144) and Montana,(145) courts and legislatures determined that
notwithstanding its absence from the state constitutional provisions,
retribution was one of the state purposes of punishment.

C. Alaska

The case of Alaska is subtle, but interesting for the account it provides of
the contortions that courts and legislatures go through to find retribution as
a state purpose. An Alaska constitutional provision adopted at the time of
statehood in 1959 declared that "penal administration shall be based on the
principle of reformation and upon the need for protecting the public."(146)
The Alaska Constitution thus appeared to give rehabilitation a central role,
included other utilitarian purposes that protected the public (presumably
deterrence and incapacitation), and omitted (ruled out) retribution. By 1970,
Alaska's highest court nonetheless found a way to read the state
constitutional provision as endorsing something that sounded like retribution.
It found that the words of the constitution implicitly included a concept of
"community condemnation of the individual offender, or in other words,
reaffirmation of societal norms for the purpose of maintaining respect for the
norms themselves."(147) The concept of community "condemnation" sounded a
potentially retributive note, since condemnation has been associated with the
"expressive" aspect of retributive justice.(148) However, the court's
description of this concept as meaning "in other words" the reaffirmation of
norms to maintain respect for them indicates a deterrent meaning, presumably
consistent with the state constitution's call for protection of the public.

In 1978, the Alaska legislature adopted a statutory statement of purposes that
appeared to incorporate its high court's reading of the state constitution,
listing among the criteria to be used in imposing sentence on the criminal
offender the following:

(5) the effect of the sentence to be imposed in deterring the defendant or
other members of society from future criminal conduct; and

(6) the effect of the sentence to be imposed as a community condemnation of
the criminal act and as a reaffirmation of societal norms.(149)

The legislature inserted an "and" where the court had said "or in other
words," which made community condemnation separate from, rather than
synonymous with, the goal of reaffirmation of societal norms.(150) This
provision is more retributive-sounding than the court's version. Still,
subsection (6) was interpreted by courts as serving a nonretributive purpose.
The state supreme court observed that "community condemnation is distinct from
retribution"(151) and even stated that "retribution ... is an impermissible
consideration in sentencing."(152) An Alaska lower court explained the two
possible interpretations of subsection (6):
[I]f community condemnation and affirmation of community norms is viewed
instrumentally (i.e., as a means to an end), as intended to publicize the
norm and the sanction, and thereby discourage deviance from it, the
affirmation of community norms is synonymous with general deterrence.
Alternatively, if the purpose is to express moral disapproval of the
defendant and thereby render unto him his desserts [sic] without regard to
the impact of his or others' future conduct from the sentence, then it is
synonymous with retribution.(153)

The Alaska Supreme Court concluded that the former reading applied.(154) The
lower court may have overstated the degree to which a retributive system must
mete out punishment "without regard to" deterrent effect (deterrent effect may
be given secondary consideration in at retributive system), but arguably the
court thereby kept the statute consistent with the state constitution.

It did so, however, through a somewhat strained analysis. The idea of
condemnation is usually associated with retribution. The legislature's "and"
in place of the supreme court's original "or" would seem to sever even further
the somewhat attenuated association of condemnation with deterrence. Even the
court's subsequent and repeated insistence that condemnation is nonretributive
runs into the problem that, to the extent that subsection (6) is about
deterrence, it seems to be redundant of subsection (5) of the same law, which
calls for consideration of deterrence. It is not easy to imagine how a judge
would give not only "ordinary" deterrent effect to the statute, but also a
deterrent effect that separately or additionally includes the deterrent effect
of community condemnation of the act and reaffirmation of societal norms,
while at the same time scrupulously eschewing giving effect to retribution.

Alaska courts interpreted the state constitution to permit something that
closely resembled retribution. The state legislature, now empowered by this
authorization, passed a statement of purposes with something that even more
closely resembled retribution. The state wound up with something resembling
retribution notwithstanding its constitution's apparent rejection of it.
Perhaps the Alaska Supreme Court's original reading of the state constitution
as including "condemnation" was entirely in good faith and logically
justified. It also may be that Alaska followed the same pattern as other
states with ostensibly utilitarian constitutional provisions specifying
purposes for criminal punishment. Retributive or seemingly retributive
purposes were found, one way or another, except that in Alaska they were
accommodated indirectly to avoid clear inconsistency with the state
constitution.

Perhaps because the Alaska courts and legislature intended all along to
endorse retribution, however much they insisted otherwise, the legislature
amended the state constitution in 1994 to add language calling for
consideration of community condemnation of the offender, without any reference
to reaffirming social norms. Under the usual rules of statutory
construction,(155) the removal of the reference to reaffirmation of social
norms indicates an intention to permit the use of punishment as community
condemnation regardless of deterrent effect, i.e., in order to achieve
retribution. Other than making the use of retribution more open, it is
difficult to see what practical effect the change could have. Further, the old
emphasis on reformation is abandoned; it moves to last place in the new, more
complicated litany of purposes.(156)

D. The Impact of State Constitutional Provisions on Purposes

These mostly rather old state constitutional provisions all stress
rehabilitation and utilitarian purposes and omit retribution. Whatever
nineteenth-century flirtation with utilitarianism inspired them, they lay
mostly unemployed until recently. When purposes began to matter in the face of
a utilitarian movement of sorts in the mid-twentieth century, the provisions
were trotted out by defendants, and an attempt was made to give them some
actual force. This event is not all that dissimilar from what happened to the
Bill of Rights to the U.S. Constitution in this century; formerly idle
provisions were finally given attention and actual effect.(157) In this case,
however, the result was to prompt the general repudiation of state
constitutional provisions by courts and legislatures through judicial
activism, constitutionally questionable legislation, strained statutory
interpretation, offenses against federalism, and belated constitutional
amendment in the interest of salvaging retribution.

IV. THE SIGNIFICANCE OF THE REPUDIATION OF UTILITARIAN LAWS ON PURPOSES

State courts had indications that nonretributive statutory statements of
purpose were meant to be taken seriously. The provisions were set forth in
numbered provisions rather than in preambles or comments, and stated in
imperative rather than precatory terms. Variation from the language in the
Model Penal Code, and from state to state, suggests care consistent with the
idea that state legislatures at least thought these statutory provisions
meaningful and expected them to guide courts.(158) Yet, state courts almost
routinely prevented these statutes from having any effect; indeed, their mere
existence served as an occasion for courts to enunciate contrary judge-made
law.

Likewise, the well-established idea of constitutional supremacy ought to have
made courts deferential toward constitutional articulations of purpose. The
courts and legislatures had every indication as well that these provisions
were meant to be taken seriously. "Shall" is the operative verb in the
constitutional provisions, and they are located within the hallowed precincts
of the bill of rights in the state constitution. Yet the courts, and
legislatures, have repeatedly prevented the enforcement of these provisions.

One possible explanation for such activism may be the hangover effect of a
tradition of judicial discretion in sentencing and in establishing sentencing
criteria. This possibility is supported by the behavior of courts in states
where no legislative, constitutional, or even presumed U.S. Supreme Court
precedent bound the court's exercise. For example, the Massachusetts
judge-made law on purposes was apparently derived from an assistant district
attorney's brief in a case twenty-five years ago.(159) A standard criminal law
hornbook served as the origin of the state purposes for punishment in
Wisconsin.(160) In Utah, naked assertion by the court, without source or
justification, provided the state purposes; a subsequent endorsement of the
idea that "retribution is central to any well-reasoned theory of justice"
cited to a single law review article.(161) Rhode Island's supreme court
employed Justice Stewart's concurrence in Furman for its own conclusion that
Rhode Island's criminal law was intended to channel supposed retributive
"instincts."(162) None of these state courts attempted to infer state purposes
from the existing criminal code. Even given the absence of a statement of
purposes, presumably some insight could have been obtained about state
purposes from the legislative history and characteristics of the penal code
itself,(163) considering such factors as the presence or absence of the death
penalty, the criteria for the availability of consecutive sentences, the
circumstances under which parole would be available, the existence of
alternatives to incarceration, and so forth--the usual process in determining
legislative intent. However, these courts instead used broad latitude to
arrive at their own conception of state purposes. Thus, to some extent, the
unorthodox behavior of the courts in those states with statutory and
constitutional purposes may be partly attributed to a certain entrenched
judicial attitude of entitlement regarding the enunciation of purposes.

However, discretion seems an insufficient explanation for the unorthodoxy, let
alone for the fact that such unorthodoxy promoted retribution in particular.
Statements of purpose carry substantival weight in statutory
interpretation,(164) and this principle is as venerable, if not more so, than
judicial discretion in sentencing. Constitutional supremacy is an even more
fundamental principle.(165) The courts, therefore, not only had to be
suffering from lingering misconceptions regarding their own discretion, but
also resisting established doctrine regarding the primacy of statements of
purpose and the manifest importance of constitutional provisions. Furthermore,
statutes calling for construction of the penal law strictly, liberally, or
according to the "fair import" of its terms were respected and commonly
applied by courts, notwithstanding that judicial discretion had formerly
established such rules, and even though these provisions sometimes abrogated
common law.(166) The courts' nimbleness in this area suggests the capacity for
similar nimbleness, if desired, when it came to statutory purposes.

Additionally, courts seemed to have mixed reactions to the statutory and
constitutional statements of purpose, rather than the uniform indifference
that would have suggested the assumption of continuing discretion. Citations
to the statutes and constitutional provisions show that the courts recognized
their existence and legal effect; the creative interpretations that followed
such citations suggest that courts had their own ideas about what that effect
ought to be.

Another possible explanation for the courts' behavior is that they believed
that the U.S. Supreme Court had spoken dispositively on the question of
purposes. Indeed, a number of courts cited the joint opinion of Justices
Stewart, Powell, and Stevens announcing the judgment in Gregg v. Georgia for
their endorsement of retribution as a state purpose.(167) Many courts relied
upon the sentence in the Gregg joint opinion to the effect that "[t]he death
penalty is said to serve two principal social purposes: retribution and
deterrence,"(168) as establishing retribution as a state purpose. Gregg was
used as a justification for importing retribution into state purposes for
punishment in a number of states that already had nonretributive statutory or
constitutional statements of purpose.(169) In these states, the Gregg joint
opinion actually displaced duly-enacted state law.(170) Gregg also played at
least a supporting role in other states where courts repudiated statutes or
constitutional provisions.(171)

The Court presumably did not mean for its remarks about purposes to establish
state purposes and displace state law, and states did not appear to be legally
justified in treating the joint opinion in Gregg as doing so. The joint
opinion reflected the view of only three of the justices, and therefore was
not in any respect binding precedent in its particulars. Its statement about
deterrence and retribution was accompanied by no citations, and mentioned only
a single California case for the proposition that incapacitation had also been
articulated as a purpose for the death penalty.(172) Moreover, the language by
its plain meaning demonstrates that the justices were only making an
observation about what purposes were generally given for capital punishment,
rather than articulating any rules about what those purposes must be.

Under principles of federalism, the Court would not have been constitutionally
justified in specifying state purposes for punishment. The Court's examination
of the constitutionality of particular purposes is obviously legitimate and
proper as part of its task of enforcing the supreme law of the land.(173)
However, the Court has only a very limited role due to its great deference to
state decision-making in the area of criminal law. According to the Court,
"federal interference with a State's good-faith administration of its criminal
laws is peculiarly inconsistent with our federal framework."(174) Likewise,
"it has long been recognized as the very essence of our federalism that the
States should have the widest latitude in the administration of their own
systems of criminal justice."(175) Additionally, "[t]he essence of federalism
is that States must be free to develop a variety of solutions to problems and
not be forced into a common, uniform mold."(176) Examples of such statements
by the Court are legion.(177) Thus, the Supreme Court denies that it has
authority or the right to say what state purposes for punishment are or should
be, except insofar as state purposes clash with the Constitution.

Perhaps the state courts' use of Gregg is not surprising. Although the
justices framed their discussion in terms of what were "said" to be purposes,
they were nonetheless distinguishing between and among purposes and employing
these purposes to evaluate punishments, and thereby rendering only retribution
a constitutionally tested and approved purpose.(178) The distance between
permissible and mandatory purposes might have seemed to many states
particularly narrow in the context of death penalty jurisprudence, where
careful adherence to the Court's specifications was needed to pass
constitutional muster. Indeed, not only was Gregg used as a basis for
countermanding contrary state purposes, but it was also used in a number of
states that lacked statutory statements of purposes to establish state
purposes.(179)

Further, the justices in Gregg did not examine Georgia's own statutory
statement of purposes for punishment, which arguably did not even include
retribution.(180) Presumably, the Court was not concerned about holding the
state to its articulated purposes and would defer to the state as long as any
permissible purposes existed.(181) While this inattention may have been
intended to be deferential, it also may have created the impression that the
Court was specifying purposes for punishment in Georgia.(182) It would have
communicated more concern for federalism for the Court to have examined the
actual state purposes, found them sufficient (even if not including
retribution), and even mentioned the possibility that other, different state
purposes could also be acceptable. Professor Gerald Gunther has criticized,
albeit in the context of Equal Protection cases, the Court's willingness "to
supply justifying rationales by exercising its imagination," rather than
inquiring into actual state purposes. Under his model, "[t]he yardstick for
the acceptability of the means would be the purposes chosen by the
legislatures, not `constitutional' interests drawn from the value perceptions
of the Justices."(183) Gunther suggests that this approach would benefit
federalism, stating, "The avoidance of ultimate value judgments about the
legitimacy and importance of legislative purposes would make the means-focused
technique a preferred constitutional ground for a less interventionist
Court."(184) In these cases, also, the application of the state's articulated
purposes would have been less intrusive; only if the articulated purposes were
defective would the Court need to specify alternative acceptable purposes in
order to show deference.

Moreover, the Court's treatment of purposes of punishment after Gregg was, if
anything, more forceful, and more suggestive of an assertion of authority in
this area. The subsequent pronouncements by the Court on purposes are not
cited nearly as frequently by state courts as the Gregg joint opinion, but
they continued to enlarge the Court's role and probably helped solidify the
impression that the Court was specifying the legal purposes for punishment,
and capital punishment in particular.(185)

Enmund v. Florida(186) made purposes into a constitutional standard. The case
examined the legitimacy of a sentence of death for the driver of a getaway car
in a robbery-murder.(187) The Court treated the Gregg joint opinion as
establishing retribution and deterrence as definitive purposes and concluded
that unless the death penalty as applied to Enmund and others in his situation
"measurably contributes to one or both of these goals, it `is nothing more
than the purposeless and needless imposition of pain and suffering' and hence
an unconstitutional punishment."(188) The Court, no longer a mere plurality,
had now implicitly accepted Gregg's two purposes for the death penalty as
setting the standard against which capital punishment (and perhaps all
punishment) in the states would be measured. The Court had also set itself up
to evaluate the success of punishments at achieving these purposes, even going
so far as to invalidate on the ground of insufficient purposes the state's use
of the death penalty as applied to this type of felony murder. Once again, the
Court did not examine what Florida actually said were its purposes for
punishment,(189) which apparently did not include retribution, presumably
because it was more deferential to state authority to analyze the validity of
the punishment against any potential purpose.(190)

Two years later, in Spaziano v. Florida,(191) the Court engaged in its most
dramatic encroachment on federalism on the question of purposes, and made its
most emphatic endorsement of retribution. In Spaziano, the Court noted that
"[w]hatever the sentence, its deterrent function is primarily a consideration
for the legislature."(192) It was not so retiring on the question of
retribution, however. It stated that "[w]hile retribution clearly plays a more
prominent role in a capital case [than in a non-capital case], retribution is
an element of all punishments society imposes...."(193) The Court also went so
far as to identify retribution as the "primary justification for the death
penalty."(194)

The Court had progressed from the apparently modest position taken by the
three justices in Gregg as to what purposes were "said" to be implicated in
the death penalty, to the use of Gregg in Enmund to reverse a felony-murder
conviction because it failed to serve the purposes articulated in Gregg, and
then to the forceful position in Spaziano that retribution is the main
justification for imposing death and an element of all punishments. The
Court's deference to the state legislature on the question of deterrence was
of little consequence.(195) For those states in which the legislature decided
that deterrence was a reason for punishment (including capital punishment) and
retribution was not, as Florida's actual legislative statement of purposes
ostensibly did, that basis was rendered constitutionally problematic by the
Supreme Court's uncategorical assertion that retribution was "the primary
purpose" of capital punishment and an element of "all" punishments. The
Florida legislature essentially deprived itself of "the primary justification"
for the death penalty. Notwithstanding federalism, it would not have been
preposterous for state courts to conclude that retribution had been rendered
necessary to state purposes by the Court's treatment of the issue.(196)

Like judicial discretion, however, state court overestimation of the impact of
U.S. Supreme Court pronouncements on purposes provides an incomplete
explanation for why state courts, and legislatures, did what they did. States
that did not rely on Gregg still managed to ignore or subvert statutory and
constitutional statements of purposes, and still reached the same result: the
inclusion of retribution where, according to state law, it had been excluded.
Further, Gregg did not clearly drive the majority of state courts' endorsement
of retribution. State courts should have had incentives to recognize that
Gregg was irrelevant: the joint opinion's comments on purposes were easily
distinguishable, adoption of Gregg was against state interest in autonomy, and
such adoption was countermanded by the Court's own federalist jurisprudence.
Instead, state courts may have seized upon what looked like a Supreme Court
imprimatur for retribution, in order to give a superficial semblance of
justification to their unorthodox maneuvers around state law, which were
motivated by reasons other than a misconception of the Court's role.

Indeed, the activist state courts seem to have been following a general trend
toward reducing the role of utilitarian purposes and reinstating retribution.
States that adopted or amended their statutory statement of purposes, or
adopted sentencing guidelines with stated purposes, during the late 1970s and
afterward, were much more likely to adopt retributive purposes for punishment
than previously. California endorsed retribution as "the" purpose for its
punishment in 1977(197) and Pennsylvania identified it as the "primary"
purpose in 1982,(198) while states such as Arizona (1978), North Dakota
(1973), and Tennessee (1989) adopted language evocative of the "just deserts"
of traditional retributive punishment.(199) Still other states--Hawaii (1972),
North Carolina (1981), New York (1982), Montana (1991), and Arkansas (1993) --
enacted various other kinds of retributive statements of purpose.(200) The
states that had adopted laws on purposes in the 1960s and early 1970s were
much more likely to have adopted utilitarian, nonretributive statutes. Courts
"amending" these nonretributive statutes to include retributive purposes also
tended to do so later on, even, in some cases, after an initial acceptance of
nonretributive purposes, as in Colorado and Pennsylvania. Constitutional
provisions tended to be subverted, and then belatedly amended, on this
schedule as well. Thus, these courts' violation of the separation of powers
doctrine may have reflected their sense that whatever the questionable nature
of their activism, the legislature would soon follow anyway. The courts might
have been quite accurate in anticipating their respective legislatures, but
that is not faithfulness to the rule of law.

The short shrift these statutory and constitutional provisions received does
not stem from a principled argument that they need not have been respected.
Indeed, no court made such an argument. Rather, the reason that. these
provisions were marginalized is most likely because taking them seriously
would have eliminated or greatly reduced the role played by retribution and
enhanced the role played by utilitarian purposes such as rehabilitation.

V. CONCLUSION

State courts ignored and evaded relevant state statutes and constitutional
provisions specifying nonretributive purposes, or engaged in unorthodox
methods of statutory interpretation, in order to find retribution as a state
purpose for punishment, in violation of the separation of powers. State
legislatures ignored constitutional supremacy by enacting retributive statutes
that either ignored or trod upon contrary constitutional provisions. Assorted
state courts, with the help of the U.S. Supreme Court, abandoned the
federalism doctrine in order to establish and to promote retribution as a
purpose of criminal punishment. These courts embraced U.S. Supreme Court
remarks endorsing retribution, even if that meant displacing relevant state
law. Even the revisers of the comments on the Model Penal Code engaged in an
ex post facto attempt to undercut the nonretributive nature of the original.
The transgressive mode of making law seized virtually all the participants in
the project of articulating purposes for punishment.

Had law articulating utilitarian purposes been taken seriously, it could have
had some real effect on the administration of criminal justice, as a few
examples indicate. One state court reversed a sentence based on retribution as
violating a state statute specifying utilitarian justifications for
imprisonment.(201) In another state, a sentence would have been invalidated
under the constitutional provision stating nonretributive purposes.(202) The
Supreme Court's ruling in Enmund v. Florida,(203) that in some instances the
death penalty does not serve its articulated purposes, suggests that state
courts could even have found their own death penalty statutes violative of the
state constitution, and, indeed, some advocates attempted to bring about such
a result.(204) Jury arguments, voir dire, and jury instructions are other
areas that could have been affected (purged of the effect of retributive
elements) if these nonretributive laws had been enforced.

Presumably taking such laws seriously would have been politically unpopular
and led, as in some cases it did, to statutory and constitutional amendment.
However, that is the established way of making changes, consistent with the
rule of law, not judicial activism or legislative repudiation of
constitutional supremacy. The urgency that prevented courts from waiting until
the legislation was amended, or legislatures from waiting until the
constitution was amended, reflected a refusal to allow these nonretributive
provisions to be effective. Many participants in the system, including
apparently the U.S. Supreme Court, wanted the criminal law to have an
articulated purpose of retribution, and abandonment of principle and doctrine
was preferred over allowing the law to mean what it said, and to have had the
effects that it would have had if it were allowed to mean what it said. The
risk that the law might not be amended or amended quickly was apparently
enough in itself to discourage adherence to the rule of law. Further, it is
always possible that the statute or constitutional provision, once subjected
to the vicissitudes of the political sphere, would not in fact have been
amended or immediately amended. The rule of law was thwarted, and the
political process subverted, by courts and legislatures simply unwilling to
take the risk that law requires. Retribution was that important.

It may have been simply inconceivable to these courts and legislatures, and
the U.S. Supreme Court, that retribution might not be a purpose of punishment,
whatever state statutes and constitutional provisions might say expressly. So
many legal concepts owe a debt to retribution, from the idea that punishment
should be proportionate (which, notwithstanding the Model Penal Code,(205)
some see as necessarily deriving from the idea of "just deserts"(206) to the
idea of criminal culpability itself, which has often assumed a moral
condemnation beyond any vindication of social convenience.(207) And the
concept of retribution is not confined to the criminal law. Courts have long
employed the retributive aspect of civil tort actions, likening them to
punishment in the criminal courts;(208) this concept of punitive damages gets
its metaphorical footing from the assumption that the criminal justice system
is retributive, and shares certain moral conceptions with the traditional
understanding of criminal justice.(209) Additionally, many states developed
the juvenile justice system in direct contradistinction to a presumptively
retributive adult system.(210) It may have been that laws specifying
utilitarian purposes and omitting retribution were minimized, ignored, or
circumvented because of the deeply entrenched nature of retribution as an
animating concept of the criminal law and law in general.

Also, the spirit of utilitarianism promoted by the drafters of the Model Penal
Code was increasingly doubted, questioned, and criticized in the 1970s and
beyond. The rising crime rate, and lack of empirical support showing that the
criminal law was accomplishing deterrence or rehabilitation, suggested that
utilitarian goals were not being achieved.(211) (Retribution, having no claims
to efficacy, has no such empirical burdens). However, given that even the
simple articulation of utilitarian goals for punishment was so frequently
undermined, overridden, and attacked, one must wonder whether more substantive
efforts to make punishment rehabilitative or deterrent were themselves having
much impact on the law, or whether they were, rather, resisted and thus never
really tested.

Some theorists suppose that the deflation of the support for utilitarian
purposes was caused by their association with the "indeterminate sentence," a
theory of sentencing that specified minimum but not maximum terms of
incarceration. The principle behind indeterminate sentencing was that its
flexibility would facilitate the crafting of more thoughtful approaches
addressed to the individual offender. However, it actually resulted in wildly
varying sentences that affronted both liberals and conservatives, who then
joined forces to end the practice, which, as a side effect, helped ensure the
evisceration of associated utilitarian purposes for punishment as well.(212)
(Indeed, some retributive statements of purpose were articulated in connection
with the sentencing guidelines that replaced indeterminate sentences with
specified sentencing ranges).

In short, the superficial effort to excise retribution ultimately failed. A
significant change in the understanding of the purposes of the criminal law,
at least as expressed through their articulation in law, did not occur.(213)
Utilitarian purposes were nowhere able permanently to replace retributive
ones. Perhaps the marginal incorporation and assimilation of utilitarian
purposes was itself a substantial change, and one that suggests possible
future effects. Certainly the criminal law was at its most utilitarian at
about the mid-twentieth century, and utilitarian concerns even now stand
regularly side-by-side with retributive ones. But it is also true that in
their most meaningful test to date, the utilitarian purposes were found by
many courts and legislatures to be so inadequate to justify punishment that
retribution had to be restored, emphatically and by whatever means necessary,
to the forefront of the scheme. Articulated purposes, whether or not they
always perfectly reflect substantive law or prevailing tendencies, do reflect
what people think they are doing or at least what they want to say about what
they are doing. And those purposes suggest that key participants in the
criminal justice system -- state courts, state legislatures, and even the U.S.
Supreme Court -- have never been sufficiently enamored of utilitarian purposes
to ensure their acceptance and implementation.

The usual litany of retribution, deterrence, rehabilitation, and
incapacitation is thus misleading insofar as it implies that the criminal law
has been deployed like a Swiss Army knife to accomplish multiple purposes.
Criminal law is a retributive tool for which utilitarians have thus far found
such auxiliary uses as deterrence, rehabilitation, and incapacitation. Rather
than a Swiss Army knife, multiple tools in one package, punishment is more
aptly characterized as a table knife, which can also be used in a pinch as a
screwdriver or a letter opener or a paint can key, but for which the essential
purpose is never unclear.

The centrality of retribution to punishment is illustrated by examining what
happened when utilitarians attempted to make the criminal justice system use
the table knife of punishment as a screwdriver instead, rather than merely in
addition to using it as a knife: the system responded not merely with refusal,
but with a defiance that indicates just how marginal and extemporaneous these
other potential uses are. The criminal justice system has, unsurprisingly,
assimilated these other purposes: they can, after all, help ensure the
maintenance of retribution by providing an alternative set of justifications
for its vehicle of punishment. Nonretributive purposes are tolerated as
features that strengthen the coalition that drives criminal punishment. It
would make more sense to say that the purpose of criminal punishment is
retribution, and other incidental purposes may be served only so long as they
do not interfere with or subordinate the achievement of retribution.(214)

One might also see the cavalier way in which utilitarian reforms have been
stamped out as an indicator that law follows gradualist, meticulous procedures
only when it must. The lack of a broad and deep constituency for utilitarian
reforms made adherence to method unnecessary (utilitarians simply had no
hospitable forum in which to call errant courts and legislatures to task).
Efforts to demote and eradicate retribution in order to facilitate utilitarian
purposes of punishment not only failed but promoted a vigorous and highly
irregular campaign to restore retribution that illuminates the strength and
depth, and nature, of its role. If utilitarian purposes for punishment are
ever to obtain significance in our system, the effort will have to involve
nothing less than fundamental conceptual changes in our understanding of the
criminal law.

(1.) Only Professor Marc Miller seems to have focused on the role of
articulated purposes; unlike this Article, however, his article concerns
itself with the role of such purposes in the federal system. See generally
Marc Miller, Purposes at Sentencing, 66 SO. CAL. L. REV. 413 (1992); Leonard
J. Long, Comment: Miller's Algebra of Purposes at Sentencing, 66 SO. CAL. L.
REV. 483 (1992).

(2.) State criminal law constitutes the basis for perhaps 99% of criminal
cases and so is the primary focus of this Article. See, e.g., William W.
Schwarzer & Russell R. Wheeler, On the Federalization of the Administration of
Civil and Criminal Justice, 23 STETSON L. REV. 651, 681 (1994). Further, it
was not until 1984 that the Congress decided to specify purposes for the
federal criminal law. The resulting statement of purposes endorses
retribution, deterrence, incapacitation, and rehabilitation. See 18 U.S.C.
[sections] 3553(a)(2)(A)-(D); see also 28 U.S.C. [sections] 994 (U.S.
Sentencing Guidelines Commission charge); see generally Miller, supra note 1,
for a discussion of the federal law on purposes.

(3.) See, e.g., Mark V. Tushnet, Following the Rules Laid Down: A Critique of
Interpretivism and Neutral Principles, in CRITICAL LEGAL STUDIES 157, 172
(Allan C. Hutchinson ed., 1989) ("In a legal system with a relatively
extensive body of precedent and with well-developed techniques of legal
reasoning, it will always be possible to show how today's decision is
consistent with the relevant past decisions. Conversely, however, it will
always be possible to show how today's decision is inconsistent with the
precedents.").

(4.) Some have criticized retribution as tantamount to "retaliation" and
"vengeance." Such a critique is implied in Morissette v. United States, 342
U.S. 246 (1952), a case involving a violation of federal law, in which the
Court observed that consideration for the mental element in crime "has
afforded the rational basis for a tardy and unfinished substitution of
deterrence and reformation in place of retaliation and vengeance." Id. at 251
n.5 (1952) (citing Williams v. New York, 337 U.S. 241 (1949)); see also Furman
v. Georgia, 408 U.S. 238, 343 (1972) (Marshall, J., concurring)
("[R]etaliation, vengeance, and retribution have been roundly condemned as
intolerable aspirations for a government in a free society."). However,
retribution is, at least in theory, quite distinct from retaliation and
vengeance. Robert Nozick distinguishes retribution by noting that it is
directed only at wrongs, has inherent limits, is not personal, involves no
pleasure at suffering, and employs procedural standards. See ROBERT NOZICK,
PHILOSOPHICAL EXPLANATIONS 366-8 (1981).

(5.) See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 234-35 (1968):
In its most interesting form modern retributive theory has shifted the
emphasis from the alleged justice or intrinsic goodness of the return of
suffering for moral evil done, to the value of the authoritative
expression, in the form of punishment, of moral condemnation for the moral
wickedness involved in the offense.

Id. (emphasis added). This expression of condemnation is retributive in that
it is not intended to achieve deterrence but is considered to have moral value
in itself.

(6.) The Metaphysics of Morals, in KANT: POLITICAL WRITINGS 131, 156 (Hans
Reiss ed. & H.B. Nisbet trans. 1991).

(7.) John Stuart Mill, An Examination of Sir William Hamilton's Philosophy, in
FREE WILL 59, 63 (Sidney Morgenbesser & James Walsh eds., 1962). Mill also
suggests that retribution is irrational:
If any one thinks that there is justice in the infliction of purposeless
suffering; that there is a natural affinity between the two ideas of guilt
and punishment, which makes it intrinsically fitting that whenever there
has been guilt, pain should be inflicted by way of retribution; I
acknowledge that I can find no argument to justify punishment inflicted on
that principle.

Id. at 64.

(8.) Sometimes "specific deterrence" is treated as synonymous with
rehabilitation for the purpose of making the offender less dangerous, although
a philosophical distinction can be drawn between deterring the criminal
through inculcating a greater fear of punishment, and making him less likely
to offend because he is changed in some way that renders him happier to abide
by the law than to break it.

(9.) In older theories of rehabilitation, prison was itself supposed to have a
salutary effect by forcing the criminal to contemplate his own behavior. The
idea of prisons as "penitentiaries" expresses that sense. See FRANCIS A.
ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL 12-13 (1981).

(10.) See, e.g., Commonwealth v. Kostka, 419 A.2d 566, 567-73 (Pa. Super. Ct.
1980) (examining sentences based on retribution for consistency with state
purposes) (discussed infra Part II.C.3); Fointno v. State, 487 N.E.2d 140,
143-49 (Ind. 1986) (same) (discussed infra Part III); State v. Grass, 599 P.2d
1203, passim (Or. Ct. App. 1979) (same) (discussed infra Part III).

(11.) See, e.g., Brown v. State, 686 So.2d 385, 398-99 (Ala. Ct. Crim. App.
1995) (prosecutorial arguments); Baird v. State, 604 N.E.2d 1170, 1179 (Ind.
1992) (jury instructions) (discussed infra Part III.A.); Emory v. State, 420
N.E.2d 883 (Ind. 1991) (same) (discussed infra Part III.A.); see also cases
collected infra note 73.

(12.) See infra notes 50, 51 (discussing Texas cases).

(13.) See, e.g., Williams v. State, 430 N.E.2d 759, 766 (Ind. 1982) (discussed
infra Part III.A.); Driskill v. State, 7 Ind. 338, 343 (1855).

(14.) For discussion of some of the considerations of whether purposes should
even be articulated, see infra note 158.

(15.) This list is not presented as being based upon a well-informed calculus
of costs and benefits for each type of crime, but as a roughly suggestive
list.

(16.) A commentator has observed:
The American Law Institute neither expected nor intended that its Model
Penal Code would be adopted in toto anywhere, or that it would lead to the
establishment of a uniform national penal law. Diversity of political
history and of population makeup made that kind of expectation quite
unrealistic. Rather, the institute hoped that the Code would spark a fresh
and systematic reevaluation of the penal law in many jurisdictions and that
its provisions would be liberally drawn on. The institute was not to be
disappointed in this hope.

Charles McClain, Criminal Law Reform: Historical Developments in the United
States, in 2 ENCYCLOPEDIA OF CRIME AND JUSTICE 510, 512 (1983).

(17.) See MODEL PENAL CODE AND COMMENTARIES, Foreword, xi (1985) [hereinafter
MPC] (indicating that 34 states at that time had penal codes influenced in
some part by the MPC).

(18.) See MPC [sections] 1.02 cmt. 15 (1985).

(19.) See ALABAMA STAT. [sections] 13A-1-3(5) (Michie 1998) (adopted 1977);
ALASKA STAT. [sections] 12.55.005 (Michie 1998) (adopted 1978); ARIZ. REV.
STAT. [sections] 13-101 (West 1989) (adopted 1978); ARK. CODE ANN. [sections]
16-90-801 (Michie Supp. 1999) (adopted 1993); CAL. PENAL CODE [sections]
1170(a)(1) (Deering 1993) (adopted 1977); COLO. REV. STAT. [sections]
18-1-102(b) (1999) (adopted 1963) [formerly 40-1-102]; DEL. CODE ANN. tit. 11
[sections] 201 (1995) (adopted 1973); FLA. STAT. [sections] 775.012(6) (West
1992) (adopted 1974) [formerly [sections] 16-1-2(4)]; GA. CODE ANN. [sections]
26-102 (1998) (adopted 1968) [formerly [sections] 16-1-2(4)]; HAW. REV. STAT.
[sections] 706-606 (1993) (adopted 1972); 720 ILL. COMP. STAT. 5/1-2(C) (West
1993) (adopted 1962); ME. REV. STAT. ANN. tit. 17-A [sections] 1151 (West
1983) (adopted 1976); MINN. STAT. [sections] 609.01 (1987) (adopted 1963);
MONT. CODE ANN. [sections] 46-18-101(2) (1999) (adopted 1983); N.Y. PENAL LAW
[sections] 1.05(5)-(6) (McKinney 1998) (adopted 1982); N.C. GEN. STAT.
[sections] 15A-1340.12 (1997) (adopted 1981) [formerly 15A-1340.3]; N.D. CENT.
CODE [sections] 12.1-01-02 (1997) (adopted 1973); OHIO REV. CODE ANN.
[sections] 2929.11 (West 1997) (adopted 1996); OR. REV. STAT. [sections]
161.025(1)(a) (1993) (adopted 1971); 42 PA. CONS. STAT. [sections] 9721 (1983)
(adopted 1982); TENN. CODE; ANN. [sections] 40-35-102(3) & [sections]
40-35-103 (1990) (adopted 1989); TEX. PENAL CODE ANN. [sections] 1.02(1) (West
1994) (adopted 1973); WASH. REV. CODE [sections] 9A.04.020 (1998) (adopted
1975).

(20.) Professor Stephen J. Schulhofer observes that while the MPC is
consistent with its aspirations in that it "does eliminate most of the
traditional importance of the result in the law of attempts," it nonetheless
grades offenses based on harm caused, which is a retributive concern. Stephen
J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of
Conduct in the Criminal Law, 122 U. PA. L. REV. 1497, 1499 (1974). The
drafters of the MPC generally treated attempts as equivalent to completed
crimes. See MPC [sections] 5.05 cmt. ("To the extent that sentencing depends
upon the antisochal disposition of the actor and the demonstrated need for a
corrective sanction, there is likely to be little difference in the gravity of
the required measures depending on the consummation or the failure of the
plan."). This equivalence of attempts and completed crimes, however, was not
accepted in the states. As Schulhofer notes, the MPC's recognition of a role
for harm caused is "apologetic[]." Id. at 1501. The MPC itself remarked that
"[d]istinctions of this sort are essential, at least when severe sanctions are
involved, for it cannot be expected that jurors will lightly return verdicts
leading to severe sentences in the absence of the resentment aroused by the
infliction of serious injuries. Whatever abstract logic may suggest, a prudent
legislator cannot disregard these facts in the enactment of a penal code." MPC
[sections] 2.03 cmt., at 257.

(21.) See MPC [sections] 1.02. Subsection 2 lays out the philosophical,
procedural, and administrative goals of the system:

(2) The general purposes of the provisions governing the sentencing and
treatment of offenders are:

(a) to prevent the commission of offenses;

(b) to promote the correction and rehabilitation of offenders;

(c) to safeguard offenders against excessive, disproportionate or arbitrary
punishment;

(d) to give fair warning of the nature of the sentences that may be imposed on
conviction of an offense;

(e) to differentiate among offenders with a view to a just individuation in
their treatment;

(f) to define, coordinate and harmonize the powers, duties and functions of
the courts and of administrative officers and agencies responsible for dealing
with offenders;

(g) to advance the use of generally accepted scientific methods and knowledge
in the sentencing and treatment of offenders;

(h) to integrate responsibility for the administration of the correctional
system in a State Department of Correction [or other single department or
agency].

(emphasis added).

(22.) MPC [sections] 1.02 cmt. 4 (Tentative Draft No. 2 (1954)) (emphasis
added).

(23.) Herbert Wechsler, Sentencing, Corrections, and The Model Penal Code, 109
U. PA. L. REV. 465, 468 (1962).

(24.) Paul Tappan, Sentencing under the MPC, 23 LAW & CONTEMP. PROBS. 528, 528
(1958).

(25.) See 73 AM. JUR. 2D Statutes [sections] 211 (1974) ("As exceptions in a
statute strengthen the force of the law in cases not excepted, so enumerations
weaken it in cases not enumerated. Indeed, it is a general principle of the
interpretation that the mention of one thing implies the exclusion of another;
expressio unius est exclusio alterius.") (footnotes omitted). This time-tested
canon of statutory construction has been frequently employed. See, e.g., U.S.
Term Limits, Inc. v. Thornton, 514 U.S. 779, 793 n.9 (1995) (citing canon to
support ruling that no qualification for Congress, other than those specified
in Article I, can be enacted); O'Melveny & Myers v. FDIC, 512 U.S. 79, 86
(1994) (asserting the canon to hold that FIRREA puts FDIC "in the shoes" of
failed S&Ls); Leatherman v. Tarrant Cty. Narcotics Unit, 507 U.S. 163, 168
(1993) (citing the canon to hold that FED. R. CIV. P. 9(b) does not require
particularity in pleadings in [sections] 1983 municipal liability cases); but
see Pauley v. Bethenergy Mines, 501 U.S. 680, 703 (1991) (criticizing use of
canon) (citing Cass R. Sunstein, Law and Administration after Chevron, 90
COLUM. L. REV. 2071, 2109 n.182 (1990)). In criticizing the use of this canon,
Professor Sunstein makes the point that the canon "is a questionable one in
light of the dubious reliability of inferring specific intent from silence."
Id. Sunstein's remark makes particular sense in a universe of possibilities,
some of which might not even be imagined or considered by a court or
legislature in making its specific enumerations. But given that the drafters
of the MPC were rather familiar with the existence and indeed prominence of
retribution as a purpose for punishment, its omission in this case does
provide evidence of intentionality.

(26.) See Miller, supra note 1, at 456-57.

(27.) See supra note 2 (describing 18 U.S.C. [sections] 3533 (a)(2)(A)-(D)).

(28) Paul H. Robinson, Reforming the Federal Criminal Code: A Top Ten List, 1
BUFF. CRIM. L. REV. 225, 253 (1997). See also Paul H. Robinson, Hybrid
Principles for the Distribution of Criminal Sanctions, 82 NW. U.L. REV. 19, 19
n.1 (1988): ("The Model Penal Code, for example, describes `[t]he general
purposes of the provisions governing the definition of offenses' as including
desert, control of the dangerous, and deterrence.").

(29.) MPC [sections] 7.01(1)(c) (1985).

(30.) Von Hirsch stated that "the Code had a principle of desert in its clause
about `not depreciating' the seriousness of the crime." Model Penal Code
Conference Transcript -- Discussion Five, 19 RUTGERS L.J. 849, 850 (1988).
Professor Norval Morris also appeared at one time to treat this criterion as
retributive: "The third criterion ... reflects the obverse of the argument of
the maximum deserved punishment as a ceiling to punishment. Retribution ...
not only limits the worst suffering we can inflict on the criminal, but also
sometimes dictates the minimum sanction a community will tolerate." NORVAL
MORRIS, THE FUTURE OF IMPRISONMENT 78 (1974). However, Morris either changed
his mind about this interpretation or only meant to present this view as a
gloss. See Norval Morris, Sentencing Under the Model Penal Code: Balancing the
Concerns, 19 RUTGERS L.J. 811, 814-15 n.12 (1988) [hereinafter Sentencing]
(described infra note 42 and accompanying text).

(31.) MPC [sections] 7.01(1)(c) (1985).

(32.) The original comment for [sections] 7.01 stated that "[t]he factors
enumerated ... relate primarily to the question whether the defendant is a
source of future danger to the public but have some bearing also on the
relative necessity of a strong sanction for deterrent purposes." MPC
(Tentative Draft No. 2, at 34) (1954). This comment, which emphasizes
incapacitation and deterrence, continued to serve as the comment for this
section even after the section's revision. See MPC (Proposed Final Draft No.1,
at 36) (1961).

(33.) See Wechsler, supra note 23, at 468 (emphasis added).

(34.) MPC [sections] 7.01 cmt. 222 (1985).

(35.) See supra note 20.

(36.) MPC, Introduction to Arts. 6 & 7, at 2 (1985).

(37.) MPC [sections] 1.02 cmt., at 21 (1985) (footnote omitted).

(38.) MPC, Introduction to Arts. 6 & 7, at 16 (1985).

(39.) Herbert Wechsler, Revision and Codification of Penal Law in the United
States, 7 DALHOUSIE L.J. 219, 232 (1983).

(40.) See Wechsler, supra note 23. See also 73 AM. JUR. 2D Statutes,
[sections] 159 (1974) ("[N]o purpose or motive may be imputed to the
legislature which is not supported by the face of the law itself.") (footnote
omitted); id. at [sections] 196 ("The only mode in which the will of a
legislature is spoken is in the statute itself.") (footnote omitted).

(41.) George Fletcher, Mistake in the Model Penal Code: A False False Problem,
19 RUTGERS L.J. 649, 655 (1988).

(42.) See Sentencing, supra note 30, at 814-15 n.12 (citing 1985 Comment to
the Code). See also Mark D. Rosen, What Has Happened to the Common
Law?--Recent American Codifications, and Their Impact on Judicial Practice and
the Law's Subsequent Development, 1994 WIS. L. REV. 1119, 1250 (discussing
consequentialism of Code).

(43.) The Model Penal Code has an intermediate rule regarding statutory
construction: "The provisions of this Code shall be construed according to the
fair import of their terms...." MPC [sections] 1.02(3).

(44.) The MPC makes them part of the same statute, [sections] 1.02. States
have mostly done the same or made them adjoining statutes. See, e.g., ALA.
CODE [sections] 13A-1-6 (construction) & [sections] 13A-1-3 (purposes) (Michie
1998); DEL. CODE ANN. tit. X, [sections] 203 (construction) & [sections] 201
(purposes) (1995); OR. REV. STAT. [sections] 161.025(1) (purposes) &
[sections] 161.025(2) (construction) (1993); TEX. PENAL CODE [sections] 1.05
(construction) & [sections] 1.02 (purposes) (West 1994).

(45.) Where articulations of purpose occur in state constitutions, the law not
only provides a key to interpretation, but also constrains or determines the
scope of law as well. See infra Part III.

(46.) States generally have a separation of powers doctrine similar to that
found within the federal system. Indeed, unlike the federal Constitution, many
states have explicit state constitutional provisions mandating the separation
of powers. Harold H. Bruff, Symposium on the Texas Constitution: Separation of
Powers Under the Texas Constitution, 68 TEX. L. REV. 1337, 1340 (1990); John
M. Mulcahey, Comment, Separation of Powers in Pennsylvania: The Judiciary's
Prevention of Legislative Encroachment, 32 DUQ. L. REV. 539, 539 (1994). While
subtle differences exist, the common theme is to treat the doctrine similarly
to the way it is treated in the federal system. Roy Pulvers, Separation of
Powers Under the Oregon Constitution: A User's Guide, 75 OR. L. REV. 443, 445
(1996) (citing Monaghan v. Sch. Dist. No. 1, 315 P.2d 797, 800-01 (1957)). See
also State v. Ashley, So.2d 338, 342 (Fla. 1997).

(47.) 428 U.S. 153 (1976).

(48.) MINN. STAT. [sections] 609.01(1) (1987).

(49.) See State ex rel. Taylor v. Schoen, 273 N.W.2d 612, 616 (Minn. 1978)
(affirming denial of parole where lower court employed retribution as a
criterion); State v. Morrow, 492 N.W.2d 539, 546 (Minn. Ct. App. 1992)
(assuming "state interest in punishment and deterrence"); State v. Belfry, 431
N.W.2d 572, 572 (Minn. Ct. App. 1988) (citing Bearden v. Georgia, 461 U.S.
660, 671 (1983), where Georgia asserted interests, in revoking probation, of
"punishing the lawbreaker and deterring others from criminal behavior"); State
v. Stafford, 385 N.W.2d 392, 397 (Minn. Ct. App. 1986) (quoting trial court's
purposes of punishment and deterrence with approval).

(50.) Schoen, 273 N.W.2d at 615 (emphasis added).

(51.) The only other published case interpreting the statute did not mention
retribution when enumerating the state's purposes. See State v. Bonafide, 457
N.W.2d 211,215 (Minn. Ct. App. 1990) (discussing in dictum in context of civil
commitment proceedings that "[t]he three express purposes of criminal
sentencing in Minnesota are (1) to deter others, (2) to rehabilitate those
convicted, and (3) to protect the public through confinement").

(52.) See TEX. PENAL CODE ANN. [sections] 1.02 (West 1973).

(53.) Adams v. State, 577 S.W.2d 717, 729 (Tex. Crim. App. 1979) (en banc),
rev'd on other grounds, 448 U.S. 38 (1980).

(54.) See Miller-El v. State, 782 S.W.2d 892, 897 (Tex. Crim. App. 1990)
("Unless we are to hold that retribution is not a permissible component of a
jury's otherwise unfettered discretion to assess whatever punishment it sees
fit given the circumstances of the offender and the offense, we must conclude
this jury was entitled to hear and consider [victim impact evidence] to inform
that discretion."); see also Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim.
App. 1991) (en banc) (citing Miller-El).

(55.) See, e.g., Dawson v. State, 1998 Tex. App. LEXIS 1638, at *1 n.1 (Tex.
Ct. App. Mar. 19, 1998); Hatchett v. State, 930 S.W.2d 844, 846 (Tex. Ct. App.
1996); Bolden v. State, 923 S.W.2d 730, 734 (Tex. Ct. App. 1996); Harper v.
State, 930 S.W.2d 625,634 (Tex. Ct. App. 1996); Taylor v. State, 1997 Tex.
App. LEXIS 5203 (Tex. Ct. App., Oct. 2, 1997); Adanandus v. State, 866 S.W.2d
210, 224-25 (Tex. Crim. App. 1993).

(56.) Defense attorneys have argued unsuccessfully that they should be allowed
to strike a venireperson for cause where he or she was unable to consider
rehabilitation as a factor in deciding punishment. See Brooks v. State, 894
S.W.2d 843, 846 (Tex. Ct. App. 1995) (explaining that rehabilitation was only
one purpose of punishment, and that punishment included retribution among its
purposes); Henley v. State, 644 S.W.2d 950, 957 (Tex. Ct. App. 1982) (same).
The implication is that jurors may pick and choose which state purposes to
apply. See also Campbell v. State, 685 S.W.2d 23, 24-25 (Tex. Ct. Crim. App.
1985) (demonstrating that both defense and prosecution, as well as the court,
apparently assumed that [sections] 1.02 of Texas Penal Code included
retribution as purpose of punishment, because prosecution sought to find error
in voir dire where the defense attorney described retribution and
rehabilitation as state purposes but failed to mention deterrence. The state
argued that "`[a]ppellant misstated the recognized, statutory, adjudicated
theories of punishment, in that he stated same as being only two [retribution
and rehabilitation], whereas there are basically three [i.e., also
deterrence],'") (citing to TEX. PENAL CODE ANN. [sections] 1.02) (emphasis
added).

(57.) TEX. PENAL CODE ANN. [sections] 1.02 (West 1973).

(58.) Dawson, 1998 Tex. App. LEXIS 1638, at *1 n.1.

(59.) "To prevent crime through the deterrent effect of sentences, the
rehabilitation of convicted persons, and the restraint of convicted persons
when required in the interest of public safety...." ME. REV. STAT. ANN. tit.
17-A, [sections] 1151(1) (West 1983).

(60.) State v. Samson, 388 A.2d 60, 68 (Me. 1978).

(61.) Id. at 67 (emphasis added).

(62.) State v. Plante, 417 A.2d 991, 995 (1980) (citing ME. REV. STAT. ANN.
tit. 17-A, [sections] 1151 (West 1983)).

(63.) ME. REV. STAT. ANN. tit. 17-A, [sections] 1151(8) (West Supp. 1999).
This provision was amended in 1983 to add age and vulnerability of the victim
among the criteria to determine what constituted a grave offense, and again in
1995 to replace vulnerability with a list of specific factors such as race,
color, sex, creed, etc. These criteria could be viewed either as retributive
(offenses compounded by prejudice deserve harsher punishment) or deterrent
(these offenses require harsher punishment in order to deter potential
offenders from targeting such persons).

(64.) The concept of including the harm caused in determining the extent of
culpability is a retributive concern. "The heart of the retribution rationale
is that a criminal sentence must be directly related to the personal
culpability of the criminal offender." Tison v. Arizona, 481 U.S. 137, 149
(1987); see also supra note 20 (discussing MPC's recognition of the role of
harm in punishment).

(65.) See supra Part II.A. (discussing utilitarian nature of the purposes
articulated in the MPC). This provision is found in the section in the MPC on
the criteria for imprisonment ([sections] 7.01), rather than in the purposes
section ([sections] 1.02), but it might simply have been moved to the purposes
section in the Maine statute.

(66.) State v. Gidney, 1989 Me. LEXIS 170 at *7 (Me. 1989).

(67.) See State v. Wilson, 669 A.2d 766, 770 (Me. 1996) (holding that states
may allow evidence of harm caused so that jury may assess defendant's "moral
culpability and blameworthiness"). Clearly, Payne does not require that states
take into account harm caused. See Payne v. Tennessee, 501 U.S. 808, 825
(1991),

(68.) See ALABAMA STAT. [sections] 13A-1-3(5) (Michie 1998) ("To insure the
public safety by preventing the commission of offenses through the deterrent
influence of the sentences authorized, the rehabilitation of those convicted
and their confinement when required in the interests of public
protection....").

(69.) Harris v. State, 352 So.2d 479, 485 (Ada. 1977) (emphasis added).

(70.) 428 U.S. 153 (1976).

(71.) Lidge v. State, 419 So.2d 610, 614 (Ada. Crim. App. 1982) (quoting
Atiyeh v. Capps, 449 U.S. 1312, 1314 (1981) (citing Gregg)).

(72.) See Lidge, 419 So.2d at 614 (citing ALA. STAT. [sections] 13A-1-3(5).

(73.) Alabama has endorsed retribution as an acceptable component of
prosecutorial argument to the jury through a somewhat convoluted process. See
Brown v. State, 686 So.2d 385, 398-99 (Ada. Crim. App. 1995) (remarking that
"arguments for retribution are proper during a capital case") (citing Kuenzel
v. State, 577 So.2d 474 (Ala. Crim. App. 1990)). Although Kuenzel stands for,
among other things, the proposition that a prosecutor may argue against the
exercise of mercy, and that society has a "right of self defense" through
execution of serious criminals, it does not directly support Brown's
conclusion that retribution may be argued. See Kuenzel, 577 So.2d 474 at 498,
503; see also McWilliams v. State, 640 So.2d 982, 1001 (Ala. Crim. App. 1991)
(concluding retribution was a "proper subject of prosecutorial argument")
(citing Holladay v. State, 549 So.2d 122, 131-32 (Ala. Crim. App. 1988). The
Holladay opinion itself cites Brooks v. Kemp, 762 F.2d 1383, 1410 (11th Cir.
1985), for the proposition that the death penalty has a retributive function.

(74.) Price v. State, 683 So.2d 44, 45 (Ala. Crim. App. 1996).

(75.) See People v. Duran, 533 P.2d 1116, 1119 (Colo. 1975) (en banc) (listing
only those purposes in state statute, but not citing the statute).
"Rehabilitation is the best method for preventing crime. However, when
rehabilitation fails, the sentence must serve as a deterrent to others and a
means of protecting society." Id.

(76.) See COLO. REV. STAT. [sections] 18-1-102(1)(b) (1999) ("To forbid the
commission of offenses and to prevent their occurrence through the deterrent
influence of the sentences authorized; to provide for the rehabilitation of
those convicted and their punishment when required in the interests of public
protection...."); see also People v. Marcy, 628 P.2d 69, 73 (Colo. 1981) (en
banc) (likening [sections] 18-1-102(1)(a) and (c) to MPC [sections] 1.02(1)
and (2)) (citing MPC, Tentative Draft No. 2 (1954)).

(77.) See People v. Lewis, 564 P.2d 111, 113 (Colo. 1977) (en banc) (assuming
purposes of sentencing to be punishment, rehabilitation, and protection of the
public, although liberally citing to [sections] 18-1-102).

(78.) See COLO. REV. STAT. [sections] 18-1-102.5 (1)(a) (1999) ("[t]o punish a
convicted offender by assuring the imposition of a sentence he deserves in
relation to the seriousness of his offense"). Although the proportionality
implied in this provision is not necessarily retributive, the desert aspect
is. Perhaps to account for the fact that it had concluded that retribution was
a factor in sentencing even prior to the new law, the Colorado Supreme Court
remarked that the new law "reflects standards for sentencing which have been a
part of our law for a number of years," and did not note that the concern for
desert had been added. People v. Martinez, 628 P.2d 608, 611 n.4 (Colo. 1981)
(en banc). The Colorado Supreme Court has also more recently reiterated that
retribution is a state purpose in capital punishment, referring to Gregg but
not the state statute: "[R]etribution itself is not a forbidden objective of
penology. With respect to this penological purpose, the legislature may well
have concluded that it could not be achieved through less stringent means. `In
part, capital punishment is an expression of society's moral outrage at
particularly offensive conduct.'" People v. Davis, 794 P.2d 159, 173 (Colo.
1990) (en banc) (quoting Gregg).

(79.) Ohio's 1973 statute specified that "[t]he overriding purposes of felony
sentencing are to protect the public from future crime by the offender and
others and to punish the offender. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or both." OHIO REV. CODE
ANN. [sections] 2929.11(A) (West 1997). This provision sounds as if it could
be endorsing a retributive purpose through the phrase "to punish the
offender." However, the statute goes on to say that "[t]o achieve these
purposes," the court should consider incapacitation, deterrence,
rehabilitation, and restitution--retribution is not included in this list of
what the court should consider, as it presumably would be if the use of the
word "punish" in the preceding sentence was meant to be retributive. Id. The
Commentary provided by the Legislative Service Commission to explain the
statute remarked that the "overall effect of the new penalty structure is to
encourage tailoring sentences to fit individual offenders rather than to fit
the type of crime alone," which employs the standard rhetoric of
rehabilitation. OHIO REV. CODE ANN. [sections] 2929, Commentary, Legislative
Service Commission (West 1997). Ohio courts have not resolved the ambiguity in
the statutory wording, although they have concluded that Ohio's sentencing
purposes included retribution, relying primarily upon Gregg. See State v.
Steffen, 1985 Ohio App. LEXIS 9575, *34 (Dec. 11, 1985) (per curiam) ("This is
what the Legislature had in mind when it passed the new death penalty law. The
Legislature was reacting to the demands of the public for retribution and this
is an appropriate case to provide such retribution.") (emphasis in original).
The court added that "[r]etribution is condoned by the United States Supreme
Court as one of the purposes of the death penalty...." Id. (citing Gregg); see
also id. at [sections] 2929.11(B) (requiring punishment to be commensurate
with the seriousness of the offender's conduct and impact upon the victim).

(80.) See Pennell v. State, 604 A.2d 1368, 1374, 1376 (Del. 1992) (approving
trial court's use of retribution as basis for its imposition of punishment and
observing that "[t]he Superior Court judge succinctly and poignantly expressed
the basis for his decision to impose the death penalty"); see also Whalen v.
State, 492 A.2d 552, 563-64 (Del. 1985) (citing Gregg for proposition that the
death penalty is retributive and deterrent); State v. Leroy, 1993 Del. Super.
LEXIS 27, *23 (Jan. 14, 1993) ("[T]he philosophical underpinnings of the
criminal law is [sic] part retributive, part rehabilitative"). Delaware's
utilitarian, nonretributive statutory statement was passed in 1973. See DEL.
CODE ANN. tit. 11, [sections] 201(5) (1995) ("To insure the public safety by
preventing the commission of offenses through the deterrent influence of the
sentences authorized, the rehabilitation of those convicted and their
confinement when required in the interests of public protection."). This
provision, although cited in a few published cases, was not interpreted. See,
e.g., Eaton v. State, 703 A.2d 637, 642 (Del. 1997) (referring to purposes of
criminal law in concluding that bail bond condition was concerned with public
safety, but not interpreting purposes law); LeCompte v. State, 516 A.2d 898,
900 n.3 (Del. 1986) (employing statute's "fair import of their terms"
provision on statutory construction to assist in construing consecutive
sentences provisions and quoting whole statute, but not interpreting/
employing remainder). In 1984, Delaware passed sentencing reform legislation
that specified the purposes that its sentencing commission should consider in
developing sentencing guidelines, namely (1) incapacitation, (2) restoration
of the victim as nearly as possible to pre-offense status, and (3)
rehabilitation. See DEL. CODE ANN. tit. 11, [sections] 6580. This provision,
which is otherwise consistent with the nonretributive statute, also separately
called for a more ambiguous principle of "accountability" of the offender to
the criminal justice system. See id. at [sections] 6580(b).

(81.) Florida adopted a utilitarian, nonretributive statement of purposes in
1974. FLA. STAT. ANN. [sections] 775.012(6) (West 1992) ("To ensure the public
safety by deterring the commission of offenses and providing for the
opportunity for rehabilitation of those convicted and for their confinement
when required in the interests of public protection"). This statute remains in
effect today. The Florida courts occasionally alluded to the section but did
not use it; neither did the court speak in any specific way about purposes for
punishment. See, e.g., Linehan v. State, 442 So.2d 244, 249 (Fla. Dist. Ct.
App. 1983) (citing [sections] 775.012 in explaining that "the purpose of
criminal law is to protect society from behavior that endangers the public
safety"). In 1983, the Florida Sentencing Guidelines Commission introduced an
explicit retributive statement of purposes for the sentencing guidelines. See
FLA. STAT. ANN. [sections] 921.001 (4)(a)(2) ("The primary purpose of
sentencing is to punish the offender. Rehabilitation is a desired goal of the
criminal justice system but is subordinate to the goal of punishment."); see
also In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848
(Fla. 1983) (per curiam) (providing language of proposed role). The Florida
courts have followed and employed this retributive directive. See, e.g., State
v. Lacey, 553 So.2d 778, 779 (Fla. Dist. Ct. App. 1989) (quoting proposed rule
that "[t]he purpose of sentencing is to punish the offender," In re Rules of
Criminal Procedure, 439 So.2d 848, 849 (1983), except that the court quotes
the rule as "the primary purpose of sentencing [remains] to punish the
offender"); Byrd v. State, 531 So.2d 1004, 1007 (Fla. Dist. Ct. App. 1988)
(quoting rule); Isgette v. State, 494 So.2d 534, 535 (Fla. Dist. Ct. App.
1986) (quoting rule).

(82.) 720 ILL. COMP. STAT. 5/1-2(C) (West 1993). Arkansas, Montana, and North
Carolina all adopted a retributive variant of the Illinois formulation.
Arkansas's statutory purposes include a provision, "[t]o punish an offender
commensurate with the nature and extent of the harm caused by the offense,
taking into account factors that may diminish or increase a defendant's
culpability...." ARK. CODE ANN. [sections] 16-90-801(a)(1) (Michie Supp.
1999). North Carolina's statutory statement of purposes uses virtually the
same language: "to impose a punishment commensurate with the injury the
offense has caused, taking into account factors that may diminish or increase
the offender's culpability...." N.C. GEN. STAT. [sections] 15A-1340.12 (1997).
Montana has a similar provision, to "punish each offender commensurate with
the nature and degree of harm caused by the offense...." MONT. CODE ANN.
[sections] 46-18-101(2)(a) (1999). Rather than relating punishment to the
"seriousness of the offense," as Illinois does, which arguably accomplishes
deterrence, these provisions gear punishment to the nature and extent of harm
caused, which is a call for retribution. What little explicit attention state
purposes have received in Arkansas courts indicate that retribution is among
the state purposes. See Hill v. State, 1997 Ark. App. LEXIS 277, *7 (Apr. 23,
1997) (concurring opinion) (recognizing "deterrence and retribution as valid
aims of our penal system"). Montana has not interpreted its statement of
purposes. North Carolina has frequently used its provision on purposes in the
determination of what factors may be considered aggravating for the purposes
of sentencing. See, e.g., State v. Josey, 403 S.E.2d 479, 481 (N.C. 1991)
(harm caused to victim can be treated as an aggravating factor furthering
statutory purposes). The use of harm caused as an aggravating factor is
retributive, although the North Carolina courts have not used that word.

(83.) 720 ILL. COMP. STAT. 5/1-2(C) (West 1993).

(84.) MPC [sections] 1.02(e) & (c) (1985).

(85.) 720 ILL. COMP. STAT. 5/1-2(c) (West 1993).

(86.) MPC [sections] 1.02(2)(e) (1985).

(87.) However, the Committee added that the provision was limited to "the
substantive law" rather than also including, like the MPC section, the
procedural law (subject to a separate section of the Illinois code). See 720
ILL. COMP. STAT. 5/101-1 (West 1993) (providing for general purposes of code
of criminal procedure, such as guarantees of fairness, etc., similar in nature
to some of the provisions of MPC [sections] 1.02).

(88.) 720 ILL. COMP. STAT. 5/1-2, Committee Comments at 7 (emphasis added).
The original Comment on MPC [sections] 1.02 remarked that the model statute
"does not undertake ... to state a fixed priority among the means to [crime]
prevention, i.e., the deterrence of potential criminals and the incapacitation
and correction of the individual offender." MPC [sections] 1.02 cmt. 4
(Tentative Draft No. 2 (1954)).

(89.) ILL. CONST. art. I, [sections] 11. The original 1870 provision was
amended (a little late) to add the clause about restoring the offender to
useful citizenship in 1970, making it consistent with the state statute.

(90.) People v. Maldonado, 608 N.E.2d 499, 509 (Ill. App. Ct. 1993); see also
People v. Milton, 538 N.E.2d 1227, 1236 (Ill. App. Ct. 1989) (same). The court
employs the constitutional provision, and not the statute, in reaching its
interpretation.

(91.) See GA. CODE ANN. [sections] 26-102(4) (1998) ("To prescribe penalties
which are proportionate to the seriousness of crimes and which permit
recognition of differences in rehabilitation possibilities among individual
criminals.").

(92.) While other parts of [sections] 26-102 have been employed by Georgia
courts, there is no citation or explanation of the part of the statute having
to do with substantive purposes.

(93.) Conner v. State, 303 S.E.2d 266, 274 (Ga. 1983).

(94.) However, Conner was decided the year after Enmund v. Florida, 458 U.S.
782 (1982), which did apparently endorse the joint opinion as establishing law
on this point. See infra Part IV (discussion of Enmund).

(95.) See Wellons v. State, 463 S.E.2d 868, 878 (Ga. 1995) ("Pleas for
retribution ... are not improper."); Walker v. State, 327 S.E.2d 475, 484-85
(Ga. 1985) (citing Gregg and Conner for idea that punishment is retributive);
Wilson v. State, 268 S.E.2d 895,900 (Ga. 1980) (concluding the prosecutor's
use of quotations from Gregg "ma[de] a rational argument to the jury for
imposition of the penalty of death"); Potts v. State, 243 S.E.2d 510, 523 (Ga.
1978) (stating that Gregg provides valid statement of death penalty policy).

(96.) Potts, 243 S.E.2d at 523.

(97.) Washington's statement of purposes (part of its 1981 Sentencing Reform
Act (SRA)) included a provision similar to the Illinois formulation. See WASH.
REV. CODE ANN. [sections] 9.94A.010(1) (West 1999) ("Ensure that the
punishment for a criminal offense is proportionate to the seriousness of the
offense and the offender's criminal history...."). However, an additional
provision in the statute gave as a purpose for punishment to "[p]romote
respect for the law by providing punishment which is just." WASH. REV. CODE
ANN. [sections] 9.94A.010(2) (West 1999). This latter provision could be
nonretributive, meaning "just" punishment in the way that the Model Penal Code
uses "just," as in "appropriate." There is a mention of the word "just" in MPC
[sections] 1.02(2)(e), which provides that one of the purposes of punishment
is "to differentiate among offenders with a view to a just individualization
in their treatment." (emphasis added) While the word "just" can imply the
retributive sense of "meet" or "fitting," as in "just deserts," it also has
the meaning of "appropriate" or "individualized." Here, the implication is
that treatment ought to be appropriately tailored to the particular offender,
presumably in the interest of effectiveness, not that punishment should be
just in order to accomplish inherent moral purposes (retribution). However,
the Washington Supreme Court concluded, without explanation, that "[i]n
enacting the SRA, the legislature changed our criminal system from an
indeterminate, rehabilitation-oriented system to a determinate system, having
punishment as its primary purpose." State v. Barnes, 818 P.2d 1088, 1093
(Wash. 1991) (en banc).

(98.) See infra note 137 and accompanying text (giving relevant Oregon
statutory provision).

(99.) See infra part III (discussing Oregon constitutional provision).

(100.) See 18 PA. CONS. STAT. [sections] 104 (1973), Official Comment. This
provision follows MPC [sections] 1.02(a), dealing with procedural objectives
such as giving fair warning.

(101.) See 18 PA. CONS. STAT. [sections] 1325 (1974). For further discussion
of MPC [sections] 7.01, see supra Part II.A. A parallel provision, also
adopted in 1974, 42 PA. CONS. STAT. [sections] 9721(b) (1992), stated that the
sentence should "call for the minimum amount of confinement that is consistent
with the protection of the public, the gravity of the offense, and the
rehabilitative needs of the defendant," also tracking MPC provisions. This
provision was amended in 1982. See infra note 110.

(102.) Commonwealth v. Kostka, 419 A.2d 566, 571 (Pa. Super. Ct. 1980) (per
curiam).

(103.) See id. at 572.

(104.) See id. at 567.

(105.) Id. at 573.

(106.) Id. See also Commonwealth v. Doyle, 418 A.2d 1336, 1344 (Pa. Super. Ct.
1979), in which the sentencing judge stated, "It is my view, and I express it
candidly, that he [the defendant] needs not only deterrence, but that the
interests of society call for a punishment in a series of events of this
nature." In affirming the sentence, the appellate court observed that the
"judge's use of the word `punishment' was unfortunate because ambiguous; the
judge might be understood as expressing the belief that he should wreak some
sort of vengeance upon appellant." Id. However, the appellate court concluded
that the judge probably meant the word to comport with the requirement that
the sentence not "depreciate the seriousness of the crime." Id. at 1344.

(107.) See Commonwealth v. Ostolaza, 422 A.2d 667, 667 (Pa. Super. Ct. 1980)
(involving a defendant convicted of robbery whose case was reversed and
remanded for him to be sentenced instead on lesser included offense of theft,
whereupon trial court imposed same sentence again as it had when it sentenced
defendant for crime of robbery).

(108.) Id. (citing Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977)).

(109.) See Riggins, 377 A.2d at 149 (citing Note, Appellate Review of
Sentences and the Need for a Reviewable Record, 1973 DUKE L.J. 1357, 1375
(1973)).

(110.) See 204 Pa. CODE [sections] 303.11 (2000) (stating that "[t]he
sentencing guidelines provide sanctions proportionate to the severity of the
crime and the severity of the offender's prior conviction record. This
establishes a sentencing system with a primary focus on retribution, but one
in which the recommendations allow for the fulfillment of other sentencing
purposes including rehabilitation, deterrence, and incapacitation.") (emphasis
added). Even prior to this amendment, however, change was afoot in
Pennsylvania. In 1978, another section of the law, setting general standards
for determining sentence, was amended from its former MPC-oriented language,
see supra note 101, to language that stressed retribution: it called for a
sentence that was "consistent with the protection of the public, the gravity
of the offense as it relates to the impact on the life of the victim and on
the community, and the rehabilitative needs of the defendant." 42 PA. CONS.
STAT. [sections] 9721(b) (1992) (emphasis added to show addition). This law
did not apply to the 1980 appellate cases, brought prior to its effective
date.

(111.) A sixth state, North Carolina, also adopted a state constitutional
provision specifying purposes for punishment. However, unlike these other
states, North Carolina adopted a provision which includes retribution as a
purpose along with rehabilitation. The amendment states, "The object of
punishment [is] not only to satisfy justice, but also to reform the offender
and thus prevent crime." N.C. CONST. Art. XI, [sections] 2 (1868). This
provision also enumerates the crimes that may be punished with death
(including, e.g., burglary). See supra note 82 for further discussion on North
Carolina. Illinois also had an old and somewhat ambiguous provision on
purposes. See supra note 89.

(112.) See 16 AM. JUR. 2D Constitutional Law [sections] 9 (1998) ("[A] state's
statutory law is subordinate to the state's constitution, inasmuch as the
state's constitution is the supreme law of the state."). See, e.g., Alaskans
for Legis. Reform v. State, 887 P.2d 960, 962 (Alaska 1994) (per curiam)
(finding term limits referendum invalid because state constitution which sets
no limits on legislative terms is "basic law of the state," and cannot be
modified by statute or initiative); Becky v. Butte-Silver Bow Sch. Dist., 906
P.2d 193, 196 (Mont. 1995) ("Montana Constitution is the supreme law of the
state and preempts contrary statutes or rules....") (citation omitted); Bower
v. Big Horn Canal Ass'n, 307 P.2d 593,597 (Wyo. 1957) (describing state
constitution as "supreme law".)

(113.) For example, Indiana requires a proposed amendment to be passed by a
majority in both houses of the legislature and approved by a majority of the
electors. IND. CONST. art. XVI, [sections] 1 (as amended November 3, 1998).
Some states, such as Montana, require a two-thirds vote of the legislature, in
addition to approval by a majority of the electors. MONT. CONST. Art. XIV,
[sections] 8 (1972).

(114.) See, e.g., Havens v. Board of County Commissioners, 924 P.2d 517, 523
(Colo. 1996) (en banc) ("We have been `guided by a long-standing rule of
constitutional construction that provisions contained in this state's
constitution are to be interpreted as a whole with effect to every term
contained therein.' Wherever possible, we must give effect to every word of
the provision, with an eye to `the object which the document as a whole is
meant to secure.'") (citations omitted); State ex rel. West v. Gray, 74 So.2d
114, 115 (Fla. 1954) (per curiam) ("It is a firmly-settled principle of law
that in `construing and applying provisions of a Constitution, the leading
purpose should be to ascertain and effectuate the intent and object designed
to be accomplished.'") (citations omitted); Chandler v. South Bend Community
Sch. Corp., 313 N.E.2d 915,920 (Ind. Ct. App. 1974) ("A fundamental canon of
construction requires that we presume each word of the [state] Constitution
was carefully chosen and intentionally placed....").

(115.) Utilitarianism was in vogue in the late nineteenth century and early
twentieth century, analogous, although probably not equal to, the role it
played in the 1950s and 1960s. See, e.g., Ex parte Lee, 171 P. 958, 959 (Cal.
1918) (indeterminate sentencing laws "place emphasis upon the reformation of
the offender"); State ex rel. Attorney Gen. v. Peters, 4 N.E. 81, 85 (Ohio
1885) (sentencing act was "evidently prompted by a desire to reform, as well
as punish, to make better those under sentence, as well as to protect
society").

(116.) IND. CONST. art. I, [sections] 18.

(117.) Driskill v. State, 7 Ind. 338, 343 (1855).

(118.) Reformation can be understood as a means of public protection, through
improving criminals and making them less likely to reoffend, but protection of
society is a more general term that includes and usually emphasizes deterrence
and incapacitation over reformation.

(119.) Williams v. State, 430 N.E.2d 759, 766 (Ind. 1982) (citations omitted).

(120.) See, e.g., State ex rel. Schneider v. Kennedy, 587 P.2d 844, 851 (Kan.
1978) ("Prohibiting provisions in a constitution are self-executing to the
extent that anything done in violation of them is void.") (quoting State v.
Nelson, 502 P.2d 841, 846 (Kan. 1972)).

(121.) See Fointno v. State, 487 N.E.2d 140 (Ind. 1986) (affirmed and remanded
to modify sentence).

(122.) See id. at 141 (discussing background of case).

(123.) Id. at 144.

(124.) See id. at 149 (stating grounds for remand).

(125.) See id. at 144 (noting that providing retribution is valid concern of
society).

(126.) Emory v. State, 420 N.E.2d 883, 886 (Ind. 1991).

(127.) Baird v. State, 604 N.E.2d 1170, 1179 (Ind. 1992).

(128.) Harrison v. State, 644 N.E.2d 1243, 1258 (Ind. 1995) (citations
omitted) (reaffirming Driskill v. State, 7 Ind. 338 (1855), and Rice v. State,
7 Ind. 332 (1855) (per curiam) (following Driskill), and reaffirming Fleenor
v. State, 514 N.E.2d 80 (Ind. 1987) (relying on Williams)); see also supra
note 119 and accompanying text (discussing Williams).

(129.) The Oregon provision reads: "Laws for the punishment of crime shall be
founded on the principles of reformation, and not of vindictive justice." OR.
CONST. art, I, [sections] 15 (1859).

(130.) State v. Dinkel, 579 P.2d 245, 250 n.2 (Or. Ct. App. 1978). The court
also cites Brown v. Multnomah County Dist. Ct., 570 P.2d 52, 59 n.13 (Or.
1977) (en banc), which observed that "retribution is purposive only in the
sense of a legislative aim to reflect the outrage of the public or the victims
of the condemned acts. This aim, in turn, is confined by the constitutional
prohibition against vindictive justice." Id. at 59. The state supreme court
questioned the state constitutional provision, but it did not directly
undermine its application. The court explained, "The 1859 Constitution commits
the state to the hopeful aim of `reformation,' whatever the more recent
pessimism on that score." Id. at 59 n.13.

(131.) See State v. Grass, 599 P.2d 1203, 1204 (Or. Ct. App. 1979).

(132.) See id. at 1203.

(133.) Id.

(134.) Id. at 1204.

(135.) Id. at 1204 n.2 ("Because we remand on other reasons we do not consider
the constitutional question suggested in n.2 of State v. Dinkel....").

(136.) See supra note 130 (noting Oregon Supreme Court questioned state
constitutional provision but continued to apply it).

(137.) OR REV. STAT. [sections] 161.025 (1993) (specifying purposes including
(1)(a): "To insure the public safety by preventing the commission of offenses
through the deterrent influence of the sentences authorized, the correction
and rehabilitation of those convicted, and their confinement when required in
the interests of public protection," and (f): "To prescribe penalties which
are proportionate to the seriousness of offenses and which permit recognition
of differences in rehabilitation possibilities among individual offenders.").

(138.) Georgia, Illinois, and Washington enacted laws with similar wording,
and all three of these states found retribution to be among state purposes for
punishment. See supra Part II.B.2 (discussing "proportionate to seriousness"
provision included in those statutes).

(139.) Moreover, Dinkel was already being misunderstood by at least one member
of the state appellate courts as endorsing all four purposes of punishment,
despite the caveat footnote. See State v. Larsen, 607 P.2d 212, 215 (Or. Ct.
App. 1980) (en banc) (Tanzer, J., dissenting) ("We should presume, as in all
cases, that the trial court considered the objectives of the criminal law
summarized in Dinkel, i.e., rehabilitation, public protection, deterrence and
retribution.") (emphasis added). Judge Tanzer also dissented in Grass. See
Grass, 599 P.2d at 1205.

(140.) "Laws for the punishment of crime shall be founded on these principles:
protection of society, personal responsibility, accountability for one's
actions and reformation." OR. CONST. art. I, [sections] 15 (1996). "Personal
responsibility," in particular, echoes retributive notions of blame and
culpability, as perhaps does "accountability."

(141.) Montana's state constitution provides that "[l]aws for the punishment
of crime shall be founded on the principles of prevention and reformation."
MONT. CONST. art. II, [sections] 28 (1889 and 1972). Wyoming's state
constitution similarly says that "[t]he penal code shall be framed on the
humane principles of reformation and prevention." WYO. CONST. art. 1,
[sections] 15 (1890).

(142.) See supra note 25 (discussing general principle of interpretation that
mention of one thing implies exclusion of another).

(143.) See supra note 4 (discussing criticisms of retribution).

(144.) The Wyoming Supreme Court, without explanation, found all of the
"generally recognized" purposes of punishment, including retribution, to be
entirely in accordance with the state constitutional provision. See Wright v.
State, 670 P.2d 1090, 1093 (Wyo. 1983). When the court actually explained how
each of the purposes is consistent with the provisions of the constitution, it
omitted consideration of retribution in its explanation. Id. Ironically, the
court minimized the importance of reformation, observing, "[r]ehabilitation is
a laudable purpose, but there has been considerable disillusionment with it
the last ten to fifteen years." Id. In a later case, the court gave some
explanation of its reading of the state constitution:
The constitutional provision upon which [the defendant] relies is not so
narrowly drawn that we would be justified in concluding that the only
factors which the court may consider in the imposition of sentence are
prevention and rehabilitation. The provision speaks to the penal code, not
to sentencing, and we are unable to detect any intent on the part of the
Constitutional Convention to so limit the discretion of sentencing judges
in criminal cases.

Jahnke v. State, 692 P.2d 911, 930 (Wyo. 1984). Even if the constitutional
provision is limited to being an admonition to the legislature, the provision
was and is the only specific statement of purposes for criminal punishment
found in state law. To employ "discretion" to assume contrary purposes, such
as retribution, ignores existing constitutional guidance on state purposes and
substitutes other contradictory ones without compelling justification.

The Wyoming Supreme Court also viewed the U.S. Supreme Court's decision in
Gregg as playing a role in establishing state purposes for punishment. In
considering a prosecutorial argument to the jury that called for retribution,
the court, citing Gregg, included among the purposes for punishment
"retribution and deterrence of capital crimes by prospective offenders." Gregg
v Georgia, 428 U.S. 153, 183 (1976). "As said in Gregg, `capital punishment is
an expression of society's outrage at particularly offensive conduct.' The
prosecutor was expressing that fear and outrage of the public." Hopkinson v.
State, 632 P.2d 79, 166 (Wyo. 1981).

(145.) In Montana, the effective nullification of the state constitutional
provision occurred through the actions of the state legislature. At first, the
state legislature promulgated a statutory statement of purposes that could be
read as consistent with the state constitution. It called for "protect[ing]
society by preventing crime through punishment and rehabilitation of the
convicted." MONT. CODE ANN. [sections] 46-18-101 (1803) (cited in State v.
Carroll, 716 P.2d 212, 213 (Mont. 1986)). "Preventing crime through
punishment" suggests deterrent and incapacitative effects. Then, in 1991, the
legislature amended the statute to establish a purpose of "punish[ing] each
offender commensurate with the nature and degree of harm caused by the
offense." MONT. CODE ANN. [sections] 46-18-101 (2)(a) (1999). This concept of
"degree of harm caused by the offense" is retributive. The Montana Sentencing
Commission's Comments state that the amended statute "expresses the purpose of
sentencing which is not merely to punish but is oriented toward
rehabilitation." Sentencing Commission Comments, Source Model Sentencing Act,
Section I (emphasis added). In other words, one purpose is indeed to punish,
just not the so-called "orienting" purpose. This statute calling for punishing
the offender based on harm caused does not appear to be "framed on the humane
principles of reformation and prevention," whatever the Comment may say about
the statute's "orientation." Five years later, suggesting that the Montana
legislature had indeed intended the statutory provision to be retributive (and
thus that the change had all along violated the state constitution), a
legislatively proposed constitutional amendment was ratified which read: "Laws
for the punishment of crime shall be founded on these principles: protection
of society, personal responsibility, accountability for one's actions and
reformation." MONT. CONST. art. II, [sections] 28 (1996) (emphasis added).
Retribution is evoked here in the idea of "personal responsibility."

(146.) ALASKA CONST. art. I, [sections] 12 (1959).

(147.) State v. Chaney, 477 P.2d 441, 444 (Alaska 1970) (citation omitted).

(148.) See supra note 5 (noting that expression of condemnation is
retributive).

(149.) ALASKA STAT. [sections] 12.55.005(6) (1978) (emphasis added).

(150.) The legislature also altered the court's reference to "community
condemnation of the offender" to "community condemnation of the criminal act,"
a change that is difficult to parse. ALASKA STAT. [sections] 12.55.005(6).
Condemning the act rather than the actor sounds less retributive, although
when sentencing it would be difficult to condemn the act without condemning
the actor.

(151.) Kelly v. State, 622 P.2d 432, 435 (Alaska 1981). In this case, the
state supreme court considered the conclusion of the trial court that "[u]nder
[the Alaska] Constitution, sentencing goals should be purely utilitarian, i.e.
the prevention of future crime and not retributive." Id. at 434. The state
supreme court objected to the trial court's decision not to consider the
seriousness of the crime as a factor in enhancing or limiting sentence, on the
ground that to do so was retributive; the supreme court concluded that
"seriousness is an indicator of need for deterrence." Id. at 435.

(152.) Karr v. State, 686 P.2d 1192, 1194 n.4 (Alaska 1984). See also Leuch v.
State, 633 P.2d 1006, 1012 (Alaska 1981) (describing retribution as "an
impermissible consideration in sentencing"); Smothers v. State, 579 P.2d 1062,
1064 (Alaska 1978) ("[T]he use of retribution as a goal of sentencing is
inconsistent with the mandate of [the constitutional provision]....").

(153.) Kelly, 622 P.2d at 434 (quoting lower court's explanation).

(154.) See id. at 435.

(155.) See supra note 25 (discussing rules of statutory construction).

(156.) "Criminal administration shall be based upon ... the need for
protecting the public, community condemnation of the offender ... and the
principle of reformation." ALASKA CONST. art. I, [sections] 12 (1994)
(emphasis added).

(157.) See, e.g., LAWRENCE FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY
295-304 (1993); see also id. at 296 (noting that prior to twentieth century
"underdogs and losers rarely challenged the power of law, and even more rarely
succeeded. The case law, both federal and state, on constitutional rights of
defendants was fairly skimpy.") (footnote omitted).

(158.) Professor George Fletcher has implicitly criticized the whole project
of codifying purposes, and the experience in the states suggests that it is
not without its problems. He suggests that "[p]hilosophical truths are ...
beyond the competence of the legislature. There is something ridiculous about
a legislature intermeddling in a philosophical dispute -- say, by deciding
whether Immanuel Kant's moral theory is superior to Jeremy Bentham's." George
Fletcher, Truth in Codification, 31 U.C. DAVIS L. REV. 745, 745-746 (1998).
Fletcher complains that one of the "dogmas" of the MPC is its aim of
"[d]efin[ing] as many concepts as you can -- whether you are competent to do
so or not." George Fletcher, Dogmas of the Model Penal Code, 2 BUFF. CRIM. L.
REV. 3, 4 (1998). The MPC's definition of purposes did indeed make a choice
between Bentham and Kant. Whether that choice was "ridiculous" or not, it was
certainly unsuccessful, and the lack of success may, as Fletcher suggests,
reflect the unresolved nature of the philosophical question of what is the
purpose of punishment. But whether any penal code actually specifies purposes
or not, they still operate in the system. So long as judges and juries have
any decision-making power or discretion over sentencing, punishment will be
apportioned based on some sense of its goals. Their absence from law would
merely move them underground where they would operate unexamined and less
consistently. Further, Professor Paul H. Robinson replies that Fletcher's view
of philosophical truths contains as an unarticulated assumption that
each of the concepts or rules he wants undefined in the code has some
natural, intrinsic meaning of its own, a meaning that philosophers are
working to discover and explicate. That assumption may be correct if one is
a retributivist, as Professor Fletcher appears to be. But it is not
necessarily correct if one is not. Under a utilitarian approach, the proper
definition of a concept or formulation of a rule may depend on the
particular conditions within the criminal justice system and society at the
time.

Paul H. Robinson, In Defense of the Model Penal Code: A Reply to Professor
Fletcher, 2 BUFF. CRIM L. REV. 25, 33 (1998). It is just such a perspective
that may have been a motivating factor in the decision of the drafters of the
MPC to make purposes an explicit part of the Model Code; explicitness makes
the examination of the fit between objectives and achievement easier (to the
extent that it can be called easy at all), more focused, and perhaps more
conscientiously pursued.

(159.) In Massachusetts, the state supreme court observed in Commonwealth v.
Power, 650 N.E.2d 87 (Mass. 1995), that the goals in sentencing are
"punishment, deterrence, protection of the public, and rehabilitation." Id. at
90. Power cited to Commonwealth v. Goodwin, 605 N.E.2d 827, 831 (Mass. 1993)
which cited to Cepulonis v. Commonwealth, 427 N.E.2d 17, 21 (Mass. 1981).
Cepulonis itself cited to a concurrence in Commonwealth v. O'Neal, in which
Chief Justice Tauro remarked as follows:
It is not difficult to identify the discrete interests thought to be served
by our penal policy. The Commonwealth [attorney] identifies three: areas of
vital interests: (1) saving lives, (2) protecting citizens from crimes of
violence, and (3) ensuring justice and diminishing recourse to vigilantism.
Translated into more familiar jargon of penology and corrections, these
interests are, respectively, (1) deterrence, (2) isolation/incapacitation,
and (3) retribution/moral reinforcement.

339 N.E.2d 676, 681 n.11 (Mass. 1975) (Tauro, C.J., concurring) (footnote
identifying reformation as additional purpose, in non-capital cases, omitted)
(emphasis added).

(160.) In Wisconsin, the state supreme court asserted that "[t]he criminal
statutes ... are ... designed to accomplish the objectives of deterrence,
rehabilitation, retribution, and segregation." State v. Szulczewski, 574
N.W.2d 660, 664 (Wis. 1998). The court based its assertion upon the purposes
listed in a criminal law treatise. See id. at n.10 (citing WAYNE R. LAFAVE &
AUSTIN W. SCOTT, JR., 1 SUBSTANTIVE CRIMINAL LAW [sections] 1.5, at 30-36
(1986)).

(161.) State v. Young, 853 P.2d 327, 353 (Utah 1993) ("jury may legitimately
consider ... retribution in the penalty phase hearing"). See also State v.
Gardner, 947 P.2d 630, 635 (Utah 1997) (citing to Robert A. Pugsley,
Retributivism: A Just Basis for Criminal Sentencing, 7 HOFSTRA L. REV. 379,
381 (1979)).

(162.) The Rhode Island Supreme Court explained:
The desire to exact "deserving" punishment from criminal offenders is an
expression of the basic human instinct for retribution. With regard to
criminal law, this instinct must, by necessity, be channeled into the
sentencing process ... [citing Stewart's concurrence in Furman v. Georgia,
408 U.S. at 308]. The Legislature's decision that a mandatory life sentence
is an appropriate sanction for deliberate homicide reflects the community's
belief that it is an appropriate response for the taking of a human life.

State v. Vaccaro, 403 A.2d 649, 652 (R.I. 1979). Rhode Island's adoption of
retribution as a purpose for punishment is thus grounded upon a concurrence in
Furman and an unsupported inference of the legislature's motives.

(163.) Purpose may be discerned to some extent by context. See, e.g., United
Sav. Assoc. of Texas v. Timbers of Inwood Forest Assoc., 484 U.S. 365, 371
(1988) ("A provision that may seem ambiguous in isolation is often clarified
by the remainder of the statutory scheme...."); United States v. Cooper Corp.,
312 U.S. 600, 607 (1941) ("The scheme and structure of the legislature are ...
important to proper ascertainment of its purpose and intent.").

(164.) Purpose is the sine qua non of statutory interpretation. "For the
interpretation of statutes, `intent of the legislature' is the criterion most
often cited." NORMAN SINGER, 2A SUTHERLAND'S STATUTES AND STATUTORY
CONSTRUCTION [sections] 45.05 (4th ed. 1984).

Where intent is expressed in an explicit statement of purpose, courts construe
in accordance with that statement. As the Supreme Court observed in United
States v. Public Util. Comm'n of Cal., 345 U.S. 295 (1953), "[w]here the
language and purpose of the questioned statute is clear, courts, of course,
follow the legislative directive in interpretation." Id. at 315. See also
HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE
MAKING AND APPLICATION OF LAW 1377 (William N. Eskridge, Jr. & Philip P.
Frickey eds., 1994) ("A formally enacted statement of purpose in a statute
should be accepted by the court if it appears to have been designed to serve
as a guide to interpretation, is consistent with the words and context of the
statute, and is relevant to the question of meaning at issue.").

Courts have recognized this principle in the context of statements of purpose
pertaining to the penal code. See, e.g., People v. Edwards, 598 P.2d 126, 129
(Colo. 1979) (en banc) ("In undertaking sentence review, we are guided by the
General Assembly's declaration of its purposes in enacting the criminal
code."). For some discussion of the role in purpose in other contexts, see
Edward O. Correia, A Legislative Conception of Legislative Supremacy, 42 CASE
W. RES. L. REV. 1129, 1160-1162 (1992) (giving legislative perspective on
importance of purposes); James P. Nehf, Textualism in the Lower Courts:
Lessons from Judges Interpreting Consumer Legislation, 26 RUTGERS L.J. 1,
46-47 (examining 169 consumer cases and finding that in 28% of cases courts
were using as interpretive aids statements of purposes appearing in the
statute); Daniel J. Steinbock, Interpreting the Refugee Definition, 45 UCLA L.
REV. 733, 770-774 (1998) ("It is becoming increasingly clear in United States
law that the structure and purposes of a statute, often confirmed by its
legislative history, are important guides to its meaning."). Still, many
commentators see purposes as needing to play a more important role. See, e.g.,
Gunther, infra note 183, at 21; Susan Rose-Ackerman, Comment: Progressive Law
as Economics and the New Administrative Law, 98 YALE L.J. 341, 367 (1988);
Miller, supra note 1.

(165.) See supra note 112 (discussing primacy of state constitutional
provisions).

(166.) See, e.g., State v. Arnett, 579 P.2d 542, 555 (Ariz. 1978) (applying
rule of statutory construction to penal statute); People v. Kahanic, 241 Cal.
Rptr. 722, 725 (Cal. 1987) (same); State v. Turner, 864 P.2d 235, 241 (Mont.
1993) (same); State v. Williams, 729 A.2d 416, 418 (N.H. 1999) (same); State
v. Crumal, 633 P.2d 1313, 1316 (Or. 1981) (same); Commonwealth v. Sacco, 531
A.2d 1, 2 (Pa. 1987) (same).

(167.) Gregg v. Georgia, 428 U.S. 153 (1976).

(168.) Id. at 183.

(169.) See supra Part II.B.1 (discussing reliance upon Gregg by Alabama,
Texas, and Ohio courts).

(170.) Even Gregg's use in states with statutory retributive purposes for
punishment gives cause for concern when the timing of the adoption of the
relevant statute coincides sufficiently with Gregg that it may have been
misperceived by the state legislature as controlling. For example, Arizona's
retributive statutory statement of purposes was passed in 1978, two years
after Gregg, making it difficult to be certain that the legislature itself was
not operating under the mistaken belief that Gregg controlled. Further, the
state's highest court has cited Gregg as support for the idea that the state
purposes for punishment are retribution and deterrence. See State v. Gretzler,
659 P.2d 1, 6 (Ariz. 1983) (eh banc) (neglecting to cite state's own similar
legislative statement of purposes).

(171.) See supra Part II. Cf. McKenzie v. Osborne, 640 P.2d 368, 382 (Mont.
1981) (declining to apply Gregg because establishing purposes for punishment
is within purview of the state legislature).

(172.) Gregg, 428 U.S. at 183 (citing People v. Anderson, 493 P.2d 880, 896
(1972)).

(173.) For example, punishing blacks more harshly than whites, based on a
purpose of keeping blacks "in their place," would not be a permissible
purpose.

(174.) Dombrowski v. Pfister, 380 U.S. 479, 484 (1965).

(175.) Hoag v. New Jersey, 356 U.S. 464, 468 (1958).

(176.) Addington v. Texas. 441 U.S. 418, 431 (1979).

(177.) See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (quoting
Engle); Engle v. Isaac, 456 U.S. 107, 128 (1982) ("The States possess primary
authority for defining and enforcing the criminal law."); see also United
States v. Ron Pair Enter., 489 U.S. 235, 245 (1989) (regarding "basic
principle of our federalism" as "the States' interest in administering their
criminal justice systems free from federal interference").

(178.) The joint opinion cautioned against reliance upon the purpose of
incapacitation for capital punishment, by only mentioning it only in a
footnote and with neither endorsement or disapproval. See Gregg, 428 U.S. at
183 n.28. The opinion also undermined deterrence by calling evidence for it
"inconclusive." Id. at 185-186.

(179.) The three-justice joint opinion in Gregg was also used as the
definitive articulation of state purposes in a number of states that lacked
their own statutory statements of purpose, particularly in cases involving the
death penalty. See State v. Landreth, 788 P.2d 458, 461 (Idaho 1990)
("Although the function of retribution may be unappealing to many, we
recognize it as essential to an ordered society that expects its citizens to
rely on the legal processes rather than on self-help to vindicate their
wrongs. [citing Gregg, 428 U.S. at 183] Accordingly, we reaffirm the
legitimacy of retribution as an appropriate factor in determining a sentence
to be imposed."); State v. Wilson, 685 So.2d 1063, 1073 (La. 1996) ("Two
legitimate goals of punishment are retribution and deterrence.") (citing
Gregg); Colvin-El v. State, 630 A.2d 725, 741 (Md. 1993) (remarking that "this
Court quoted approvingly the passage from Gregg ... thereby recognizing that
retribution and deterrence underlie the Maryland death penalty statute");
State v. Antwine, 743 S.W.2d 51, 71 (Mo. 1987) (eh banc) (indicating that the
purposes of the death penalty are generally regarded to be retribution,
deterrence, and incapacitation) (citing Gregg and State v. Bolder, 635 S.W.2d
673, 683 (Mo. 1982) (en banc) (citing Gregg)); Naovarath v. State, 779 P.2d
944, 947 (Nev. 1989) (indicating that "imprisonment is generally accepted as
serving three moral and social purposes: retribution, deterrence of
prospective offenders, and segregation of offenders from society") (citing
Gregg for purpose of retribution); Pellegrini v. State, 764 P.2d 484, 487
(Nev. 1988) (per curiam) ("Retribution and deterrence are widely accepted as
the underlying rationale for the enactment of the death penalty.") (citing
Gregg); State v. Farrow, 386 A.2d 808, 812 (N.H. 1978) ("Retribution ...
remains a societal goal.") (citing Gregg).

The South Dakota Supreme Court has repeatedly identified Gregg as setting the
standards for what its state courts must consider when imposing sentence:
"When the trial court imposes a sentence, it must keep in mind the commonly
accepted goals of punishment, namely: 1) retribution; 2) deterrence, both
individual and general; and 3) rehabilitation." State v. Raymond, 563 N.W.2d
823, 830 (S.D. 1997) (citing Gregg); see also State v. Pulfrey, 548 N.W.2d 34,
38 (S.D, 1996) (same); State v. Ramos, 545 N.W.2d 817, 821 (S.D. 1996) (same);
Bult v. Leapley, 507 N.W.2d 325, 327 (S.D. 1993) (same).

Both before and after Washington passed its own statement of purposes as part
of a sentencing reform law, the state court of appeals seemed to think that
Gregg specified state law on this matter. In 1978, before the reform
legislation, it said regarding a sentence of life imprisonment, "As the court
noted in Gregg, retribution remains a societal goal. This sentence
accomplishes that goal." State v. Forrester, 587 P.2d 179, 188 (Wash. 1978)
(citation omitted). Even after the reform legislation in 1981, Gregg continued
to be cited for the proposition that punishment was both retributive and
deterrent. See e.g., Engberg v. State, 686 P.2d 541, 551 (Wash. 1984).

(180.) The statute is codified at GA. CODE ANN. [sections] 16-1-2(4) (1998).

(181.) See, e.g., McGowan v. Maryland, 366 U.S. 420, 425-426 (1971)
("Legislatures are presumed to have acted constitutionally ... and their
statutory classifications will be set aside only if no grounds can be
conceived to justify them.").

(182.) See discussion infra Part II.B.2 (discussing Georgia's interpretation
of its statement of purposes).

(183.) Gerald Gunther, Foreword: In Search of Evolving Court Doctrine on a
Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 21
(1972).

(184.) Id. at 21-22.

(185.) The Court's treatment of rehabilitation may have also affected state
behavior. Initially, the Court gave lip service to the value of
rehabilitation. In Williams v. New York, 337 U.S. 241 (1949), a case
considering a Due Process challenge to a particular sentencing, the Court went
so far as to assert that retribution was "no longer the dominant objective of
the criminal law." Id. at 248. Instead, the Court announced, "Reformation and
rehabilitation of offenders have become important goals of criminal
jurisprudence." Id. See also Morissette v. United States, 342 U.S. 246, 251
n.5 (1952) (observing, in a federal case, that consideration for mental
element in crime "has afforded the rational basis for a tardy and unfinished
substitution of deterrence and reformation in place of retaliation and
vengeance") (citing Williams).

References to rehabilitation, however, all but disappeared from the Court's
later opinions, and not solely because it was mostly considering death penalty
cases. Rehabilitation, the Court asserted in 1979, had diminished as a purpose
of punishment because "anticipations and hopes for rehabilitation programs
ha[d] fallen far short of expectations of a generation ago." Greenholtz v.
Nebraska Penal Inmates, 442 U.S. 1, 13 (1979). Ten years later, in finding the
Federal Sentencing Guidelines to the, constitutional, the Court observed that
"[r]ehabilitation as a sound penological theory came to be questioned and, in
any event, was regarded by some as an unattainable goal for most cases."
Mistretta v. United States, 488 U.S. 361,365 (1989). For this proposition, the
Court cites NORVAL MORRIS, THE FUTURE OF IMPRISONMENT 24-43 (1914) and FRANCIS
ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL (1981). These citations are
odd, given that both works argue that rehabilitation had been frustrated,
rather than being "unattainable." Professor Morris's book objects to the
coercive tactics of prison rehabilitative models; it is not a study or survey
of the rejection of the idea of rehabilitation. The Court does not give a page
citation for Professor Allen's book, but it may have had in mind Allen's idea
that "[i]n a remarkably short time a new orthodoxy has been established
asserting that rehabilitative objectives are largely unattainable and that
rehabilitation programs and research are dubious or misdirected." ALLEN, at
57. Allen, however, did not argue that this new orthodoxy was correct; rather,
Allen states that "the decline of the rehabilitative ideal in the 1970s cannot
be explained satisfactorily as the consequence of rational cases against it."
Id. at 10. The Court's remarks depreciating rehabilitation, like those
championing retribution, may have played a role in chilling or further
chilling state support for that purpose.

(186.) 458 U.S. 782 (1982).

(187.) Id. at 787.

(188.) Id. at 798 (citations omitted). The Court decided that deterrence was
not achieved in Enmund because of the rarity with which robbery resulted in
homicide and the likelihood that a robber who did not intend to kill would be
deterred by a sentence of death for felony-murder. Id. at 799-800. The Court
also reasoned that retribution was not achieved, because retribution calls for
just deserts, and it was not just deserts to execute a robber who did not
intend to kill. Id. at 800-801. Cf. Tison v. Arizona, 481 U.S. 137 (1987)
(holding that felony murder can, consistent with the Eighth Amendment, justify
a sentence of death where the defendant showed major participation in the
felony committed and reckless indifference to human life).

(189.) See FLA. STAT. ch. 775.012(6) (1974). See discussion supra Part II.B.1.

(190.) See supra note 181 (indicating that state laws will be set aside only
if no grounds can be conceived to justify them).

(191.) 468 U.S. 447 (1984). In the case, the Court considered whether a death
sentence was required to be imposed by a jury as opposed to a judge. See id.
at 449.

(192.) Id. at 461 (citing Gregg).

(193.) Id. at 462.

(194.) Id. at 461.

(195.) The Court's relative lack of interest in deterrence may have reflected
the logistical difficulties of judicial evaluation of the data. Gregg, 428
U.S. at 186. Interestingly, the very fact that deterrence is an empirically
testable purpose, whereas retribution is not, creates a barrier to judicial
attention that does not apply to retribution.

(196.) Indeed, some members of the Court were evidently concerned about the
strong statements the Court was making on the purposes of punishment. In a
footnote in her dissent in Enmund, Justice O'Connor observed that "[a]t their
core, these conclusions are legislative judgments regarding the efficacy of
capital punishment as a tool in achieving retributive justice and deterring
violent crime." 458 U.S. at 826 n.42 (emphasis added). She thus implied that
the Court was impinging upon the prerogative of state legislatures by going
into the business of vetting the efficacy of punishments at achieving
permissible purposes. Justice Kennedy's concurrence in Harmelin v. Michigan,
501 U.S. 957 (1991) similarly observed:
Determinations about the nature and purposes of punishment for criminal
acts implicate difficult and enduring questions respecting the sanctity of
the individual, the nature of law, and the relation between law and social
order.... [T]he responsibility for making these fundamental choices and
implementing them lies with the legislature.

Id. at 998 (concurring in part and concurring in the judgment) (citation
omitted). In Harris v. Alabama, 513 U.S. 504 (1995), Justice Stevens, the lone
dissenter, argued that capital sentencing decisions served no purpose of
rehabilitation, incapacitation, or deterrence. See id. at 517 (1995) (Stevens,
J., dissenting); see also id. at 510 (characterizing Justice Stevens' argument
in dissent). The case involved the question whether the failure of Alabama law
to specify the weight to be given to an "advisory jury verdict" permitted
arbitrary imposition of the death penalty. Id. at 505. Justice O'Connor,
writing: for the majority, responded by opining, "[w]hat purpose is served by
capital punishment" is a "matter[] over which we, as judges, have no
jurisdiction. Our power of judicial review legitimately extends only to
determining whether the policy choices of the community, expressed through its
legislative enactments, comport with the Constitution." Id. at 510. Again,
Justice O'Connor returned to the theme she had touched upon in her dissent in
Enmund, that the Court was not to conduct an inquiry into which punishments
served permissible purposes. And, here, she even spoke for the decisive
majority. The Court thus seemed to retreat both from the articulation of
purposes and the weighing of punishments in terms of permissible purposes. But
even if the Court has retreated, which remains to be seen, the harm to
federalism had already been done.

(197.) Its statute boldly states, "The legislature finds and declares that the
purpose of imprisonment for crime is punishment." CAL. PENAL CODE [sections]
1170(a)(1) (Deering 1993). However, [sections] 1170 also waters down the
effect of this forceful statement by incorporating judicial sentencing rules
as well, stating, "In sentencing the convicted person, the Court shall apply
the sentencing rules of the Judicial Council." CAL. PENAL. CODE [sections]
1170(a)(3). Thereby, deterrence, rehabilitation, and incapacitation are also
included as purposes, notwithstanding the language of [sections] 1170. See,
e.g., People v. Thomas, 151 Cal. Rptr. 483, 48 (Cal. Ct. App. 1979)
(interpreting application of Rule 410 of the California Rules of Court,
calling for consideration of factors in addition to retribution).

(198.) See supra note 110.

(199.) In addition to stating that deterrence is one of the purposes of
punishment, the Arizona legislature also provided that punishment was intended
"[t]o impose just and deserved punishment on those whose conduct threatens the
public peace." ARIZ. REV. STAT. ANN. [sections] 13-101(6) (West 1989) (adopted
1978). The language of "desert" makes the retributive intent clear.

North Dakota adopted for its statement of purpose all of the usual purposes of
punishment, including retribution, expressed as the "vindication of public
norms by the imposition of merited punishment." N.D. CENT. CODE [sections]
12.1-01-02(1) (1997) (adopted 1973). Public norms of merited punishment could
refer to punishment that the public thought sufficient to be deterrent, but
the term "merit" tends to connote retribution. Furthermore, North Dakota also
added to the adopted MPC provision pertaining to the purposes of the penal
code "[t]o safeguard conduct that is without guilt from condemnation as
criminal" an addendum that reads "and to condemn conduct that is with guilt as
criminal." N.D. CENT. CODE. [sections] 12.1-01-02(4). "Condemnation" also has
strong associations with retributive theory. See supra note 5 and accompanying
text.

Tennessee's statutory purposes stated that "[e]very defendant shall be
punished by the imposition of a sentence justly deserved in relation to the
seriousness of the offense." TENN. CODE ANN. [sections] 40-35-102(1) (Michie
1997) (adopted 1989). Courts in Tennessee have treated retribution as among
the purposes of punishment, although upon the basis of the Supreme Court's
decision in Gregg. See, e.g., State v. Middlebrooks, 840 S.W.2d 317, 340
(Tenn. 1992) (endorsing retribution and citing Gregg); State v. Black, 815
S.W.2d 166, 190 (Tenn. 1991) (same).

(200.) Hawaii's penal code included a sentencing purpose of "provid[ing] just
punishment for the offense." HAW. REV. STAT. [sections] 706-606(2)(a) (1993)
(adopted 1972). It is possible to read "just" in this context as utilitarian,
in the manner in which the MPC does so, although it is not the most apparent
and likely reading. See supra note 97. The state supreme court has assumed
that retribution is one of the state's purposes for punishing. See, e.g.,
State v. Cornelio, 935 P.2d 1021, 1039-40 (1997).

New York's statement of purposes endorsed as one of the purposes for
punishment "[t]o provide for an appropriate public response to particular
offenses, including consideration of the consequences of the offense for the
victim, including the victim's family, and the community." N.Y. CRIM. LAW
[sections] 1.05(5) (McKinney 1998) (adopted 1982). This provision suggests
retribution for harm caused, and courts in New York have assumed retribution
as among the state's purposes for punishment. See, e.g., People v. Battease,
509 N.Y.S.2d 39, 40 (1986).

See also supra note 82 (discussing of Arkansas, Montana, and North Carolina).

(201.) See supra note 106 and accompanying text.

(202.) See supra note 131 and accompanying text.

(203.) 458 U.S. 782 (1984). Justice Stevens' opinion in the denial of
certiorari in State v. Lackey, 514 U.S. 1045 (1995) suggested that further
action in this area was possible. Lackey involved an inmate who, at the time
of the petition, had been on death row for 17 years. Id. at 1045. Stevens
indicated in his opinion that review should be postponed, subject to address
by other courts, but that the facts suggested that the recognized purposes of
capital punishment, retribution and deterrence, were not well-served, if
served at all, by the imposition of death in such cases. Id. Subsequent cases
with similar facts have not, however, provoked review by the Court on this
basis; most recently, certiorari was denied in two cases over Justice Breyer's
objections. See Knight v. Florida, 120 S.Ct. 459 (1999) (Breyer, J.,
dissenting); Moore v. Nebraska, 120 S.Ct. 459 (1999) (Breyer, J., dissenting).

(204.) See supra Part III.A and accompanying notes (discussing Indiana law).

(205.) See MPC [sections] 1.02(2)(c) (stating as one of purposes "to safeguard
offenders against excessive, disproportionate or arbitrary punishment," but on
a nonretributive theory). This provision is intended to act as a principle of
limitation rather than of retributive justification. Proportionality here
differs from the retributive purpose of "fitting punishment" in that it does
not seek to discover the morally suitable punishment but the one sufficient to
accomplish the iterated utilitarian purposes, and no more. Along these lines,
Professor Louis Schwartz, the Reporter for Part II of the MPC, observed that
"[t]he Code is addressed more to the punishers than to those who might be
punished; its purpose is to constrain punishment." Model Penal Code Conference
Transcript -- Discussion One, 19 RUTGERS L.J. 569, 572 (1988) (emphasis
added). "Proportionate" punishment does not, then, aim at retribution but at
parsimony.

(206.) Justice Scalia has expressed doubt whether it is possible to have a
utilitarian sense of proportionality. Writing the Court's opinion in Harmelin
v. Michigan, 501 U.S. 957 (1991), he remarked that "it becomes difficult even
to speak intelligently of `proportionality,' once deterrence and
rehabilitation are given significant weight. Proportionality is inherently a
retributive concept.... "Id. at 989.

(207.) See supra note 20 (regarding concern for harm caused).

(208.) See, e.g., Thomas Auto Co. v. Craft, 763 S.W.2d 651 (Ark. 1987); Green
Oil v. Hornsby, 539 So.2d 218, 222 (Ala. 1989); May Dep't Stores Co. v. State
ex rel. Woodard, 863 P.2d 967, 975 (Colo. 1993); Ivy v. GMAC, 612 So.2d 1108,
1115 (Miss. 1992); Dees v. American Nat'l Fire Ins. Co., 861 P.2d 141, 150
(Mont. 1993); Zurich Ins. v. Shearson Lehman, 642 N.E.2d 1065, 1068 (N.Y.
1994).

(209.) Michael Moore explains the relationship of retribution to this scheme
as it is reflected in law:
Retributivism ... joins corrective justice theories of torts, natural
rights theories of property, and promissory theories of contract as
deontological alternatives to utilitarian justifications; in each case, the
institutions of punishment, tort compensation, property, and contract are
justified by the rightness or fairness of the institution in question, not
by the good consequences such institutions may generate.

MICHAEL MOORE, The Moral Worth of Retribution, in RESPONSIBILITY CHARACTER,
AND THE EMOTIONS 182 (1987).

(210.) For example, statutes in Arkansas, California, and Montana specifically
stated that insofar as the juvenile justice system is concerned,
rehabilitative purposes are substituted for retributive ones. See ARK. CODE
ANN. [sections] 9-27-302(3) (West 1999); CAL. WELF. AND INST. CODE [sections]
1700 (West 1998); MONT. CODE ANN. [sections] 41-5-102(2) (Michie 1995). State
courts also have interpreted state provisions calling for or permitting
diversion of juvenile offenders into non-criminal for a as similarly
substituting rehabilitation for retribution. See, e.g., In re Tyvonne M., 558
A.2d 661, 665 (Conn. 1989); State v. C.C., 476 So.2d 144, 146 (Fla. 1985); In
re Quinton A., 402 N.E.2d 126, 130 (N.Y. 1980); J.E.C. v. State, 225 N.W.2d
245, 249 (Minn. 1975); J.D.H. v. Juvenile Court of St. Louis City, 508 S.W.2d
497, 500 (Mo, 1974); Jeremiah B. v. State, 823 P.2d 883, 885 (Nev. 1991).

(211.) For example, the sponsor of New York's death penalty bill observed:
The period from 1950 until recently had generally witnessed an
encouragement within our society of the rehabilitative aspects of
correctional punishment while downplaying the value of retribution as a
legitimate form of punishment in this State. The decline of capital
punishment follows, almost identically, with the rise of not only murder
but all violent crime.

Memo. of State Exec. Dept., McKinney's 1995 Session Laws of New York, at 1779.
See also Brian Forst et al., Sentencing and Social Science: Research for the
Formulation of Federal Sentencing Guidelines, 7 HOFSTRA L. REV. 355, 360-61
(1979) (concluding that no empirical support has been found for
rehabilitation).

(212.) One of the cases that led liberals to collaborate with conservatives in
this change was California's In re Lynch, 503 P.2d 921 (Cal. 1972) (en banc),
in which a man sentenced to "not less than one year" for two incidents of
indecent exposure remained in prison five years later when the California
Supreme Court heard his case and reversed on the grounds of
disproportionality. Both Senator Edward Kennedy and the ACLU worked for
determinate sentencing on the ground that indeterminate sentencing had
resulted in great disparity in sentences. See Introduction, Symposium on
Sentencing, Part I, 7 HOFSTRA L. REV. 1, 2 (1978); Leonard Orland, From
Vengeance to Vengeance: Sentencing Reform and the Demise of Rehabilitation, 7
HOFSTRA L. REV. 29, 34 (1978). Alvin J. Bronstein, the head of the National
Prison Project of the ACLU, remarked, "We are among the so-called liberal
reformers who advocated ... the use of flat or determinate sentencing to
eliminate disparity.... The problem is that the concept was distorted to mean
long and harsh determinate sentencing." Stuart Taylor, Jr., Strict Penalties
for Criminals; Pendulum of Feeling Swings, N.Y. TIMES, Dec. 13, 1983, at A1.

(213.) Professor Allen observes that "the evidence [regarding rehabilitative
practices] may justify the assertion sometimes made that rehabilitative
theories of penal treatment have never been accorded a fair trial." FRANCIS A.
ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL 56 (1981).

(214.) The struggle between utilitarian and retributive purposes may be
cyclical. Professor Friedman suggests that
[i]n periods of high crime, at times when the articulate public is scared
to death of crime, the American system tends to shift its emphasis from the
offender to the offense. When fear of crime is reduced from a boil to a
slow simmer, professionals can put through programs of reform and
rehabilitation. This was the case in the late nineteenth century and in the
first part of the twentieth.

FRIEDMAN, supra note 157, at 305-306 (emphasis in original). He adds that
"[i]n retrospect, the [nineteen-] fifties and [-]sixties represented a peak,
or high point, in a movement to make criminal justice more humane...." Id. at
305. Then, in the rest of the century, "the system did a kind of about-face."
Id. Professor Allen makes the related point that "American attitudes toward
crime and its control since the early nineteenth century have been typically
amnesic -- there have been periods of surprise and angry agitation about the
prevalence of crime followed by intervals of somnolence and unconcern." ALLEN,
supra note 8, at 8. The challenge that utilitarian purposes pose to
retribution may very well be cyclical, but, if articulated purposes are any
indication, lack of real success has been consistent.

Michele Cotton, A.B., The College of William & Mary, 1981; Ph.D., Brandeis
University, 1985; J.D., New York University School of Law, 1989. The author
would like to thank research assistant Lindsey O. Worth and Professors John C.
Coates IV, George P. Fletcher, Louis Kaplow, Daniel Meitzer, Marc Miller and
Norval Morris for their invaluable assistance on this Article, as well as
Harvard University's Expository Writing Program for its generous grant funding
research assistance and other costs for the Article's preparation. Any
mistakes are, of course, the author's own.

-- End --