The Institutional Design of Punishment

For the past 40 years, policymakers have engaged in a debate over which institution should wield the principal power over punishment. Should courts and parole boards have the dominant role at sentencing, or should that power be left to legislatures and sentencing commissions? These debates are typically couched in policy terms, yet they also raise deeply philosophical questions. Among the most notable is a normative one: what is the morally justified sentencing system?

Perhaps surprisingly, criminal theorists have almost uniformly ignored this normative question, and that neglect has degraded the quality of the ongoing institutional debates. This Paper seeks to address that shortcoming by exploring the moral ramifications of design choices in the sentencing field. In particular, this Paper identifies the institutional structure best suited for promoting utilitarianism, a widely accepted moral theory of punishment.

Drawing insights from cognitive science and institutional analysis, this Paper concludes that a properly structured sentencing commission is the institution best able to satisfy the moral theory’s demands. Beyond that policy prescription, this Paper has a broader set of goals: to start a conversation about the link between moral theory and institutional design, and to encourage policymakers to more fully explore the premises of their own institutional choices in the criminal justice field.