Unpunishment Purposes

Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation. However, little scholarship exists addressing how these four punishment purposes apply in the post- sentencing or second-look contexts. Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and tend to downplay the impact of incarceration on the families and communities of those who are incarcerated. This Article attempts to reconceptualize the traditional purposes of punishment to meet the current historical moment, and it does so through a decarcerative and abolitionist lens. Within the past decade, an increasing number of state and federal retroactive relief mechanisms have enabled incarcerated people to petition courts for sentence reductions or early release from prison based on various legal theories. But guidance provided to courts and other decisionmakers about how to exercise their discretionary decarceration authority is lacking. Accordingly, this Article highlights the need to develop a theory of resentencing and asks whether the four purposes of punishment require revision or augmentation to account for the sentence reduction context. This Article uses the federal second-look context as a means to explore these themes. This Article also aims to start a conversation about how abolitionist frameworks centered around harm prevention or reduction could be incorporated into the punishment purposes. Although adherence to the four punishment purposes has persisted at both initial sentencings and within second-look proceedings despite their clear shortcomings, this Article urges decisionmakers to look at the harm caused by incarceration more expansively. More than that, however, incorporating such a theory into a prospective sentencing may lead judges to rethink their reflexive reliance on the present formulation of the punishment purposes, resulting in less punishment altogether.