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Losing Sight of the Utilitarian Forest for the Retributivist Trees: An Analysis of the Role of Public Opinion in a Utilitarian Model of Punishment

Strauss, Andrew R
June 4, 2015

Source: (2002) Cardozo Law Review. 23: 1549.

Strauss notes that over the last thirty years the juvenile justice system moved from a focus on rehabilitation towards an emphasis on punishment and just deserts. To a significant degree this transformation occurred due to Supreme Court decisions on juvenile justice in the late 1960s and early 1970s and to contemporaneous public assessments that rehabilitation was not working in the juvenile justice system. Nevertheless, Justice Harry Blackmun of the Supreme Court, in a written opinion in a 1971 case, expressed skepticism about those decisions and assessments. Blackmun argued that success in rehabilitative goals depended so much on a number of factors: availability of resources; public interest and commitment; willingness to learn from practice: and understanding of cause, effect, and cure. Strauss commends Blackmun’s reasoning as being in accord with a utilitarian theory of punishment – that is, that punishment is a necessary evil justified if and only if it benefits society. Hence, many considerations must be taken into account in determining the most effective method of achieving rehabilitative goals. It is dangerous to emphasize public opinion in assessing the value and effectiveness of those goals.


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