Creative sentencing: A critical analysis

Abstract

There is doubt that creative sentencing is efficacious in reducing incarceration levels; but, in the long run, that issue is not as important as whether certain freedoms are unduly abused by alternative sentencing practices. Orders of restitution, without full judicial hearing on the loss, represent an obvious danger of injustice. Less obvious is the danger abiding in community service orders where the awesome power of the state compels “good works.” This article argues that criminal sentencing should not be distorted to serve general social goals (“good works”) no matter how noble the sentencing seems to the judge or how much the judge thinks the community might endorse it. Regardless of whether it is true, we assume that the consensus of society supports the criminal law and its enforcement. We can make no similar assumption in regard to the tremendous number of social causes, ideological perspectives and “good works” which a sentencing judge might directly support through the sentencing power. The foll...