Determinate sentencing, formal rationality, and khadi justice in Maine: An application of Weber's typology

Abstract

In the 1980s over twenty-five jurisdictions, including Maine, changed their sentencing policies. Nevertheless, only a few states approximated the goal of determinancy proposed by advocates of reform. Recent extensions of Weber's work on law finding to the area of punishment provide a means to reconceptualize the problem addressed by advocates of determinacy. This article refocuses debates about sentencing reform in terms of Weber's concept of formal rationality. It explains why one state—Maine—did not reduce judicial disparities and why determinacy failed to be introduced. Sentences from an experiment conducted among all members of Maine's judiciary are compared with guideline sentences in two states—Minnesota and Pennsylvania. This comparison clearly supports national criticism of Maine's failure to reduce judicial disparities in sentences. It is concluded that widespread sentencing disparities in Maine result from a criminal code legitimating substantively irrational decisionmaking or khadi justice. No attempt was made to move toward a formally rational system advocated by proponents of determinacy.