Overcoming Vengeance in Sentencing Punitive vs. Rehabilitation

A brief examination of how prosecutors can encourage rehabilitation over punitive criminal justice methods for the accused.

Former U.S. Supreme Court Associate Justice Oliver Wendell Holmes Jr.

An Opinion Piece.

By: Ian L. Courts

The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.” [1] For many, Sir James Stephens’s preceding quote sounds odd and unsettling because of its comparison between criminal law and revenge and sex. However, one of the prominent legal, philosophical presumptions is the concept of “vengeance.” According to Oliver W. Holmes, Jr., vengeance is defined as “a feeling of blame, and an opinion, however, distorted by passion, that a harm has been intentionally committed.” [2] Oliver Wendell Holmes was an American jurist, most notably an associate justice on the United States Supreme Court, from 1902 to 1932. Justice Holmes was known for his expertise and knowledge of English and American common law traditions. Moreover, Justice Holmes was known for giving packed-out lectures where he expounded upon the history and heritage of the common law tradition in English and American Courts. Justice Holmes was lauded in England and America for being highly devoted to the common law tradition. In many of his lectures, Justice Holmes discussed the underlying impulses or influences of the common law, one of those being the concept of vengeance. According to Holmes, vengeance is an inflamed impulse that “imparts a feeling of blame, and an opinion, however, distorted by passion, that a wrong has been done.” [3] Moreover, this inflamed impulse that believes some personal wrong has been done is also viewed as deserving of punishment. Society believes that once harm or crime has been committed, regardless of its violent nature, the transgression is an offense against society and thus needs to be punished by society.

Sentencing in a modern American context is defined as the formal legal consequences applied via statute or case precedent for a legal violation, normally, a criminal transgression.[4] Moreover, many law students, practitioners, and laymen rarely, if ever, think of vengeance as an influence on criminal law. Despite the fact that many people today rarely discuss vengeance in a criminal context, the concept of “vengeance” has been discussed throughout the study of law. Many of our law schools shy away from teaching the underlying principles or philosophical origins of the law and operate on a presumption that the law is legitimate morally and philosophically. However, I find it important to examine and understand the philosophical and moral underpinnings behind the rule of law in our American jurisprudence. Specifically, this discussion will examine Justice Oliver Wendall Holmes’s philosophical proposition that the source of criminal law stems from the expression and desire for “vengeance” and “vengeance’s” influence on modern criminal sentencing.[5]

This discussion will examine alternative ways of criminal sentencing from the lens of American prosecutors entrusted with the authority to make sentencing recommendations.[6]

There are many models prosecutors may advocate for, such as integrating social services with post-release programs, such as the Scotland and New Zealand models. [7] The social services personnel handle the Scotland model’s post-release probation services.[8] However, the New Zealand model requires all probation and parole officers to undergo social service training.[9] Both the Scotland and New Zealand models provide a more holistic model of care for persons reentering society after prison. Prosecutors advocating for a change in state statute and policy can incorporate programs such as Scotland or New Zealand models in plea bargaining negotiations to provide a holistic approach to delivering parole and probation services. The changing of prosecutorial guidelines to be more rehabilitative-conscious is one-way prosecutors can ensure that the sentencing process in this country is more equitable and fair.

Prosecutors can also advocate for reform to their legislatures' post-incarceration services, such as parole and probation. In the United States, most parole and probation officers have very little training or experience in social welfare services and counseling. Moreover, many of our criminal defendants who reenter society have high recidivism rates. Social welfare training incorporates into criminal justice services the understanding that crime and criminality are impacted by access to social resources such as education, housing, and health care.

Sentencing is one of the most critical areas prosecutors can impact in creating a more equalitarian legal system. Sentencing is the process in which a judicial official (judge, justice of the peace, magistrate) applies a punishment or limitation on a defendant’s liberties due to the court’s finding of the defendant’s guilt. Judicial officials rely on state or federal statutes to determine appropriate sentences that fit with the circumstances relating to the defendant’s guilt. [10] Judicial officials have broad discretion in applying sentencing ranges and duration. However, most rely on the recommendations given by the prosecutor in plea negotiations. [11] A prosecutor has broad discretion within the limits of the relevant statutes to recommend certain sentencing sanctions or not.[12] Moreover, prosecutors can use that discretion to guide more equalitarian legal outcomes such as redirection or deferral.

Redirection is the process in which a criminal defendant is referred to an alternative sentencing method that does not include incarceration or active prison time.[13] Redirection can come in many forms, such as community service, juvenile educational advocacy programs, and deferred prosecution programs. One example of a deferred prosecution redirection program is the Back on Track program in San Francisco.[14] District Attorney Kamala Harris crafted a plan that connected first-time nonviolent offenders with educational training, job readiness, and financial literacy programs.[15] Also, the program provided drug treatment and therapy for persons who needed it.[16] The Back on Track program connected community organizations with the prosecutor’s office to keep young offenders out of the system and help them become productive citizens.[17] The Back on Track program implemented by District Attorney Harris generally worked, having about a 10% reoffense rate for participants. [18]

Deferred prosecution is an arsenal in a prosecutor’s toolbox that consists of holding open a criminal charge or case without proceeding to an official conviction and sentencing imposition. [19] The ability of the prosecutors to enter deferred prosecutions of criminal defendants is essential because the defendant can avoid a criminal conviction and potentially rehabilitate their behavior. A deferred prosecution allows the prosecutor the opportunity to impose certain rehabilitative conditions on a criminal defendant’s plea agreement without convicting and incarcerating the defendant. [20]

Also, prosecutors can advocate for the elimination of mandatory minimum sentences.[21] Mandatory minimums have disproportionately impacted Black and poor communities. The imposition of mandatory minimums contributes to mass incarceration and the proliferation of racial bias in sentencing. For example, instead of an internal policy guideline that imposes mandatory minimums, progressive prosecutors can argue that the office adopts a community-focused initial approach when state statutes do not impose a mandatory minimum. This community-focused approach would center around initial deference to community punishment instead of mandatory minimum active sentencing.[22] The community that suffered harm should play an essential part in implementing prosecutorial policies and guidelines because those policies will ultimately impact them.

In the exercise of their prosecutorial discretion, prosecutors may redirect criminal defendants to programs that seek to help the individual reenter society with an education and job skills to make the community safe and provide better life opportunities for the defendant. Moreover, prosecutors can help reduce the mass incarceration state by advocating abolishing or limiting mandatory minimums in plea negotiations and with the state and federal Legislatures.


Cybercrime, like other forms of antisocial behavior, provides the opportunity for rehabilitation over punitive sentencing methods. Criminal sentencing in the American system's main objectives is to punish the wrongdoer and deter through fear other people from acting in a transgressive way. Vengeance requires that society receive its retribution through the use of public-state-sanctioned revenge on an individual while appropriating a survivor’s experience. [23] Moreover, because vengeance fuels our criminal sentencing, and the punitive nature of sentences create greater harm in communities, sometimes in a greater share than the transgression caused by the individual-sentenced actor.

[1] Sir James Stephen, General View of the Criminal Law of England, p. 99.

[2] Oliver W. Holmes, Jr., The Common Law, p. 2.

[3] Holmes supra at 3.

[4] Legal Information Institute [L11], Cornell Law School, “Sentencing” (A criminal sentence refers to the formal legal consequences associated with a conviction. … Criminal law theorists believe that sentences serve two purposes. First, they serve the goal of deterring future crime by both the convict and by other individuals contemplating a committal of the same crime. Second, a sentence serves the goal of retribution, which posits that the criminal deserves punishment for having acted criminally.)

[5] Holmes supra at 24.

[6] Brown, Darryl K., ‘American Prosecutors’ Powers and Obligations in the Era of Plea Bargaining’, in Erik Luna, and Marianne Wade (eds), The Prosecutor in Transnational Perspective Oxford Academic (2012)(2015)

web access: https://doi.org/10.1093/acprof:osobl/9780199844807.003.0015

[7] See Chris Trotter, Community Corrections: Welfare or Punishment, 6 Int’l Crim. Just. Rev. 121,122 (1996).

[8] Id.

[9] Id.

[10] Melanie D. Wilson, Sentencing Inequality versus Sentencing Injustice, 61 Fed. Law. 59,60 (2014).

[11] See generally Zachary C. Bolitho, G. Nicholas Herman, Plea Bargaining, 4th ed. 254 (2017).

[12] Martinis Jackson supra at 84–88; Bolitho, Herman supra at 255.

[13] Toni Keller, The Emergence of Individualized Sentencing, 45 Temp. L.Q. 351,369 (1972).

[14] Kamala Harris, Smart on Crime: A Career Prosecutor’s Plan to Make Us Safe, 44 (2009).

[15] Id.

[16] Id.

[17] Id.

[18] Id at 45.

[19] Bolitho, Herman supra at 323. (Deferred prosecutions are commonly applied to corporate actors.)

[20] Id. (Deferred prosecutions allow the prosecutor to impose certain limitations in a plea agreement that the defendant must comply with in order for a conviction to be withheld.)

[21] See generally Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L. Rev. 199 (1993) (Mandatory minimums were imposed as a response to what was seen as a rampant increase in criminal activity and the need for punishment and deterrence of similar crimes. Mandatory minimums compel a mandatory active sentence that a judge must impose and a criminal defendant has to serve. The imposition of mandatory minimum sentences disproportionately impacted many African Americans.)

[22] See generally Margaret R. Holmgren, Punishment as Restitution: The Rights of the Community, 2 Crim. Just. Ethics 36,37 (1983)(Community punishment or community alternatives allows members of the societal community impacted by the actions of criminal activity to be engaged in the justice process such as through restitution.)

[23] Austin Sarat, Vengeance, Victims and the Identities of Law, 6 Soc. & Legal Stud. 163,165 (1997).



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Ian Courts

Attorney, Young Black Voice, Law & Politics Observer. HBCU Law Alumnus, and Fur dad!