Overcoming Vengeance in Sentencing Punitive vs. Rehabilitation

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


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.


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.


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.


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.



Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store
Ian Courts

Ian Courts


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