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Perhaps the former should still be retributively punished but in ways that are reduced so as to recognize the very difficult circumstances in which they find themselves.
If an indeterminate commitment is impermissible, courts may resort to longer sentences than retributively and incapacitatively permitted and necessary.
Chanenson's model is a very helpful starting point, but it may not provide a wholly satisfactory account of how the full amount of time served in prison under an indeterminate sentence is retributively justified.
64) Between the minimum and maximum levels of punishment that were retributively appropriate, Morris believed, a sentencing judge could permissibly take other considerations into account, including utilitarian crime-control objectives like rehabilitation and incapacitation.
The point here is not that crime-control utilitarianism is incapable of justifying ISS, but simply that it is not clear whether ISS would perform better than a determinate sentencing alternative (for instance, one that would permit the sentencing judge to select a determinate sentence somewhere within the retributively appropriate range or that would simply require the sentencing judge to impose the least--or most--severe sentence that is consistent with the proportionality requirement).
First, ISS does not seem to contemplate any difference in the conditions of confinement based on whether an inmate is serving the initial, retributively justified portion of the sentence or is being preventively detained by the parole board.
To be sure, this objection might be overcome if we offered inmates appropriate, improved conditions of confinement once they moved past the minimum retributively required portion of their sentences and into the preventive-detention portion.
There is thus at least some tension between a "high risk" finding and the underlying conviction and sentencing judgment that punishment is retributively justified; after all, retributive punishment is "suited only to beings capable of moral agency.
ISS may thus benefit from a bit of refining and reframing in order to provide a more stable and retributively satisfying theoretical foundation for indeterminate sentencing.
Although Duff developed this account to explain why incarceration might sometimes be a retributively appropriate response to violations of probation rules, I will argue that an analogy might be drawn to delayed release as a response to prison violations.
Although probation is sometimes characterized as an alternative to punishment, Duff has sought to reclaim probation as a retributively appropriate sanction.
In such cases, delayed release--not indefinitely delayed, but within the parameters of the indeterminate sentence--can be conceived as a retributively appropriate response to the inmate's failure to engage in an even minimally acceptable fashion with the penitential regimen of prison life.