Go over case study seven at end of book!
Theories of Punishment
1. Deterrence
a. Idea is that individuals ill not commit crimes for fear of suffering same punishment that current defendant has suffered (general deterrence).
b. And that this defendant will avoid future crimes b/c he or she too fears additional punishment (specific deterrence).
c. Considered utilitarian theory, justified primarily by preventing future harms.
d. Mental state may matter b/c helps society decide how much punishment is needed for deterrence.
(i) Ex: Someone who wants to kill others, and enjoys doing so, may require very severe punishment to be deterred.
(ii) Someone who kills accidentally may require very light punishment to be motivated to exercise greater care for human life in future.
2. Rehabilitation
a. Also considered utilitarian theory.
b. Premised upon idea that society has obligation to punish an individual in way that makes him a better citizen and person tomorrow.
c. Encompasses belief that individuals with free will are capable of changing and contributing to society positively.
3. Isolation (Sometimes referred to as incapacitation)
a. Variation on deterrence focusing on isolating wrongdoers from law abiding persons.
b. While one is in prison, he cannot harm others.
c. Not pure deterrence b/c does not require defendant to change behavior from fear or redemption.
d. Instead, idea is that defendant cannot hurt others simply b/c he or she is locked up for past misconduct.
4. Education
a. Punishing wrongdoers for the evil they do educated rest of population in what rules society considerers:
(i) Most sacred and important
(ii) What value it holds
(iii) What procedures it sees as fair
(iv) How it values individuals (form of rehabilitation) and groups (general deterrent)
5. Retribution
a. Unlike utilitarian principles above, look to past rather than future.
b. Goal being to insure person gets what he deserves
c. To a pure retributivist, irrelevant that death penalty might not deter similar potential evildoers.
(i) What matters is that wrongdoers must be punished
d. When using retributive theories, what defendant deserves turns on:
(i) Wrongfulness of act
(ii) Degree of harm caused
(iii) Mental state at time of offense
State v. Jensen
Appellate court uses abuse of discretion standard.
a. A sentence may represent such an abuse of discretion if it shown to be unreasonable upon the facts of the case.
b. “Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender and the protection of the public interest”.
(i) At sentencing, judge’s findings on facts related to person (such as prior conduct) don’t have to be beyond reasonable doubt; only by preponderance of the evidence.
Sentencing
a. In many jurisdictions, sentencing guidelines are merely sources of guidance (not binding on the judge but meant to encourage uniformity in sentencing similarly situated defendants.
(i) Some states mandate judges to justify reasons for departing from the guidelines.
b. In other jurisdictions, the guidelines are mandatory, with few deviations permitted.
c. In United States v. Booker, the court invalidated only those portions of the guidelines and of the federal authorizing statute that made the guidelines mandatory.
(i) Federal guidelines are now merely advisory
d. In Rita v. United States, only appellate courts may presume a sentence is reasonable when a district court judge’s discretionary decision accords with the sentence the sentencing commission deems appropriate.
e. In Gall v. United States, Supreme Court held that appellate courts must review all sentences, within and without guidelines range, under deferential abuse of discretion standard.
f. United States v. Crawford: To comply with requirements of Booker, district court must sufficiently consider guidelines, as well as:
1. Nature and circumstances of offense and history and characteristics of defendant;
2. Need for sentence imposed
A. To reflect seriousness of offense, to promote respect for the law, and to provide just punishment for the offense;
B. To afford adequate deterrence for criminal conduct;
C. To protect public from further crimes of defendant; and
D. To provide defendant with needed educational and vocational training, medical care, or other correctional treatment in most effective manner;
3. Kinds of sentences available;
4. Kinds of sentence and sentencing range established for
A. The applicable category of offense committed by applicable category of defendant as set forth in guidelines
Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted
a. The sanction imposed on the defendant must be commensurate with the crime.
Court adopted three part test in Solem v. Helm to assess whether punishment is cruel and unusual for being disproportionate:
1. Gravity of the offense and the harshness of the penalty
2. Sentences imposed on other criminals in the same jurisdiction
3. Sentences imposed for commission of same crime in other jurisdictions
California’s Three Strikes Law
a. When defendant is convicted of a felony, and has previously been convicted of a serious or violent felony, then sentence imposed under three strikes law shall include a five year enhancement.
(i) If defendant has two prior serious or violent felonies, minimum term of imprisonment in 25 years.
b. Under California law, some offenses can be charged either as misdemeanors or felonies (wobblers; California law treats them presumptively as felonies).
(i) Prosecutors have discretion to charge wobbler as misdemeanor or felony in deciding whether to seek an enhanced sentence, and trial court has similar discretion to reduce felony wobbler to misdemeanor to avoid three strikes.
(ii) Trial court can also vacate prior felony conviction if judge determines that, based on defendant’s background, character, and prospects, he fall outside statutory scheme’s spirit, in whole or in part (People v. Williams).
c. In Ewing v. California, U.S. Supreme Court upheld the sentence (25 years to life) of a habitual offender who stole $399 in golf clubs, and had four prior conviction for serious or violent felonies (3 burglaries and a robbery).
(i) Court gave deference to California’s interest in protecting public safety and legislative desire to incapacitate serious or violent habitual offenders.
Roper v. Simmons
Supreme Court affirmed decision that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed.
Justice Kennedy describes three general differences between juveniles under 18 and adults that demonstrate that juvenile cannot be classified among the worst offenders:
1. A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young.
2. Juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure (less control over their environment).
3. Character of a juvenile isn’t as well formed as that of an adult.
From a moral standpoint, he states it would be misguided to equate failings of minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.
Also, retribution isn’t proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity (same argument works for deterrence).
Kennedy also talks about only seven countries other than U.S. have executed juvenile offenders since 1990. Therefore, it is appropriate to refer to laws
includes particular defendant’s actions.
3. In construing a statute, our role is to ascertain Legislature’s intent so as to effectuate purpose of the law (People v. Lopez).
a. In determining intent, must look first to the words of the statute b/c they are most reliable indicator of legislative intent (People v. Lopez).
b. If statutory language clear and unambiguous, plain meaning of statute governs (People v. Lopez).
4. When legislation has been judicially construed and subsequent statute on similar subject uses identical or substantially similar language, usual presumption is that legislature intended same construction, unless contrary intent plainly appears (People v. Lopez).
5. If term known to the common law has not otherwise been defined by statute, assumed that the common law meaning was intended (People v. Lopez).
6. Ejusdem Generis
a. When general language follows specific terms in a statute, ejusdem generis rule limits general language to specific terms
b. Especially applicable to penal statutes, which must be strictly construed
c. Ex: The term “other dangerous weapons” after “dirk, dagger, blackjack, slug shot, billy, metal knuckles, and pistol included only instruments designed as offensive weapons and therefore didn’t include a flare gun.
7. Expressio unius est exclusion alterius
a. “The expression of one thing is the exclusion of another.”
b. Used by defendants when statute contains list of acts or circumstances and they argue that by enumerating specific items the legislature intended to exclude anything that falls outside the list.
8. Rule of lenity
a. Unique to criminal law
b. Criminal statutes should be interpreted narrowly in order to ensure that defendant isn’t convicted for a crime about which the person may have been unaware.
(i) If words of statute offer 2 possible meanings, and both are constitutional, court must interpret in light most favorable to defendant.
9. Statutes must be clear
a. General rule is statute cannot be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.
b. A court considering a vagueness challenge asks whether “person of ordinary intelligence” can understand terms used by legislature, but not whether particular defendant in fact knows what statute means.
10. Ex Post Facto
a. Constitution prohibits ex post facto (after the fact) laws.
b. Calder v. Bull states 4 types of laws subject to prohibition:
1. Every law that makes action, done before passing of the law, and which was innocent when done, criminal; and punishes such action
2. Every law that aggravates a crime, or makes it greater than it was, when committed
3. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed
4. Every law that alters legal rules of evidence, and receives less, or different, testimony, than the law required at time of commission of the offence, in order to convict the offender.
11. Bill of Attainder
a. Constitution prohibits
b. It is special legislation that declares specific person to be guilty of a crime and subject to punishment without either a trial or conviction.
