Harris
Crim Law
Spring 2011
JUSTIFICATIONS FOR PUNISHMENT
I. The Aims of Criminal Law — Henry Hart Jr.
a. Methods
i. commands, musts (pay taxes) and must nots (murder)
ii. Criminal sanctions are distinguished from civil ones b/c they are the judgment of community condemnation which justify their imposition.
iii. Both crim law and tort law have rules and punishments for breaking rules
iv. Both crim and tort law have moral issues underlying them
b. Sources
i. common law – relies on decisions of judges
ii. model penal code – relies on statutory language (adopted partially by some states)
c. Justifications for Punishment
i. Consequentialist
1. actions are morally right if, and only if, they result in desirable consequences
2. primary theory = utilitarianism
a. look at predictable effects of punishment on the offender and/or society
ii. nonconsequentialist
1. actions are morally right or wrong in themselves, regardless of the consequences
2. primary theory = retributivism
a. look backwards at the harm caused by the crime and attempt to calibrate the punishment to the crime
II. Justifications for Punishment
a. Incapacitation
i. Idea: Get people off the streets
ii. Problems:
1. Doesn't always stop crime: crime in prison, prison as school for criminals
2. Expensive and impractical as sole response to crime, esp. for market-driven crime
b. Retribution
i. Idea: Moral desert (centered on proportionality [punishment should fit crime], so can make sentences lighter or heavier)
ii. Problems:
1. How do you measure desert? (what person deserves for crime)
2. Individualized treatment v. equality (some people need certain treatment but everyone should be punished equally)
3. Justice v. revenge (are they different? How to separate?)
4. No relation to offender's subjective experience of punishment (Blecker)
c. Specific Deterrence
i. Idea: Prison convinces offender not to offend again
ii. Problems:
1. Prison as school for crime
2. People not always rational maximizers (prison not always bad to some people)
3. Cost-benefit analysis may come out the wrong way
4. Lack of info (about what punishment is for crime)
5. Enforcement problems (people are deterred, if at all, by not only weight of punishment but likelihood that they will get caught and actually punished) [speeding]
6. Individualized treatment v. equality (what deters one prisoner might be diff from deterring another, but legal system wants to use equality)
d. General Deterrence
i. Idea: Prison convinces rest of society not to commit offences
ii. Problems: Same as Specific Deterrence
e. Rehabilitation
i. Idea:
1. Change character not just cost-benefit analysis
2. Involves positive interventions (carrots) not just stick
ii. Problems:
1. How to measure?
2. Inequality (if baseline [outside of prison] is few services)
3. Perverse Incentives (if prison too good it'll give people reason to commit crime to get access to those services)
4. Individualized treatment v. equality (one person may need lots to be rehabilitated while another may not need much at all…conflicts with equality)
f. Legally Insane
i. doesn't have same capacity to make choices that rest of community can
ii. so not fair to treat them the same as others in community…don't deserve same moral condemnation from the community
iii. juries very reluctant to find guilty but insane so lots of mentally ill in normal prisons
iv. public seems to support position that people should never be not-guilty for reason of insanity but can be guilty but insane
III. Sentencing in the US: History
a. First innovation (18th century): imprisonment rather than death, forced labor, transportation (sending criminals to Australia)
b. invention of the penitentiary = forced isolation can make them reflect on their crimes and repent
c. The US put idea into practice by building large penitentiaries
d. From penitentiary to reformatory:
i. Rehabilitation as major goal of punishment….old idea of penitentiaries to force reflection wasn't working
e. The advent of “indeterminate sentencing” (late 19th-early 20th century): great discretion in sentencing judge; parole
i. Gave judges unfettered discretion in imposing penalties
ii. Criticisms of in
act Statement
iii. October vote of the membership disavows the death penalty structure it created
CRIMINAL TRIAL BASICS
I. Role of prosecutor–ethical–to pursue justice (not to win or charge as high as possible)
a. must introduce sufficient evidence on every element of the crime such that a rational juror could be convinced of
b. guilt beyond a reasonable doubt
i. guaranteed by Constitution according to Winship
II. Two defense strategies (ethical duty of “zealous advocacy”)
a. create a reasonable doubt strategy
i. based on facts (e.g. you got wrong guy)
ii. based on law (e.g. defense in Curley)
III. Raise affirmative defense
a. always has burden of production
b. may have burden of persuasion — standard preponderance or slightly higher; never beyond reasonable doubt
IV. Role of jury (fact-finder: might be a judge [if D waives right to jury])
a. resolve issues of fact
b. accept instruction on the law (“jury instructions”) (but see jury nullification)
c. resolve mixed issues of law and fact——–was D guilty based on facts as they found them and law as told by judge
V. Role of judge
a. serve as umpire btw prosecutor and defense attorney (mostly evidentiary rulings, what can come in and what can't)
b. make rulings of law
c. may find facts and resolve mixed questions of fact and law (if jury trial waived)
d. issue correct instructions on law to the jury
e. prevent and address misconduct
VI. Standards of review
a. motion for directed verdict of acquittal:
i. NOT: is there reasonable doubt?
ii. INSTEAD: Could a rational jury be convinced beyond a reasonable doubt?
b. Appeal on “sufficiency of the evidence”
i. NOT: is there reasonable doubt?
ii. INSTEAD: was the jury out of its mind?
