What is punishment= the social practice of intentionally inflicting suffering on certain individuals who commit socially condemnable acts
1) Forms of punishment: Conviction (carries social stigma, could be barrier to future employment, and risk of enhanced punishment for future offense), fine, probation (def: court imposed criminal sentence which releases convicted person into community), imprisonment, death
2) Imprisonment : deprivation of goods & services; of heterosexual relationships; security; violence; overcrowding; difficulties faced by women;
1) 4 standards of punishment to be applied to each case
a) Retribution = Looks to past
i) Moore: Offenders punished because they “deserve it.” Legal revenge. No concern for the future; nor care about satisfying victim’s vengeance or society’s preferences; the social good of expressing condemnation NOT a concern. Society merely has a duty to revenge against state wrongs.
ii) A mixed retribution theory is possible: Punishment is justified if it achieves social gain + given to offenders who deserve it.
iii) Dudley v. Stevens: a vehicle for expression of society’s norms.
i) MPC“to promote the correction and rehabilitation of offenders”
ii) Look at both the crime to determine punishment AND the personality of the offender
iii) Ideals (1) General: Incorporates offenders back into society (2) Specific: paternalistic towards the offender (MPC)
i) Specific – to prevent commission of offenses by THIS offender by restraining him
ii) General – Protect society from the specific offender
d) Deterrence/Prevention = Looks to future/predective
i) General – to deter others from committing the same crime. Not ALL people but similarly-minded people.
ii) Specific – to deter convicted D from committing same crime)
iii) Conviction & Imprisonment:
(1) Rational calculating actor – differing views on whether a criminal calculates to avoid pain (prison) and to increase pleasure. Violent people are so blinded by rage that they are irrational, self-destructive, unconscious. Hustlers’ lives devoid of order, planning or design.
iv) Stigma: Shaming may deter or cause crime b/c no structure for curbing “fickle” population
v) Moral influence — Crim law creates and enforces shared public norms of appropriate and condemnable conduct: Applies as general prevention to all citizens è fear of getting caught, education of moral inhibitions, people see themselves as moral human beings. Importance of a “just” and morally credible system: (1) punishing those who deserve it (retrib) (2) protect those from punishment who don’t deserve it (MPC, CA) (3) No excessive punishment.
e) Comparison of codes
i) MPC & NY & Ritter find that Deterence, Rehabiltation, Restraintare civilized reasons for punishment.
ii) MPC & CA re prevention of excessive or arbitary punishment.
iii) CA Penal Code Purpose of punishment is imprisonment.
f) Commonwealth v. Ritter (Married D killed married woman he was having an affair with in a crime of passion)
i) M1 v M2 and Sentencing Procedure:
(1) Grand Jury decides whether to issue indictment. If evid. is strong enough to hold suspect for trial, GJ returns bill for indictment charging suspect w/specific crime.
(2) D pled guilty to indictment charging murder general, which warrants conviction of M2 unless court found premeditation and deliberation
(3) Court convicts D of M1 for “willful, deliberate, and premeditated” killing but does not charge death.
ii) Rules: The considerations for penalty of M1 are restraint and deterrence. Sentencing should take into account the background of the offender & of the offense. You apply three theories (not retribution) to determine sentencing. There is no precedent and therefore judge may use his own discretion.
iii) Issue: Should Judge impose life or death penalty (only 2 options by PA statute)?
(1) Exercise of judicial discretion: Statute not specific and no case law, so judge relies on philosophers and finds 4 theories for punishments to apply to case
(a) Retribution – Knocks this down. Doesn’t think that this rationale leads to “refined and humanized” society.
(b) Reformation – Communal not spiritual definition. Not applicable to this murder case b/c D will not be in contact with society again. Unlikely that he’ll kill in jail.
(c) Restraint – Vital for protection of society to restrain D from committing future crime. Life is not sufficient and death is properly used against “hopelessly depraved”; homicidal tendencies; if he’ll murder within prison walls.
(i) Application: To determine what kind of restraint, examine both the particular person and particular crime: The crime while serious, was not result of “homicidal tendency” or “bloodthirstiness.” The man is not characterized as “uncontrollably violent”
(d) Deterrence Only calculated murders would be deterred by death penalty; not those committed under provocation OR “impulse of some frenzy or strong passion”
(i) Pros arg: Plotted to obtain the pistol before the crime at a pawn shop b/c finances were low.
g) Notes on Sentencing Authority
i) Traditional sentencing system – highly discretional
(1) Legis: sets wide sentencing range
(2) Pros: official with most important determination – decides which specific offense and ultimately punishment
(a) Power to reduce charges for guilty plea
(b) Recommend sentence as part of plea bargain
(3) Judge: selects sentence from wide range
(a) Til 70s, sentencing judges (usually elected) determined decision in fairly unstructured way without statutory guidance.
(4) Parole: power to modify judicial sentence
(a) Judge gives min and max, which increase parole’s power to determine release.
(b) Release decision is discretionary, made w/o guidance
ii) States now limit discretion:
(1) Discretion is inconsistent, unchecked & undermines deterrence.
(2) Permit leniency or can lead to harsh sentences
(3) Arose from principle that punishment is individualized to crime, but judges individualized to criminal
(4) Solution: mandating specific punishments
(5) Solution: appellate court review of trial-court sentencing
h) Rule: Necessity of self-preservation or temptation is not a valid excuse for killing, therefore such a killing was murder.
i) Dudley v. Stevens (135)(Cannibal sailors at sea faced with uncertain death kill young boy who does not consent in order to survive).
ii) Issue: Is this killing excusable and therefore not murder?
iii) Def a
esserts” for someone who didn’t do anything
iii) Reformation: Can’t reform someone who didn’t plan to commit act
iv) Deterrence: Won’t work b/c you only deter people who make the wrong choices: Martin chose to drink, but did not chose to appear on highway; Newton chose to tangle with police, but did not chose to shoot one.
e) Other examples of involuntary acts
i) Habitual actions are voluntary acts (MPC)
ii) Possession is a voluntary act only if person is aware she has the thing she is charge with possessing (MPC)
iii) Hypnosis NOT voluntary
iv) Bodily movement during unconscious (Newton) or sleep NOT voluntary
(1) Sleepingwalking mother acquitted of murdering her child b/c common law regarded her act as involuntary
v) Reflex or convulsion NOT voluntary = sudden heart attack w/o prior knowledge
(1) Exception: Act not involuntary simply b/c unintentional or unforeseeable according to actor
(a) Rule: An epileptic is aware of condition but disregards consequences may be held liable for criminal negligence
(b) Decina (NY). Epileptic driver jumps curb and kills 4. Charged and convicted of “criminal negligence” (person who operates car in a reckless or negligent manner). Getting into car was voluntary & accident reasonably foreseeable by jury. Procedural issue is demurrer (facts are true but not sufficient to support complaint). Judge here passes on the sufficiency before trial, like a motion to dismiss.
f) Ommission to Act
i) Common law rule: Generally no criminal liability for omission unless the omission to act is in the face of a legal duty. Must be the neglect of a legal duty – not a moral one.
(1) Common law rule: Omission of a legal duty is element of crime of involuntary manslaughter
(2) Jones v. U.S. (1962)(Baby dies b/c family friend failed to feed baby. Unclear if there was a contractual relationship or if there was a voluntary assumption of care. Found guilty of involuntary manslaughter. Conviction reversed and remanded.) Held: Failure to instruct jury that legal duty is required was prejudicial.
(a) Pros say that instruction should have been: “If you find that the evidence in this case supports BRD that Jones had a legal duty for the dead infant, then you may conclude that she is guilty of involuntary manslaughter”:
(i) Arg: While evidence is conflicted, there’s enough to suggest a contract & voluntary assumption of care (mother let friend live there)
ii) Situations where breach of legal duty imposes culpability on actor
(1) Where statute imposes duty to care for another
RI, Vermont, Wisconsin: Good Samaritan statutes. England made it a crime not to report