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Criminal Law
University of California, Hastings School of Law
Bloch, Kate E.

CRIMINAL LAW SPRING 2006

PUNISHMENT

Kansas v. Hendricks – Civil commitment is not punishment. Not retributive because it does not affix culpability for prior criminal conduct and no certain mental state is required. Not deterrent because people with such a mental abnormality would not be deterred (Court takes narrow view of determining how this is not punishment.)

United States v. Bergman – crime = Medicaid bills fraud and filing a partnership return that didn’t list certain people relating to the nursing home. What is the appropriate punishment? Court decides to incarcerate Bergman for four years under the theories of general deterrence and retribution.
Equal justice à the law is employed regularly, the privileged should not be treated differently

THEORIES OF PUNISHMENT:

I. RETRIBUTION

A. Principles: Kant – principle of equality:
-“just deserts” – people are getting what they deserve
-sameness of kind between punishment and crime = the wrong you did to someone else should be the wrong that’s done to you (“eye for an eye”)
-retrospective theory dependent upon blameworthiness
-limiting principle: proportionality required
-doesn’t use people (as examples), merely punishes individual for what s/he has done

B. Critique: Dolinko – retribution uses people:
-mistaken convictions are unavoidable and those innocents are used by a retributive system
-not feasible to determine punishment deserved

II. DETERRENCE

A. Principles: Bentham
-Reduce crime through fear of punishment
-Cost/benefit analysis
-Utilitarian theory à focus on “net social gain”
-Specific deterrence: dissuade the individual offender from future crime
-General deterrence: dissuade others in society from future crime

B. Critique: DiIulio – deterrence doesn’t work on radically present-oriented boys:
-they live by code of the street; going to prison is a step toward better crime career
-they don’t weight costs and benefits.
-Jail ‘Break-In’ à conventional punishment makes assumptions about quality of life that may be false; deterrence only works if they think jail is a bad thing.

III. INCAPACITATION

A. Principles:
-Derive the offender of the ability or opportunity to commit crime
-Three strikes laws
-Wilson à Relies on three conditions:
(1) proportion of offenders that are recidivists (repeat offenders)
(2) lack of immediate and complete replacements
(3) prison not too effective a school for crime
-DiIulio à incarceration is cost-effective for preventing recidivism of certain types of crime during custody

B. Critique:
-selective incapacitation: select offenders, and sentence each offender to how likely they are to commit a particular crime
-Concerns: discrimination/fairness à socio-economic/racial biases that are likely to affect t

ck is sold at a higher rate in poor
inner cities (more heavily populated with minorities)
-racial profiling
-Tonry à argues for more individualized, tailored sentencing, for the least punitive; corrective programs to help offenders rebuild their lives; need honesty in dealing with politicians

III. SENTENCING POWER AND DISCRETION

-US Sentencing Commission established sentencing guidelines – used to be mandatory, but now are only advisory for judges and still constitutionally valid, not required to stay within guideline’s limits (United States v. Booker)
-Guidelines were based on sentences that judges were actually handing out
-Congress abolished parole, but sentences could be reduced by up to 15% for good behavior
-Guidelines eliminate the executive power exercised by the Parole Commission, reduce judicial power, and consolidate power in the Sentencing Commission and in prosecutors

IV. RESTORATIVE JUSTICE

-alternative approach to punishment
-mediation with the offender and the victim/victim’s family and someone who mediates the discussion in determining what the appropriate punishment should be