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

OVERVIEW: The Architecture of the Criminal Justice System: Process, Participants, and the Role of Discretion
PUNISHMENT
WHAT IS PUNISHMENT?
Kansas v. Hendricks
· ISSUE: Does the Kansas Sexually Violent Predators Act establish criminal proceedings? Consequently, does the commitment under the SVPA constitute punishment, which might violate the Constitution’s Double Jeopardy and Ex Post Facto Clauses?
· Defense argues that the Act establishes criminal proceedings and therefore punishes him (takes away his liberty) twice for the same conduct, thus violating the Double Jeopardy Clause, and punishes him for criminal conduct that occurred before the statute existed, thus violating the Ex Post Facto Clause
· According to the Corut, the Act doesn’t “implicate either of the two primary objectives of punishment” – retribution and deterrence
o Not retributive because the statute does not affix culpability for prior criminal conduct
o Not a deterrent because mental abnormality prevents persons from exercising adequate control over their behavior, and are unlikely to be deterred by threat of confinement
· Conclusion: Hendricks can be civilly committed under the Act
California Penal Code: “uniformity in the sentences of offenders committing the same offense under similar circumstances”
SIX THEORIES OF PUNISHMENT (5 TRADITIONAL, 1 PROGRESSIVE)
1) Deterrence: Reducing crime through the fear of punishment, the “intimidation or terror of the law”
§ Principles: Bentham
o Specific deterrence is the use of punishment to frighten the person actually punished away from reoffending
o General deterrence aims at frightening potential offenders other than the person punished.
1. A single punishment may both specifically deter the offender and generally deter the broader class of potential offenders
o Utilitarian Theory: focus on “net social gain”
o Cost/benefit calculus
§ Critique:
o “Radically present-oriented” boys undermine conventional deterrence theory because they do not deliberate the consequences of their actions (DiIulio, Help Wanted: Economists, Crime and Public Policy, p. 45)
o Conventional punishment makes assumptions about quality of life that may be false (i.e. breaking into jail for purpose of having a roof over one’s head, p. 46)
2) I

by changing the criminal so that s/he no longer desires to commit crime
o Can be effective according to research in some contexts
§ Critique
o May be more onerous than punishment for retributive purposes
o Effectiveness concerns: When subjected to close scrutiny, few programs seemed to succeed in reducing offender recidivism
1. If treatment lacks such routine, predictable applicability, how can it serve as a principal sentencing rationale???
o Humaneness concerns: Rehabilitative ethic assumes that treatment-oriented punishments are inherently gentle. It also shifts attention from the offender’s actual criminal conduct to his or her lifestyle or social/moral character.
o Fairness concerns: One is using criminal punishment, a blame-conveying response, and yet deciding the intervention on the basis of those personal and social variables that have little to do with how reprehensible the behavior is.