INTRO & THEORETICAL FRAMEWORKS
I. The MPC
a. Overall, MPC has desire to individualize treatment while maintaining an objective standard for determining whether a crime has been committed.
b. Generally takes a utilitarian stance
II. Why do we punish crime?
a. Retribution (we should punish them b/c they deserve it)
A. Kant. They deserve it regardless of the impact.
B. Retributivism as accountability for being an asshole.
C. Murphy & Mackey CP:
1. Marxist perspective – society created criminal t/f not usu justified in punishing criminal. No debt owed to society b/c don’t get benefits.
D. Regina v. Dudley & Stephens (1884) England p. 135. Cannibalism at sea case. Boat sank, guys stranded w/ just a few cans of turnips — ∆s wanted to each boy on ship (Richard Parker). Fairly certain boy was going to die. Third guy objected but he act, too. No doubt that they killed someone (even if it was just hastening of death) (actus reas) and they were trying to kill (mens rea). This case is about necessity as an affirmative defense. Court holds ∆ guilty of murder, applies death penalty (but commuted by crown). Necessity defense not applicable because:
· Administrative concerns. How will a court decide what’s necessary and what isn’t?
· C-P: maybe this is the type of thing that juries would be okay at figuring out.
· Better to die than to kill. Simply wrong to kill even if you knew Richard Parker would die the next day. State would prefer for all to die than for 3 of them to kill 1.
· You can’t usually consent to a crime, so it may not have mattered if Richard Parker agreed.
· Court goes w/ retributive approach. (Although they may have known that the ∆s wouldn’t have been put to death, just wanted to send message.)
· The boy was the weakest – ganging up, or least likely to survive, or had family
· Was the better option to wait for boy to die?
· Was it morally right to kill the boy or morally wrong? Why don’t we set rules of retributivist scheme so that they produce best outcome – mixed theory.
· Measure morality & desert in part of utilitarianism.
Rule: You cannot sacrifice someone else’s life in order to save your own.
b. Utilitarianism – Punishing people for benefit of the society
A. Rehabilitation
1. Out of favor generally in today’s sentencing
2. Potentially open to abuse – thinking you’re doing someone a favor by punishing them.
3. Allocates resources away from more deserving people
4. Flourishing/safe for society
5. Costly
6. Interference w/ personal autonomy
7. Too much discretion
B. Deterrance
1. General – sending a message to society at large
a. US v. Bergman (1976) p. 140. Rabbi commits insurance fraud while running nursing homes he runs. Pleads guilty on 2 counts but argues against incarceration on the grounds that:
i. no need for rehabilitation – not a good reason to send anyone to prison
ii. no need for incapacitation – no risk of recidivism (Court swayed by his rep., fewer opportunities)
iii. no need for specific deterrence – ditto
iv. no need for general deterrence b/c no proof that it works
v. he has been shamed enough
Court imposes 4 month prison sentence, holding that punishment of this type of ongoing, premeditated crime likely to lead to general deterrence. Community service not really a “punishment” for rabbi who does a lot of that anyway & that he lost a high social status is not enough punishment b/c would unreasonably favor those w/ high social status. In addition, high profile case that gets people’s attention, letting him off would’ve sent wrong lesson, especially because he had no excuse for this.
Expressive norm reaffirmation – we want all of society to know that we punish shit like this.
Equal justice – we shouldn’t let off rich high-profile rabbi. Even with no need for specific deterrence, rehabilitation, or incapacitation, high-character criminal must be sent to jail for general deterrence purposes, norm reaffirmation, and fairness.
2. Specific – how can we punish this person so that they don’t commit crimes again
3. Assumptions:
a. Punishment is harsh enough to fit the crime;
b. People are rational actors;
c. Certainty of punishment must exist (most think they won’t get caught);
d. Punishment must be proximate, swift
e. Do offenders do C/B anal?
4. Certainty v. severity – most criminals don’t get caught. How likely you are to get caught + what happens if I do get caught.
a. Perhaps we should up the penalty for crimes that are hard to catch for
5. Problems with a deterrence rationale
a. Might lose idea of blameworthiness & punish innocent individuals.
b. Uses people as a means to an end, which may be immoral.
C. Incapacitation
1. General
2. Selective
a. Sex offenders – decide where to live, create a world jail to keep opportunities for crime away from you.
b. Murderers generally extremely unlikely to reoffend – does it make sense to let murderers go soon?
c. Prediction of recidivism – predictions are often wrong & discriminatory against low-income, low-education, and often communities of color. Unfairness of disparate sentences.
d. May cost more to lock up.
e. Assumes criminals who are taken off streets won’t just be replaced by others.
f. Can’t lock people up for crimes they have yet to commit (8th Am, DP).
D. Norm affirmation & moral influence
1. Important for societal stability to reaffirm norms or anarchy ensues
2. Education – we teach other people what they shouldn’t do
3. Generally works only to reinforce, but not change, norm
E. Concerns with deterrence
1. Probably don’t want purely deterrence
2. Distinction b/t certainty & severity.
c. Mixed theory – bits & pieces of both retribution & utilitarianism
A. Moore – we should only punish where both criteria are satisfied. They must deserve it, and it must create benefits >costs
B. Limiting retributivism – retributivism sets the minimum & max, but we think about utilitarian consequences within that range.
III. How do we punish crime?
Trial courts should decide about punishment with the state’s stated theory in mind.
A. Statutory statements of purpose are guiding, but inherently vague and open to interpretation.
1. Examples
a. NY: Purpose is to proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests. JJ likes this as a structure for looking at the law.
b. Federal Criminal Justice Reform Act of 1973: “Code aims at the articulation of the nation’s fundamental system of values and its vindication through imposition of merited punishment.”
2. However, appellate courts have minimal review where the sentence is too light.
a. “Selection of a sentence within the statutory range is essentially free of appellate review” US v. Jackson – true in most states, but some states have:
i. Mandated sentences
ii. Administrative guidelines
iii. Appellate review of sentencing
b. State v. Chaney (1970) p. 143. US Servicemember picks up girl outside of bar, rapes her forcibly 4 times, and takes her money. List of basis for sentencing in AK omits retribution. Judge gives mandatory minimum (apologetically, 1 year t
iminalization of suicide v. criminalization of euthanasia.
b. Alternatives to criminalization:
· Regulation
· Social Pressure
· Civil liability
c. Reasons to criminalize
A. historical reasons,
B. don’t want to lessen stigma of crime,
C. if society is victim, is there a compensating good,
D. causes actual harm,
E. should not protect moral interests alone
d. When society is the victim, we criminalize. When an individual is the sole victim, we criminalize.
e. Criminal Justice Reform Act – criminal law is supposed to articulate the nation’s fundamental system of values
f. Case studies: Sex crimes
1. Bowers v. Hardwick (1986) SCOTUS p. 158. Gay man charged with criminal sodomy under GA law. DA drops case, respondent sues in fed court stating that statute unconstitutional violation [of right to privacy] (arguing standing because he is in imminent danger of arrest as practicing homosexual). Framework: constitution prevents certain things from criminalization. White majority. State has a right to criminalize based on morality & tradition b/c no fundamental right to “engage in homosexual sodomy.” Not deeply rooted since outlawed for a long time. Expression of an activity being “immoral and unacceptable” as rational basis for legislation. Blackmun dissent. Falls into fundamental right to privacy. Implies that a more careful scrutiny should’ve applied. This is about same sex and opposite sex coulples. Changing social norms and makeup of society. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Does the conduct have some compensating benefit? Liberty interest, sexuality as fundamental to life, couldn’t imagine criminalizing this area of individual interaction without creating costs. No evidence of communicable disease being eradicated by this law. Decent society – how are you defining it? Religious basis is not something this court will consider in defining a decent society. Can’t be harmed by knowing that people are out there, doing things in their home that you know you disapprove of.
2. Lawrence v. Texas – We do not criminalize status.
3. Wolfenden report – ban on homosexual activity valid for those who need protection, but not amongst consenting adults in private. “We do not think it proper for the law to concern itself with what a man does in private unless it can be shown to be so contrary to the public good that the law ought to intervene in its function as the guardian of that public good.”
a. Function of protecting public order & decency v. private morality (sin)
b. Morals not completely out because morality often lead to increased order & decency.
c. Public morality (displays of shit public finds immoral) may not be completely out either.
Devlin rebuttal – No such thing as “private morality” – all morality is public. Besides, lots of our law really deal w/ Wolfenden report
