JUST PUNISHMENT
I. The Purposes and Limits of Punishment
A. Justifications of punishment
1. Retributivism ~ punishment is justified on the grounds that wrongdoing merits punishment.
a. A person who does wrong should suffer in proportion to his wrongdoing.
b. Theory is backwards looking.
c. Punishment is justified solely on the voluntariness of the crime.
d. Characterization of offender ~ based on the individual’s responsibility.
e. Contractual analysis – there exists a social contract that an individual gets something from society, criminals have broken this contract.
f. Problems with retribution:
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i. Lacking fair consideration because we don’t all start with equitable benefits.
ii. Emotional values at stake- people who are suffering exclusion don’t have an investment in society.
iii. The rest of society is not holding up their end of the contract because they are not protecting these groups.
iv. Cabarga case:
Alex Cabarga was brought up by Tree Frog Johnson. He learned a life of abuse and molestation since the age of 9. At age 18, Cabarga and Tree Frog were found guilty of kidnapping 2 ½ yr. old, Tara Burke, and 11-year old Mac Lin Nguyen. Johnson was charged with 121 counts of kidnapping and sexual abuse and Cabarga was charged with 93 similar counts. The jury sentenced Johnson to 527 yrs. in prison and Cabarga with 208 years. Later, a court order reduced Cabarga’s sentence to 25 years with the possibility of parole in 5 years because Cabarga had also been a victim of Johnson.
2. Utilitarianism ~ the purpose of laws is to maximize the net happiness of society. Does not take blameworthiness into consideration.
a. Only future consequences are material to present decisions.
b. Punishment is justifiable only as a device to keep social order.
c. Characterization of offender ~ assumes you can cure the
individual. You can manipulate the individual through
deterrence or rehabilitation.
d. Deterrence ~ depends on individual’s ability to perform a cost
benefit analysis of his actions and the consequences.
i. Two types of deterrence: Specific – deters individual from performing crime again. General – deters others who are aware of the punishment.
ii. Theory assumes:
a. Punishment is harsh enough to fit the crime
b. People are rational and can comprehend and weigh the cost/benefit of the crime.
c. Certainty of punishment must exist (most expect they will not get caught)
d. There must be proximity of punishment, swiftness.
iii. Problems with deterrence:
a. May lose idea of blameworthiness; cannot punish the innocent just to deter others.
b. Uses people as a means to an end (a perfect society).
e. Incapacitation ~ put criminals away where they can no longer be harmful to society.
i. Theory assumes:
a. Past offenders will be repeat offenders
b. Offenders taken off the street will not be immediately replaced by someone else; This assumes:
– opportunities for crime are not abundant
– we are dealing with crimes that require skills
– there is not a high demand for crime (prostitution, drugs, etc.)
c. Crimes will not be committed in prison
d. Social protection is limited for the general, fee society.
e. It is worth to keep offenders in jail, even though we often pay much more to keep them in jail.
ii. If we could figure out who the repeat offenders are, we could target them, incapacitate them before they commit crimes.
f. Rehabilitation ~ Need to alter the character of the offender permanently.
i. Goal is the same as deterrence: to reduce future crime
ii. Downfall of rehabilitation theory caused by:
a. Different people take different time to recover; made uniformity of punishment very difficult
b. Some people could fake success in rehabilitation
c. It’s patronizing; interference with personal autonomy.
d. Focuses too much on the individual and not the crime.
e. Gets costly because some people will be staying much longer for minor offenses.
f. Too much lee-way was given to the correctional officers, judges, etc. – too easy to discriminate.
B. Proportionality of Sentencing ~ doctrine provides assurance that an offender receives punishment appropriate to the crime he has committed.
1. Both Retributivists and Utilitarians recognize proportionality in their theories, but they approach it differently.
a. Utilitarianism and Proportionality
i. punishment must outweigh the potential profit to the criminal of committing the offense.
ii. the greater the mischief of the offense, the greater the punishment should be.
iii. grade offenses in such a way to induce a person to choose always the least mischievous of two offenses.
iv. punishment should be set in a manner to induce a criminal to do no more mischief than what is necessary for his purpose.
v. cannot inflict more punishment than necessary, since punishment is bad in it of itself, just do what’s necessary.
b. Retributivism and Proportionality
i. the offender owes a debt to society, punishment is a mode of repayment. The payment due must be proportional to the offense committed.
ii. theory does not assert like for like. Rapists are punished by getting raped, but a punishment that requires the wrongdoer symbolically to repay his debt.
2. 8th Amendment basis – prohibits grossly disproportional punishment
3. Solem v. Helm – U.S. Supreme Court (1983) [p.96]
Facts: Jerry Helm had six nonviolent felonies. The last felony had been for a “no account” check for $100. Normally, sentence would have been up to 5 yrs. in prison and a $5000 fine. But because of S. Dakota’s recidivist statute which stated that if a defendant has been convicted of at least three prior convictions in addition to the principal felony, the sentence would be an automatic Class I felony. Class I felony holds life imprisonment, without parole, in the state penitentiary and a $25,000 fine.
Proc History: S. Dakota District Court sentenced him to life imprisonment after Helms plead guilty of the current felony. S. Dakota Supreme Court rejected Helm’s 8th Amendment argument. Habeas relief from the district court was denied. Court of Appeals for the 8th district reversed and concluded that Helm’s sentence was “grossly disproportionate.”
Holding: Using the three prong test, discussed below, the Supreme Court affirms court of appeals decision for a violation of Helm’s 8th Amendment rights. The court held that the final clause of the 8th Amendment “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.”
Significance: Trial court was using an incapacitation theory in putting Helms away for life and protecting the public from possible future harms he may cause.
– Set up guidelines for proportionality analysis under the 8th Amendment: the following criteria need to be considered
(1) the gravity of the offense and the harshness of the penalty (culpability)
(2) the sentences imposed on other criminals in the same jurisdiction
(3) the sentences imposed for commission of the same crime in other jurisdictions.
4. Rummel v. Estelle – U.S. Supreme Court (1980) [p.101]
Facts: William Rummel was convicted in Texas of obtaining, under false pretenses, a check for $120.75, and then cashing it. Offense carried a two-to-ten year prison term. However because Rummel was a recidivist, he was sentenced to life imprisonment, but was eligible for parole twelve years into his sentence.
Holding: Supreme Court (in a 5-4 vote) refused to overturn Rummel’s sentence. The dissenters in Rummel set up the three prong test, later used in Solem.
Significance: Without consideration of later cases, although states are prohibited from inflicting grossly disproportionate punishment, the Supreme Court will almost always defer to the state legislature’s judgment in non-capital cases.
Distinguished Solem: because Rummel had the possibility of parole, whereas, Solem did not.
5. Harmelin v. Michigan – U.S. Supreme Court (1991) [p.102]
Facts: Ronald Harmelin was convicted of possessing 672 grams of cocaine. Even though it was his first offense, he received the statutory mandatory term of life imprisonment without possibility of parole. Since there is no death penalty in Michigan, this was the harshest sentence available.
Holding: Scalia announced that sentence did not violate 8th Amendment because the framers did not include the amendment as a guarantee against disproportionate sentences. Overruled Solem (but not in actuality because it was only two justices).
Significance: This was a plurality decision. Three justices concurred but refused to overrule Solem. Changed three-prong test to a stricter one: if the offense is a serious one, the inter/intra-jurisdictional analysis is not necessary.
C. The Federal Sentencing Guidelines ~ until the 80s most states had indiscretionary sentencing guidelines. In 1984 the Sentencing Reform Act was passed. Wanted to get away from judicial discretion.
1. Calculation is mathematical: base offense + criminal history
2. Cannot take into account family, drug usage, or community ties.
3. Relevant conduct- sentences were raised for conduct that defendants weren’t even convicted of.
THE COMPONENTS OF A CRIME
II. Actus Reas – the criminal act; the physical or external portion of the crime.
A. Individual cannot be punished for a potential crime solely on desert – cannot punish someone for their thoughts.
B. Seven possible conditions for the act requirement and just punishment:
1. the act must be for (a) past (b) voluntary (c) bad (d) conduct (e) specified (f) in advance (g) by statute.
2. Proctor v. State – Oklahoma Ct. of Appeals (1918) [p.124]
Facts: Proctor was convicted of “keeping a place with the intent and for the purpose of unlawfully selling, bartering, and giving away spirituous, vinous, fermented and malt liquors.” The conviction was based on Oklahoma statute which criminalized intent, as quoted above. Proctor did speak of his intent to his friends.
Holding: The statute itself does not define a crime, you must have both elements in order to constitute a crime: a vicious will, and an unlawful act consequent upon such vicious will.
Reasoning: The “keeping of a place” in it of itself is not unlawful. And the second part of the statute- the intention- is not a crime. Need an overt act defined in the statute.
Significance: The court recognizes the common law principle that a man cannot be punished for his thoughts. A voluntary act/contraction of muscles is required.
C. Possession
1. Possession is different when regarding drug statutes, but it varies by state jurisdiction
2. In Earle v. United States – D.C. Ct. of Appeals (1992) [p.131], the defendant was charged with constructive possession of cocaine when found lying face down, fully dressed, supposedly asleep in a lighted basement room adjacent to another room where a large quantity of crack cocaine was found.
a. The court listed three elements of “constructive possession”
-knew the location of the drugs
-had the ability to exercise dominion a
is voluntary act.
3. Powell v. Texas U.S. Supreme Court (1968) [p.151]
Facts: Defendant was arrested and charged with being found in a state of intoxication in a public place, in violation of Texas Penal Code. Defendant was tried and found guilty, fined $20.
Arguments: Defense argued that Powell was afflicted with the disease of chronic alcoholism.
Holding: Defendant was not convicted of being an alcoholic, but of being in a public place while drunk. This constituted an act, not a status.
Significance: This was a plurality opinion. White, concurring, said the voluntariness of Powell’s act was that of being in public. He can be an alcoholic at home without breaking the law. Dissenters argued that alcoholism is like drug addiction in that it is involuntary.
4. Pottinger v. Miami Florida Dist. Ct. (1992) [p.152]
Facts: City of Miami arrested thousands of homeless people for such life-sustaining conduct as sleeping and eating under a Florida statute.
Arguments: Plaintiffs argue that their status of being homeless is involuntary, and therefore precedent of Robinson should be followed.
Holding: Do homeless people have a realistic choice but to live in public places? Harlan says no. Expert witness testified that “homelessness is both a consequence and a cause of physical or mental illness.” The court held that “arresting the homeless for harmless, involuntary, life-sustaining acts such as sleeping, sitting or eating in public is cruel and unusual.
G. Legality
1. There needs to be a law that declares an act criminal and postulates a punishment in order to be convicted.
2. Do crimes based on common law meet legality standard?
a. Most states have abolished common law crimes.
3. Commonwealth v. Keller Pennsylvania Ct. of Common Please (1964) [p.161]
Facts: Keller had a child out of wedlock. Claims baby was born dead. She wrapped the body of the child and stored it in her basement for more than a year. She gave birth to a second child in 1963. The child was born alive, so she drowned him in the toilet, then shoved the body in a sanitary napkin box, and put the box in a closet. Defendant was indicted for adultery and two counts of a common law misdemeanor, characterized as the “indecent disposition of a dead body.”
Arguments: Because there was lack of evidence as to when the second child died, the criminal case against Keller did not succeed. Defendant argued that the crime she was convicted of (indecent disposal of body) was not one which is cognizable under the laws of the Commonwealth.
Holding: Historically, disposing of dead bodies needs to be decent. Even though there is no Pennsylvania common law to this effect, it is so in other states. “We thus consider the common law as being sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality or obstruct or pervert public justice or the administration of government.”
Significance: Court relies on moral fiber of community and historical rituals of burial.
4. Keeler v. Superior Court California Sup. Ct. (1970) [p.168]
Facts: Defendant beat up his ex-wife because she was pregnant and killed the child in the process. Keeler was charged with the murder of a viable fetus.
Holding: The penal code stated, “Murder is the unlawful killing of a human being, with malice aforethought.” The Court talked of the legislative intent, and based on common law principles, found that a fetus was not encompassed in the definition of a human being. Even so, there are no common law statutes in California, and based on the absence of a statute addressing the death of a fetus, and thus reversed the charge. The Court said the punishment received by Keeler was unforeseeable.
Significance: If the court had upheld Keeler’s conviction, the decision could have had repercussions on the issue of abortion. Since the killing of a fetus was not specified in a statute, the law would be ex post facto and thus would violate the Due Process Clause.
5. “Analogy” is a principle of substantive criminal law which permits the conviction of an accused despite the absence of any defined criminal behavior. If the actions of the accused are perceived to be inimical to the socio-political order then he may be found guilty of a defined crime which prohibits analogous behavior. (Chinese way of law)
H. Specificity
1. Ricks v. District of Columbia D.C. Ct. of App. (1968) [p.178]
Facts: D.C. had a statute which allowed people to be arrested for vagrancy for such actions as “not giving a good account of oneself.” The statute did not n
