Punishment 2/10/10 7:52 PM
Punishment
Justification
Punishment – the purposeful infliction of suffering upon an offender because of an offense.
· Connotes a “blaming or stigmatizing” of the perpetrator as a choosing agent.
Utilitarianism– consequential theory – the means are justified at the ends.
“Good comes from punishment.”
· Deterrence – dissuade future criminals
o The Pain inflicted to punish has to be greater than
§ General – discouraging other criminals from committing crimes in the future.
§ Special/Specific – discouraging a criminal from committing crimes in the future by punishing them for their present crime.
o To be effective deterrence, D must receive notice accurately – (“if you do this…punishment will happen.”)
o Threat must be credible.
§ D thinks he will be captured.
§ And D fears he will be punished as threatened.
ú Certainty > Severity.
o D must calculate pain vs. pleasure.
§ Critics say: This doesn’t happen in street crimes, only white collar crimes.
ú Spontaneity vs. Calculation respectively.
§ Some research says peer status/influence is bigger deterrence.
o THREAT, and not punishment is the deterrence.
· Incapacitation – isolates dangerous people & takes them out of society.
o To be effective three conditions must be present:
§ Some offenders must repeatedly commit crimes.
§ Offenders taken out of society must not immediately be replaced by other offenders (drug market)
§ The from of incapacitation (prison) must not breed further or more intense criminal activity to offset the crimes prevented by the incapacitation.
o Also must either:
§ Punish for lengthy period of times every person committing the same crime equally –or–
§ Assume the CJ system can accurately identify those who are most likely to reoffend and impose on them lengthy periods of incapacitation.
· Rehabilitation – curing the offender.
o Indeterminate sentencing – jail until they are cured.
o Individualized assessments based on offender, not offense.
o No empirical evidence to say this works – has fallen out of favor.
· Denunciation
o Accommodates people’s sense of anger and justice.
o Keeps a sense of order in society by providing a way for society to punish people without sending out a lynch mob.
Retributivism – the right to do what is just/moral as a matter of moral obligation whether or not the results are effective (Death Penalty).
· Based on principles of justice.
· Just deserts – getting what one deserves.
· Requires that CJ system rank crimes in moral heinousness.
o There is no objective basis to this – therefore legitimacy is questionable.
Sentencing and Proportionality – The punishment should fit the crime.
Reinforces substantive differences of crimes.
· Purposely vs. recklessly.
· Promotes differences in crimes goals.
Solem test for proportionality (from Ewing v. California):
Can’t decide, slide down
· (1) Gravity of the offense vs. harshness of the penalty.
o Stealing of golf clubs vs. cocaine distribution.
o Majority (because of legislature’s direction) says look at habitual criminalism rather than isolated incident.
· (2) Sentences imposed on other criminals in the jurisdiction
o List out crimes in CA and compare.
· (3) Sentences imposed for commission of the same crime in other jurisdictions.
Scalia (concurring) says that proportionality analysis cannot be intelligentl
have allegedly utilized vagrancy provisions as a means of arresting “suspicious” persons whom they lack probably cause to arrest for the “suspected offense.”
· Statutory Interpretation
o Even when a criminal statute is written with perfect clarity, interpretations may be necessary because the context in which the statute operates has changed
o Keller v. Superior Court: Is a fetus a human being within the meaning of the statute?
§ Historically – no – needed to be born alive.
§ Court cannot enact ex post facto laws.
§ The required criminal law must have existed when the conduct in issue occurred.
§ Paradox: The man who kicked his wife’s uterus would be sure to kick her hard enough so the baby was stillborn and not born alive and then died so he cannot be prosecuted.
§ With medical technology keeping brain dead people alive and people alive longer in general, along with premature babies being able to be kept alive, should the statute been interpreted differently? (Majority says no. Dissent says yes).
What conduct should be punished?
Constitutionally protected conduct.
Can the court imply moral standards?
· Lawrence v. Texas
o Not decided under Equal Protection Clause.
o Decided under Due Process
o The state cannot say that it is furthering any public interest in outlawing sodomy.
· Roe v. Wade
o Decided under Due Process – protection of liberty.
