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University of Toledo School of Law
Hamilton, Melissa

Professor Hamilton

I. Five Main Theories of Punishment
o Based on sociology’s positivist tradition that tends to support methods to change the psychological and sociological bases for deviance.

For example, lots of crime comes from drugs. Since crime comes from drug use, maybe rehabilitation comes from treating the drug use, not treating the actual crime.
From a sociological perspective, you test programs. Throw out the ones that don’t work, and keep the ones that do.

Theories was in main use during the 60’s and 70’s. Now however, just build more prisons, less treatment programs.
Typically still suppose to be used for juvenile offenders. However, more and more juvies tried as adults.

· Traditionally was done by banishment or exile
· Now generally about incarceration:
o Imprisonment or execution as a means to protect society from the offender.
· Not a full proof model either.
o Prisoners in jail still do crimes also.
· Drugs. Orders to other gang members. Selling contraband.
o Still can communicate to outside world with things like internet and such from prison
· US like incarceration more then any other country in the world.
o The US also has 25% of the total prisoners in the entire world. 3% of US is in Jail, prison, parole, or probation.

o Policy designed to focus on chronic offenders.
· Habitual offender laws.
· 3 Strike policy laws.
o Problems with this policy?
· Most crimes are committed by people 17-21. After that, people would stop generally stop on their own. They could go out, get their own job. Etc..

Then could be incarcerating a large number of people that would stop anyways.

· Not stopping them from committing crimes from prison anyways
· Social costs.
§ State has to pay for children or spouses left behind.
§ Large number of men being gone from neighborhoods in the ghetto.

o Specific deterrence – Punishing an individual to deter them from committing further crimes
o General deterrence – Punishing an individual to serve as an example to others.

o For deterrence to work, assumes that person will worry about consequences before the commit the crime.
o Problems with this theory
· For deterrence to work, assumes that person will worry about consequences before the commit the crime.
§ If they don’t weight the consequences, they can’t be worried.
o Three Major Components of Deterrence. For this to work, there have to be three major components.
· Swiftness
§ How quickly does punishment follow the act
· Severity
§ How much pain for punishment
· Sureness
§ How sure is the punishment going to happen
· Will they even be caught, is the crime even something typically punishable

o Restore the moral balance of society (atonement).
· You have to atone for you sins.
· Comes from religious principles
o Is NOT philosophically intend upon reducing crime
· Someone who believes in this theory has no interest in reducing crime verse other ones who believe in all theories kind of.
o Oriented only towards past behavior
· Not about fixing future problems.
o An eye for an eye
· Proportional to harm you caused society.
o Limiting Retributionism

Sentencing “Parsimony”

Punishment should not be more then what’s fair, but also not less then what’s fair.
Punish to the extent of what equals to the crime.
Don’t want to unbalance moral society by going to far with the crime

· STATE v. GAINES (Washington 1993)
o Washington statutory sentencing purposes:

Punishment proportionate to seriousness of offense and offender’s criminal history
Promote respect for the law with a just punishment
Similar sentencing for like offenses
Protect the public
Offer opportunities for improvement
Frugal use of state’s resources

· EWING v. CA (2003)

Only cruel and unusual, if its grossly dis-proportionate to the severity of the crime
Four things to consider in proportional sentences

Primacy of the legislature

What the legislature meant

The major theories

Rehabilitation, deterrence, incapacitation, retribution

The nature of the federal system
Mode of punishment

Not about length, but about how they punish. Hard labor, death, torture, etc…

II. Other Theories of Punishment
o Repairs harm to criminal, victim, and society.
o Offender is responsible for paying
· Victim for his/her loss.
· Criminal justice system for its processing expenses
§ Court fees, jail fees, etc…
· Society for the disruption
o General Justifying aim
o Question of Liability
o Question of amount

III. Systems of Sentencing
o Relevance of criminal history in sentencing on a new offense?
· Measure culpability
· Predict future criminality
· Selectively target dangerous offenders
o Collective incapacitation introduced
o Variations among sentencing regimes in how to calculate, e.g.
· Type of prior offenses
· # of prior convictions
· Length of prior sentence
· Juveniles v. adult offenses
· Recency of prior offenses
§ Might not count them in if there was that 10 year gap
· Desistance periods
§ How long you stopped. Maybe if someone was good for a long period of time they would be considered to be good again.
o Purpose of felony sentencing are

of authority
o Truth in sentencing “fixes” for early releases (method to make sure prisoners weren’t released to early)
· Parole and good time credit
§ A inmate would have to serve X amount of a sentence, so a parole couldn’t be given until the inmate served the minimum time
§ Opportunities for good time credit reduced, so again, they couldn’t get out earlier then they should
· Judicial orders for civil rights violations
§ In 70’s judges were releasing people for civil rights violations
§ Congress lowered the power of judges to grant these releases
· Administrative releases
§ Capacity issues
· The prison can release people
§ Healthcare costs
· Aging prison population so expensive to pay for healthcare
o Major Types
· Indeterminate (Can be used two ways)
§ One where the judge issues a sentence a lower boundary and upper boundary, and then its up to the parole board to determine how long they serve. “serve 5-10 years”
§ Legislature provides the ability to the judge to sentence on a certain case a very large range of whatever he wants
· No guidelines, the judge just knows for a certain crime he could sentence for example 5-10 years.
· Determinate
§ Boundaries are smaller (5-6 years)
§ Or just set amount. (5 years)
· Guidelines
§ Presumptive
· Some cases it tells the judge that based on the criminal history, that they have to sentence in this very narrow range of guidelines
· Have to have extraordinary reasons to depart
§ Voluntary/Advisory
· Most guidelines are like this. Just gives recommendations, judge doesn’t have to put sentence there.
o “Reforms” rarely explicitly consider resource limitations
· Making people stay longer, but hasn’t addressed what to do with lack of prison space.

o Consistency v. Individuation
· Should you be sentencing a person solely on their offense, verse sentencing on rehabilitation?
o New models attempt to reduce disparity
· Researchers are showing that you just can’t look at the offense, there are other things to look at to explain the disparity.
· Possibly not as much disparity as it was originally thought
o Disparity doesn’t equal discrimination
· Just because things are different, doesn’t mean it’s a basis only on race or similar factors
o Politics
o Costs
· Rather spend money on other things then paying for prisoners.
o Overcrowding