Professor Trevor Gardner, Criminal Law, Spring 2017
Justifications For Punishment
The (Four) Aims of the Criminal Law:
The method of criminal law operates by means of a series of directions, or commands, formulated in general terms, telling people what they must or must not do (e.g., do not murder; pay your taxes). (2) The commands are taken as valid and binding upon all those who fall within their terms when the time comes for complying with them, whether or not they have been formulated in advance on a single authoritative set of words. (3) The commands are subject to one or more sanctions for disobedience which the community is prepared to enforce. (4) What distinguishes a criminal from a civil sanction and all that distinguishes it is the judgment of community condemnation which accompanies and justifies its imposition.
—A crime is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
—In common law jurisdictions, judges continue to play an important role in shaping the criminal law. Courts in these jurisdictions must interpret statutes that are often very old and that may incorporate archaic language and concepts. Judges in common law jurisdictions both definitively interpret the meaning of criminal statutes and occasionally go beyond the statutes to announce new rules of their own.
—Other jurisdictions have recently sought to update and reform their criminal codes. Page 5
—In common law jurisdictions, one primarily relies on the decisions of judges to find out what the criminal law is; in MPC jurisdictions, one primarily relies on the statuary language itself. In both kinds of jurisdictions, however, criminal law is influenced by federal law. The most important source of federal law is the U.S. Constitution. The Constitution does not specifically set forth any crimes or defenses.
Justifications for Punishment:
—The argument traditionally used to justify criminal punishment come from moral philosophy.
—Traditional moral reasoning is usually divided into two types: consequentialist and nonconsequentialist. The consequentialist believes that actions are morally right if, and only if, they result in desirable consequences. The primary consequentialist believes that actions are morally right if, and only if, thy result in desirable consequences. Utilitarians tend to look forward at the predictable effects of punishment on the offender and/or society.
—The nonconsequentialist, in contarct, believs that actions are morally right or wrong in themselves, regardless of consequences. The primary nonconsequentialist theory of punishment is called retributivism. Retributivists typically look backwards at the harm caused by the crime and attempt to calibrate the punishment to the crime. Debates over criminal law and policy usually involve a mixture of utilitarian and retributivist arguments.
People v. Suitte—(Suitte, father and contributing member of society, found with unregistered gun and accepted a plea of a class A misdemeanor. Sentenced to 30 days in prison (when mandatory sentence was 1 year). Appellate Court found this sentence appropriate w/r/t legislative intent. Standard of review if abuse of discretion)
Holding: The four main objectives of the punishment (deterrence (general and specific), rehabilitation, retribution, and isolation) support the 30 day sentence. The test to be applied is abuse of discretion.
The court also differentiated between specific and general deterrence: “While deterrence includes individual deterrence directed at preventing the specific offender from repeating the same or other criminal acts, it also includes general deterrence which aims to discourage the general public from recourse to crime….It is clear that the principle aim of the 1980 gun legislation is general deterrence.”
Dissent: Such a punishment will not deter b/c plaintiff was not a serious threat to the community and jail time is counterproductive in this instance.
Stay: A stay is a suspension of a case or a suspension of a particular proceeding within a case. A judge may grant a stay on the motion of a party to the case or issue a stay sua sponte, without the request of a party. Courts will grant a stay in a case when it is necessary to secure the rights of a party. There are two main types of stays: a stay of execution and a stay of proceedings.
Concurrent: serving each sentence at the same time
Consecutive: serving each sentence in order (i.e., a 4 year sentence, then a 3 year sentence equals seven years, while concurrent would be 4 years).
Abuse of discretion is one that is hard to meet. The trial court is given great deference, and the appellate court can not overturn unless it is clear there is a mistake.
Essay: Haven or Hell? Inside Lorton Central Prison: Experiences of Punishment Justified
—incapacitation: rendering harmless to a society a person otherwise inclined to crime.
—retribution: intentional infliction of pain and suffering on a criminal to the extent he deserves it because he has willingly committed a crime.
—general deterrence: pressure that the example of one criminal’s pain and suffering exerts on potential criminals to forgo their contemplated crimes.
—specific deterrence: pressure that the unpleasant memories of incarceration exert on a released convict, which cause him to obey the law.
—rehabilitation: acquisition of skills or values which convert a criminal into a law abiding citizen.
—malum in se: a thing bad in itself
—malum prohibitum: a thing bad only because defined as illegal (man made crimes)
There is no uniform, black letter law in criminal law. Each jurisdiction has its own criminal code.
Mens rea: the mental state of the criminal.
Sources of Criminal Law:
—Statutes typically govern criminal law. State criminal codes, Federal Criminal Codes, Municipal Ordinances (cities and towns).
—Rules 1-100: READ the statute!
The Model Penal Code is not law. It’s more like a suggestion of law. There are certain principles of the Model Penal Code that many courts have adopted, but many states have not. However, the real law is what is contained in the state statute, not what is in the Model Penal Code.
Common Law:
—Appellate Precedent. The technical meaning of common law is law that is made entirely from judges, but this is different in criminal law. There is no real precedent
Constitution:
Justifications for punishment: Often known as “utilitarian” because it seeks to achieve a societal benefit. Reform and rehabilitation isn’t a reason for punishment, but more a goal for the punishment system to avoid retributivism.
—Retributivism is imposed because they deserve punishment, not to achieve any betterment.
-Assaultive retribution (lex talionis): punishment is justified without any consideration of the criminal’s rights or best interests. It deters private vengeance and sends a useful denunciatory message to would be offenders,
– Protective retribution: A just society has the right to punish voluntary wrongdoers, under an analysis of benefits and burdens.
– Victim Vindication
Sentencing Procedures
• Indeterminate: Trial judges have broad sentencing discretion, subject to minimum and maximum terms set by the legislature. The judge, not the legislature, sets the appropriate punishment for each offender.
• Determinate: The legislature sets a specific sentence for each crime, which includes eliminating parole, imposing mandatory minimum sentences set by legislation and sentencing guidelines set by and administrative agency.
ADD State v. Slattum
Changing the Culture of Criminal Punishment Essay
—Restorative justice is a process of bringing together the individuals who have been affected by an offense and having them agree on how to repair the harm caused by the crime. The purpose is to restore victims, restore offenders, and restore communications in a way that all stakeholders can agree is just.
—Restorative justice became a global social movement in the 1990s as a result of learning from indigenous practices of restorative justice. Material reparation was much less important than emotional or symbolic reparation; Victims often wanted an apology more than compensation.
Therapeutic Jurisprudence
—Therapeutic jurisprudence is the interdisciplinary study of law as a social force that has considerable impact on people’s emotional lives and psychological wellbeing, Its fundamental premise is that a person’s involvement with the legal system can have btoh positive and negative consequences for him or her, even independent of the win/lose outcome of the case.
—A nolo contrendre plea, in which the offender is allowed to claim innocence while accepting punishment, might have an anti-thereputic consequences for both the offe
mendment’s ban on cruel and unusual punishment. The court held that “the Court’s precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime…Embodied in the Constitution’s ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to the offense.’ The court’s cases addressing the proportionality of sentences fall within two general classifications. The first involves challenge to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.”
—Retribution not good for juveniles because they are less able to understand the consequences, their brains are less developed.
—Deterrence not useful for juveniles because they don’t have the same decision making skills and so it wont deter other juveniles from the same crimes. Also not very frequently imposed so people don’t think that the possibility would happen for them.
—Incapacitation: deciding at such a young age is in a need for capacitation for the rest of his life doesn’t seem to ring true. Can’t say that his life will never turn around.
Sentencing Procedures:
—Indeterminate: Trial judges have broad sentencing discretion, subject to minimum and maximum terms set by the legislature. The judge, not the legislature, sets the appropriate punishment for each offender.
—Determinate: The legislature sets a specific sentence for each crime, which includes eliminating parole, imposing mandatory minimum sentences set by legislation and sentencing guidelines set by an administrative agency.
—Washington has a determinate scheme with a few factors. The judge has to sentence within a range
—In determinate schemes, the prosecutor has the decision as to what to change and how many counts to charge.
State v. Slattum—Issue: is a person who is serving a term of community custody entitled to postconviction DNA testing?
RCW 10.73.170 provides that “a person convicted of a felony in a Washington state court who currently is serving a term of imprisonment may submit to the court that entered the judgment of conviction a verified written motion requesting DNA testing, with a copy of the motion provided to the state office of public defense.”
—First, start at the plain meaning of the statute. Here, the term “imprisonment” is ambiguous. You could look to the statutes to see where “community custody” is listed (it’s more obvious if “community custody” is listed under imprisonment). Then look at the dictionary (legal, and then normal), and also caselaw.
—Does the rule of lenity apply? This is not a criminal statute.
U.S. v. Weitzel (1918)—Defendant was appointment a receiver by the Comptroller of the Currency, who is charged with the duty of supervising national banks. Here, the court used Noscitur a sociis in the case.
City v. Green (1958)—Defendant sold liquor in a locker. Statute said no one could sell liquor from the “premises.” Court used the dictionary definition and the rule of lenity and found for the defendant.
—Noscitur a sociis—The meaning of doubtful terms or phrases may be determined by reference to their relationship with other words or phrases.
—Ejusdem generis—Where general works follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated.
