Outline Punishment

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					                           CRIMINAL LAW
                         Punishment Outline

Theories of Punishment

   Justifications of punishment: Why and is the social institution of
    punishment necessary?          What are the necessary conditions for
    punishment in particular cases?        What is the degree of severity
    appropriate for particular offenses and offenders


   While imprisoned, a criminal has fewer opportunities to commit acts
    causing harm to society.
   Restraint.

Special deterrence

   Punishment may deter the criminal from committing future crimes.

General deterrence

   Punishment may deter persons other than the criminal from committing
    similar crimes for fear of incurring the same punishment.


   Punishment is imposed to vent society’s sense of outrage and need for


   Imprisonment provides the opportunity to mold or reform the criminal
    into a person who, upon return to society, will conform his or her
    behavior to societal norms.

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   The publicity attending the trial, conviction, and punishment of some
    criminals serves to educate the public to distinguish good and bad
    conduct and to develop respect for the law.


   Purpose of laws is to maximize the net happiness of society.
   Pain inflicted by punishment is justifiable if, but only if, it is expected to
    result in a reduction in the pain of crime that would otherwise occur.
   Actions are morally right if, but only if, they result in desirable
   Balance the expected benefits of the proposed conduct against the risks.
   Threat or imposition of punishment can reduce crime.

   Stress general deterrence. Defendant is punished in order to convince
    the general community to forego criminal conduct in the future.

   Specific deterrence is an alternative goal. Defendant’s punishment is
    meant to deter future misconduct by defendant. Occurs in two ways:
         o Deterrence by incapacitation.            Defendant’s imprisonment
            prevents him from committing crimes in the outside society
            during the period of segregation.
         o Deterrence by intimidation. Defendant’s punishment reminds
            him that if he returns to a life of crime, he will experience more

   Rehabilitation: goal is to reduce future crimes. Use correctional
    system to reform the wrongdoer rather than secure compliance through
    the fear or bad taste of punishment.
   Look forward. Care about the past only to the extent that it helps them
    to predict the future. Do not advocate punishment unless they believe it
    will provide an overall social benefit

   Utilitarian Justification:
          o Principle of utility: the tendency of each action to augment or
             diminish the happiness of the party in question
                 General deterrence: knowledge that punishment will
                   follow crime generally deters criminals

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                  Individual deterrence:         imposition of punishment
                   creates fear in offender that it will happen again if he
                   repeats the act
                  Incapacitation: imprisonment puts convicted criminals
                   out of circulation temporarily and the death penalty does
                   so permanently
                  Reform: punishment may help reform the criminal so
                   that his wish to commit crimes is lessened and he becomes
                   a more useful person


   Punishment is justified when it is deserved. It is deserved when the
    wrongdoer freely chooses to violate society’s rules.
   Wrongdoer should be punished whether or not it will result in a reduction
    in crime.
   Look backward and justifies punishment solely on the basis of the
    voluntary commission of a crime.
   Retribution: looks at past. Punishment for purpose of punishment
   Retributive Justifications: The right of the sovereign as supreme
    power to inflict pain on someone because of a crime committed by him.

Cruel and Unusual Punishment

   8th amendment, specifically the portion that forbids "cruel and unusual
    punishment" along with my occasional one-liner came discussions of
   Questions posed in class:
          o -What constitutes "grossly disproportional" punishment?
          o -Is the death penalty invariably cruel and unusual within the
             meaning of the 8th Amendment?
   Cases on point included: Coker vs. Georgia, Harmelin vs. Michigan

Proportionality in sentencing:

   There is no consensus in the Supreme Court as to whether the 8th
    amendment gives a proportionality guarantee to non-death penalty
    crimes. Solemn v. Helm held that the 8th amendment did afford this
    protection but in Harmelin v. Michigan, Justices Scalia and Rehnquist

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    voted to abandon the decision in Solemn. From now on, therefore,
    federal courts will provide only minimal proportionality oversight of non-
    capital sentences.

   What are the punishment theories?
        o Retribution
        o Rehabilitation
        o Deterrence
               What are the types of deterrence?
                    Specific
                    General

   How do we decide if something is a crime? Statutes.

   Indictment—grand jury.

   Infamation—prosecutor brings charges.

US v. Jackson

   Facts: Charged with armed robbery.
   Notes: Posner uses economic approach to punishment theory: risks,
    cost, and benefit analysis.
   He was not specifically deterred.
   General deterrent effect? Punished for initial bank robbery.
   Is every sentence presumed to have a general deterrent effect?
    Retributive effect?
   Incapacitated=locked up=specifically deterred them (but not mentally).
   He was given a life sentence instead of term of years. Specific deterrence
    did not work. What should work? Incapacitation and general deterrence.
    Have they given up on this individual?
   Dissent: bank robberies taper off when people get older? Retribution is
    not the correct method of punishment.
          o Rejects complete incapacitation in the future but not the present.
          o Rejects general deterrence because it is speculative.
          o Market: put on robber in jail, opens up position for someone
             else to move in.

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Federal Sentencing Guidelines

   Has offense levels and career characteristics (i.e. first time offender).
   Mandatory guidelines.
   Determinate type of sentencing structure.
   Is it consistent?
   No parole board.

   Corporation guidelines.
   Should remorse play a factor?

Coker v. Georgia

   Facts: Escaped from prison. Convicted of rape and sentenced to death.
   Notes:      Vehicle being used for the appeal:           8th Amendment:
    Constitutional argument.
   Jury decided the punishment. Judge decides whether or not to accept
    jury’s decision. Death penalty is a separate, bifurcated proceeding.
   What does jury weigh?          Not looking at facts of case.      Look at:
    Aggravating circumstances and mitigating circumstances.
   The court finds that the death penalty is not cruel & unusual punishment.
    Is killing cruel and unusual?       Does the punishment fit the crime?
    Punishment cannot be excessive.
   How do you determine whether something is excessive? See p. 64.
    Acceptable goals of punishment? Not retribution. General deterrence.
   What constitutes excessiveness? Georgia was the only state with death
    penalty for rape: statistical evidence of what goes on in other states.

   Two arguments raised by defendants: jury instruction, constitutionality
   When is a sentence proportional?

Harmelin v. Michigan

   D sentenced for life after conviction for possession of cocaine.
   Vehicle: constitutionality.
   Solem: 3-Prong Test:
          o Gravity of the offense,
          o Same jurisdiction,
          o Other jurisdictions

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   The court concluded that Solem was wrong
   Proportionality is a retributive concept
   Should a sentence be proportional?
   Death penalty is different.
         o Can examine proportionality for a death penalty case but not for
             other cases.
         o Death penalty is certain, not ambiguous.

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