CRIMINAL LAW Punishment Outline Page 1 of 6 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 Incapacitation • 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. Retribution • Punishment is imposed to vent society’s sense of outrage and need for revenge. Rehabilitation • 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. CRIMINAL LAW Punishment Outline Page 2 of 6 Education • 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. Utilitarianism • 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 consequences. • 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 pain. • 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 CRIMINAL LAW Punishment Outline Page 3 of 6 • 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 Retributivism • 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 proportionality. • 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 CRIMINAL LAW Punishment Outline Page 4 of 6 voted to abandon the decision in Solemn. From now on, therefore, federal courts will provide only minimal proportionality oversight of noncappita 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. CRIMINAL LAW Punishment Outline Page 5 of 6 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 CRIMINAL LAW Punishment Outline Page 6 of 6 • 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.