WEEK 2 NOTES – PUNISHEMENT

1/20/10

What are the five major theories?

 Retribution – looks at what happened

 Deterrence – Future oriented (consequentialist/utilitarian)
 Incapacitation – Future oriented
 Rehabilitation – Future oriented
 Denunciation – Shamming which is both pro and retrospective.

Retribution (40)

 One of the major theories today (Deterrence being the other)

 Emanuel Kant – you did something bad something bad will happen to you (“just desert”).
o What if the person wants the punishment being subscribed? (See Morelos case on page
40)
 No; because to want something eliminates the effects of punishment.
 Criticism
o Cannot always be equal to the crime. Cannot always calibrate just deserts.
 Credit card theft example where the judge decided to allow the victim to take
from the criminal’s home.
o Who decides the just deserts?
o The innocent might suffer.
o It is somewhat base – it is vengeful and archaic. Just because it is the oldest does not
mean that it is the best.
Deterrence (44)

 The cost/benefit analysis where rational actors balance these factors.

 Key aspects of deterrence involve a balance of INCENTIVES and PUNISHMENTS and the
likelihood of punishment.
 Theorist believe in specific or general.
o Specific – deterring one person from doing something again. Based on the individual
o General – everyone is punished in the same manner. This informs the population that
this is what will happen if you commit the same act. Aimed at stopping the population
from committing the same act.
 Criticisms
o Not all people are rational actors. People are irrational.
 Criminals tend to be irrational. They act impulsively because they do not plan
ahead.
o Assumes that people don’t like to be punished
 Some criminals gain respect from being punished. The Code of the street reigns.
(page 45)
 Bullies might relish being sent to detention.
 Some might feel as though they are better off prison. Assumes people are better
off outside of prison.
o It uses people. If the goal is to set an example for others it uses others.
 LAW & ORDER Clip – mercy killing and copycat.
 The effects of crime & punishment are not just micro but macro. Any form of
punishment involves the use of people.
Incapacitation (46)

 Based on the idea that if person A is off the street, then A will not rob more people.
o Problem – someone will fill the void (i.e. drug traffickers).
 Supply-demand of Adam Smith
 Assumptions:
o There must be some accuracy in predicting recidivism, school of crime, and people are
going to be recidivists.
 Collective: everyone convicted of the same crime receives the same punishment.
o Problem: fairness issue
 Selective: individualized sentences based on predictions that particular offenders would commit
serious offenses at a high rate if not incarcerated.
o The risk of A reoffending is higher than B, therefore, A should be held longer.
o Problem: fairness issue - Class based &/or minority based (not equal)
 The cost of keeping someone in prison might be worth the decrease in crime.
 A lot of people support this theory.

Rehabilitation (51)

 Not popular today

 Based on the idea that if we give someone treatment it will be more effective than
incarceration. Also, it will lead to people seeking out help more often.
 Measured by the rate of recidivism.
o Usually this involves control groups of first time offenders.
 Hypo: what should be the punishment for someone who was stealing to fund a drug addiction?
For a dying relative?
o Rehab; regular sentence.
o What if this equals 2 years; 90 days in prison.
 Under pure theory argues this is fair.
 This does not fit with retribution and could by the theory has not gone very far.
 Criticism
o Not effective
o Humaneness
o Fairness – disparate treatment of similar criminal offenses.
 Allocate resources to someone who has transgressed. Why not give the money
to the victims.
 Rehabilitation: seeks to reduce future crime by reforming the wrongdoer through psychiatric care,
therapy for drug addiction, etc.

Denunciation (57)
  Goals:
 Make them wear t-shirts that say “I’m a thief!” license plates, etc.
 Benefits: it could deter criminals from committing crime,
 Detriments: some people don’t care, effect is less calculable, the shaming could be far worse, if
it’s overly disproportionate people could lose respect for the law.

Problem 2.4 (PLA Case)

 Was this a serious crime? Yes; absolutely, as suggested by the possible 15 year sentence.
 Is the seriousness negated by the facts?
o Nobody was hurt
o Post incident good works
 Under Retribution Theory
o 15 years would be just.
o It was only a fluke that nobody was hurt.
o She is blameworthy.
 Under Deterrents (consequentionalists)
o Not necessary to punish because she has proven that she does not need to be deterred
(specific)
o It is necessary to punish severely because not punishing her would incentivize those
who commit crimes that they can be wiped away by good works (general).
 Under Incapacitation
o Not necessary because the risk of recidivism is low.
 Under Rehabilitation
o Not really necessary because it appears as though she has rehabilitated herself.
 Under Denunciation
o Would an apology suffice?

HISTORY OF PUNISHMENT

 Historically:
o Shaming was originally very popular (stocks)
o Hanging, mutilations, whippings, etc.
 Currently:
o Fine or restitution
o Imprisonment
 County Jail: local lockup, misdemeanors or awaiting a felony trial.
 Prison: state prison
o Probation
 Restraint on custody to avoid jail
 If you violate probation (VOP) the individual will be sent to prison.
o Parol
 When an inmate is released after only 2 years of a 5 year sentence. For the next
3 years the inmate will be monitored by the State.
 How do you decide whom to punish?
o Not everyone can be punished because it would be a misallocation of resources.
 o Page 65 – San Francisco Prostitutes Case
 The prosecutors could have brought charges against both the “johns” and the
prostitutes, but only the prosecutors were charged.
 What are the positive reasons for this approach?
o Just as in a drug case, the dealer is more culpable.
o More economical to lock up one prostitute.
o Easier to get evidence against the Johns
 What are the negative associated with this approach?
o The prostitutes are easier targets.
o Possible gender/class discrimination.
o It will not improve the situation because until the demand is
decreased (the johns) the supply (prostitutes) will be available.
 Incarceration statistics
o Crime rates are not rising yet the incarceration of black males is increasing [sentencing
disparity].
 Mechanics of Sentencing (judicial activism can lead to one being preferred over the other). Page
24 of lexus.
o Determinative – specified period of time
o Indeterminative (Utah) –
o Federal Level – Sentencing Table (page 71)
 How Much Punishment (page 74)
o Three Strikes Law
 First offense – normal sentence
 Second offense – double the normal sentence
 Third offense – triggers the 3 strikes law if a violent crime in accused history
o Issue with Three Strikes Law/means of avoidance
 Wobblers: prosecutors can classify certain crimes as either a misdemeanor or a
felony. (page 78-79)
 Judge’s Discretion: judges can vacate previous convictions to avoid the three
strikes.
o Ewing v. California
 Asked the court to treat his crime as a “wobbler” and/or the court to vacate
allegations of prior “serious” or “violent” felony convictions.
 This is a really good test case for the Defense. There probably isn’t a better
poster child for criticism of the three strikes law.
 The appeals court upheld the lower court and state court.
 Filed a writ of certiorari based on a violation of civil rights/bill rights (8 th
Amendment).
 Argued that the life sentence was grossly disproportionate.
 The key issue is PROPORTIONALITY.
 Justice O’Conner:
 Does she suggest that it is a broad principle or narrow concept?
o Narrow and exceedingly rare because legislatures are allowed
to establish their own sentencing laws. It must be grossly
disproportionate.
o Grossly Disproportionate (see lexus page 59): must know that
it is exceedingly rare and difficult to establish.
  She accepts the prosecutor’s argument that Ewing was being sentenced
for the golf club theft but for his criminal history.
 We should give deference to state legislature as long as there is a
rational basis under punishment theory.
o Rational: deterrents, incapacitation,
 Conviction sustained.
 SIDE NOTE BY PROFESSOR
o There are two argument that are made in law school
1. Institutional arguments
 i.e. judges should determine sentences vs.
judges cannot be trusted.
2. Rules vs. Standards
 i.e. hard and fast rules vs. guidelines that take
into account individualities of each case.
o Standards argument: flexibility but
slippery slope.
o Rules: inflexibility but unfair.
o Proportionality
 Why is proportionality the goal? Which type of punishment theory does it
violate?
 Deterrent: could create an over deterrent and decrease its value. It
creates a disconnect.
 Retribution: punishment does not match the crime.
 If states have different sentences, why should we respect the differences?
 Because it each state has the right to establish its sentencing regime
because they should reflect the populous’ belief.
 This is limited only when the sentence violates the Constitution (8 th
Amendment)
 Making Law
o Legislatures and Judges
 Common Law: judge made law.
 Role in Criminal law: it is the means of interpreting ambiguities in
statues. Some states that have made the common law completely
inapplicable. Most jurisdictions, it is out there but it does not carry
much weight.
o The major reason behind the statutory supremacy is the need to
put people on notice before they can be charged with a crime.
(Ex post Facto)
o Judge vs. Legislature: this battle often comes up when there is
an ambiguity because it is unclear whether the judge or the
legislature should fill in the blank.
 Keeler v. Superior Court (see case brief)
 Defendant was charged with murder.
 Ambiguity: is a fetus a human being?
 Justice’s Opinion
o Provision was taken from 1872.
o First step in statutory interpretation – plain language
 o Second step – legislative intent when plain language is unclear.
The common law definition was examined because it was the
intent behind the legislation.
1. No authority to enlarge: Court disregarded the
scientific developments because it is not the place of
the courts to ENLARGE the statute/law. The legislature
has the authority to enlarge the statute.
2. No constitutional authority: it would violate Due
Process based on an ex post facto law. A law must
provide fair warning.
3. Dynamic Static Interpretation: uses a modern lense
o Dissent: follows the first two steps but interprets the legislative
intent as being “quickened”
1. The common law reluctance to characterize the killing
of a quickened fetus as a homicide was based solely
upon a presumption that the fetus would have been
born dead. (what is human is not static but elastic)
2. He then applies the Dynamic Static Interpretation. He
argues that an unborn fetus is a human because when it
is a viable fetus.
3. Notice requirement and fair warning was given because
the statute was ambiguous, the defendant should have
know that HE COULD BE charged with murder. Rejected
by the majority.
 Legislative Supremacy
o Arguments for: the legislature is elected by the people given the stakes involved,
accessibility of law is easier than finding case law which more effectively puts the public
on notice (fair warning),
o Arguments against: judges are better positioned to keep the law current and respond to
individual situations,
 The Executive Branch (112) – the prosecution, government
o The prosecution can determine whether to allocate resources in one direction instead of
another, which can send a message as to what really matters.
 Jury (119)
o Why would a Defendant choose a bench trial?
 Juries are emotional
 Complex issues
o How can juries shape the law?
 Juries can, by way of verdict, interpret a statute.
 Jury nullification – inexplicable results (man is obviously guilty yet the jury
acquits).
o United States v. Dougherty
 Protest against the Vietnam War and the Ds were clearly guilty of the crime.
 The Ds asked the jury to reject the law by way of jury nullification.
 Judge would not allow a jury instruction regarding jury nullification
because they might be inclined to use it. It is dangerous to inform them
 of it. Also, the judge argued that the jury already knew about jury
nullification.
 THERE ARE NOT JNOVs IN CRIMINAL LAW
 Attractiveness of Jury Nullification: protects against unlawful prosecution
 Unattractiveness of JN: all white jury lets of white man who kills African
American.