October 28, 2016

Two timely new commentaries in light of our Graham-based discussions of "legal" adulthood

I have been quite amused to see these two headlines on two notable commentaries published since our last class:

The first of these articles starts this way:

Consider three young people: An 18-year-old who can vote, but can’t legally buy a beer; a 21-year-old who can drink, but is charged extra to rent a car; and a 25-year-old who can rent a car at the typical rate, but remains eligible for his parents’ health insurance.

Which one is an adult? All of them? None of them? Some of them? Or does it depend on the individual?

These questions are newly salient in the criminal justice system.

October 28, 2016 in Aggravators and mitigators, Class activities, Theories of punishment | Permalink | Comments (2)

October 12, 2016

How some Framers thought about "gradation of punishments" (and proposed sentencing guidelines) in a world before "modern" prisons

One of my all-time favorite documents in the history of US sentencing law and policy is this document authored by Thomas Jefferson in 1778 under the title "A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital."  I recommend a read of the entire document (as well as this historical discussion of its backstory and its rejection by one vote).  Here I have reprinted the document's preamble and provisions proposing a range of different forms of punishment, all of which seem especially interesting as we move from a discussion of the modern death penalty to other forms of modern punishment [I HAVE THROWN IN A FEW EDITORIAL COMMENTS IN ALL CAPS AND BOLD FOR ENHANCED READING]:

[STATEMENT OF PRINCIPLES AND PROPORTIONALITY:] Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

[STATEMENT ABOUT THEORY OF PUNISHMENT:] And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

[PUNISHMENT FOR MOST SERIOUS CRIMES:]  If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever shall commit murder in any other way shall suffer death by hanging.

And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only where one shall slay the Challenger in at duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth....

[PUNISHMENT FOR LESSER HOMICIDES:] Whosoever shall be guilty of Manslaughter, shall for the first offence, be condemned to hard labor for seven years, in the public works, shall forfiet one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed Murder....

[PUNISHMENT FOR SEX CRIMES:] Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

[PUNISHMENT FOR SERIOUS ASSAULTS:] Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

[PUNISHMENT FOR SERIOUS ECONOMIC CRIMES:] Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.

Whosoever committeth Arson shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.

If any person shall within this Commonwealth, or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers three-fold.

Whosoever committeth Robbery shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.

Whatsoever act, if committed on any Mansion house, would be deemed Burglary, shall be Burglary if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured....

[PUNISHMENT FOR LESSER ECONOMIC CRIMES:] Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured....

[PUNISHMENT FOR PUBLIC DISORDER CRIMES:] All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes....

[SPECIAL DEFENDANTS:] Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.

October 12, 2016 in Alternatives to imprisonment, Class activities, Death penalty history, Theories of punishment, Who decides | Permalink | Comments (0)

August 24, 2016

Some background reading on (various forms of) castration as a punishment for sex offenders

Since I keep managing to end class with lingering questions about castration as a punishment for sex offenses, I figured I would use this blog space to highlight some existing literature on this topic.  Perhaps my main goal here is to be sure I do not leave the impression that I am the only one who thinks (too much?) about the potential pros and cons of castration as a punishment for sex offenders:

I do not expect anyone to read all these materials (or even any of them if this topic creeps you out), but perhaps one or more of you might find this topic interesting for a future mini-paper or final paper. And, speaking of topics of interest for mini/final papers, I promise on Monday to start the class by going around the room and having folks describe a sentencing/punishment topic of personal interest.  Once we have that discussion, we will then jump hard into the Williams case.

August 24, 2016 in Alternatives to imprisonment, Class activities, Theories of punishment | Permalink | Comments (2)

February 25, 2015

Various posts on the subjective experiences of punishment from SL&P (and a timely article about prison rape)

Following up on today's class discussion (and tomorrow's video) concerning imprisonment and the subjective experiences offenders may face, here are various posts of note from the archives of Sentencing Law & Policy:

These posts are a mix of links to serious academic articles and interesting real-world cases on some topics we covered in class.

Finally, I just noticed that The Atlantic has this lengthy new article about another part of the subjective experience of imprisonment for many.  The piece is headlined "Rape in the American Prison: In 2003, Congress passed legislation to eliminate sexual assaults against inmates.  One young man’s story shows how elusive that goal remains."

February 25, 2015 in Class activities, Theories of punishment | Permalink | Comments (4) | TrackBack

January 15, 2015

Who are similar defendants sentenced for similar crimes to Dzhokhar Tsarnaev and John Rowland . . . AND WHY DO WE CARE?

As the text reveals, federal sentencing doctrines and state sentencing laws express in various ways an interest in achieving consistency in sentencing outcomes across a range of cases:  e.g.,

Arguably, the US Constitution might be thought (at least since the end of the Civil Law) to demand consistent sentencing outcomes over a range of cases: the Fourteenth Amendment, of course, precludes governments from "deny[ing] to any person within its jurisdiction the equal protection of the laws."

We will begin next week by discussing the normative and practical issues raised by these kinds of commitments to sentencing consistency.  Normatively, I hope students can explain why we should have a strong commitment to sentencing consistency, especially if there is reason to worry that such a commitment may complicate efforts to achieve justice in each individual case.   Practically, I hope students can explain how we can effectively determine who are, in the words of federal law, "defendants with similar records who have been found guilty of similar conduct"?  Helpfully, the on-going federal cases highlighted in the questionnaire provide a real-world lens to focus concretely on these abstract questions. 

Here is an alphabetical list of some defendants arguably similar to Dzhokhar Tsarnaev (links via Wikipedia and with carnage; federal sentences they received):

Especially given that Tsarnaev is surely most similar to all those on this list other than McVeigh, does a commitment to sentencing consistency entail that Dzhokhar Tsarnaev must get an LWOP sentence?  If a federal jury in the Tsarnaev case were to return a sentence recommendation of death, should the presiding federal judge ignore that recommendation and impose LWOP in order to "avoid unwarranted sentence disparities" among similar defendants?

Here is an alphabetical list of some defendants arguably similar to former Connecticut Gov John Rowland (links via Wikipedia when available and federal prison sentences received):

Given that Rowland is facing sentencing for his second federal fraud/corruption charges, shouldn't concerns about sentencing consistency demand he now get a federal sentence of at least 6.5 years if not a lot more?

UPDATE as of 11am Monday: Kudos to those students who have already shared thoughtful comments below about the importance and challenges of achieving sentencing consistency.  

One important additional factor in this critical debate which we will discuss in class today (and throughout the semester) is WHICH ACTORS in the criminal justice system should be especially concerned with seeking sentencing consistency and HOW PROCEDURLLY shoud greater consistency be pursued:  e.g., should legislatures be especially concerned with sentence consistency and pursue it by enacting detailed sentencing guidelines and/or should sentencing judges be especially concerned with sentence consistency and pursue it by thoroughly researching "comparables" before imposing a sentence.

One especially notable actor in an especially notable setting that must confront these concerns a lot is a prosecutor in a jurisdiction with the death penalty.  For example, is it virtuous for an Ohio prosecutor, in the name of consistency, always pursue a capital charge for any statutory eligible murder and refuse to plea the case down to a lesser punishment (which is the stated policy of long-time Hamilton County prosecutor Joe Deters)?  Alternatively, as this new post on my main blog hints, should we be critical of the Colorado prosecutors in the Aurora killer James Holmes case for not being willing to take an LWOP plea given that prosecutors have often cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter). 

January 15, 2015 in Class activities, Data on sentencing, Offense Conduct, Theories of punishment | Permalink | Comments (7) | TrackBack

April 08, 2014

Other than criminal history, is there any specific "offender characteristic" that you think must be considered at sentencing? If so, how?

As we start digging into the  challenging and dynamic sentencing topics of offender characteristics at sentencing, two fundamental questions arise: (1) what specific offender characteristics should or must never be considered at sentencing, and (2) what specific offender characteristics should or must always be considered at sentencing.  As is our norm, we will unpack these issues aided generally by current federal sentencing realities (and specifically through a discussion of Problem 5-4 in our text).

Generally, there are thought to be a couple of easy answer to these questions: for (1), we are often quick to say that race should or must never be considered at sentencing; for (2), we are often quick to say that criminal history should or must always be considered at sentencing.  Though we could question the soundness of these pat answers, I think it will be more beneficial to explore what other offender characteristics we might think should be on either the never or the always list.

Focusing on the always list, one might interpret the Supreme Court's recent Eighth Amendment rulings in Graham and Miller as a statment that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  Relatedly, as discussed in this recent post on my main blog, a number of states have enacted laws or considered bills to require consideration of military service and/or PTSD at sentencing.

Would you embrace and endorse a sentencing system that demands that all sentencing judges in all cases give consideration to an offender's age and history of military service?  If you think these or other specific offender characteristics must be considered at sentencing, are you inclined to give judges broad discretion as to how they consider these matters or would you think it better to have guidelines that articulate with specificity just how these specific offender characteristics should be incorporated into non-capital sentencing.

April 8, 2014 in Guideline sentencing systems, Theories of punishment | Permalink | Comments (10) | TrackBack

January 14, 2014

How Thomas Jefferson would have sentenced Richard Graves

I suggested in Tuesday's class that, if incapacitation was a key goal/purpose when sentencing convicted rapist Richard Graves, that castration would seem likely much more effective than any term in prison. (Indeed, given ugly statistics concerning prison rape, a trip to prison might be the worst way to prevent Graves from raping again.) But I surmised that some (many? most?) members of the class have a visceral negative reaction to castration as a form of punishment. But why?

If you had a visceral negative reaction to castration, I urge you to read and reflect on Michel Foucault's astute insight (reprinted in Chapter 1 of the text) that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment. In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that very few forms of punishment have ever been the subject of Supreme Court review.

Moreover, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson suggests at least some Framers approved and endorsed castration as a punishment for some crimes. This Jeffersonian document, titled "A Bill for Proportioning Crimes and Punishments," includes these notable passages (with my emphasis added):

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15, stripes....

I highly encourage everyone to read (and then comment upon) the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.

January 14, 2014 in Alternatives to imprisonment, Theories of punishment, Who decides | Permalink | Comments (4) | TrackBack

February 26, 2010

Snow day readings on revising the MPC sentencing provisions

I briefly mentioned at the end of class this past week that the American Law Institute is in the midst of revising the Model Penal Code's sentencing provisions, and that I have been critical of some of the structural changes that the MPC revision is advocating.  If you want to do some snow day reading of my writings on these matters, check out this piece from the September 2009 issue of the Florida Law Review, which is titled "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions."

In addition, you can find other terrific (and relatively short) readings on the Model Penal Code's new sentencing proposals in this issue of the Florida Law Review.  As always, comments are welcome and encouraged on these topics.

February 26, 2010 in Scope of imprisonment, Theories of punishment | Permalink | Comments (1) | TrackBack

February 06, 2009

Did you notice what theory of punishment is being pursued by USA Swimming...

in its punishment of Michael Phelps?  Here is the organization's official statement:

USA Swimming has reprimanded Michael Phelps under its Code of Conduct by withdrawing financial support and the eligibility to compete for a period of three months effective today, Feb. 5, 2009.

This is not a situation where any anti-doping rule was violated, but we decided to send a strong message to Michael because he disappointed so many people, particularly the hundreds of thousands of USA Swimming member kids who look up to him as a role model and a hero.

Michael has voluntarily accepted this reprimand and has committed to earn back our trust.

Some related posts from my other blog:

February 6, 2009 in Theories of punishment | Permalink | Comments (3) | TrackBack