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August 24, 2010

Does the text or spirit of the US Constitution favor any particular theory of punishment?

USCon The question in the title of this post will be our main topic of conversation during our Tuesday class, and I thought it might be useful to start the conversation in this space by quoting some of the key provisions of the U.S. Constitution that might be most pertinent to this discussion (and/or that arise most frequently in criminal case litigation).  So, for your consideration:

The Preamble:  "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Part of Article I:  "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  No Bill of Attainder or ex post facto Law shall be passed."

Part of Article II:  "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Part of Article III:  "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."

Amendment V:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...."

Amendment VI:  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

August 24, 2010 in Course materials and schedule | Permalink

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Comments

When thinking about the parts of the constitution posted, it's arguable that there is both a utilitarian and retributivist perspective of each aspect. For me, the part of the 8th amendment posted has a large utilitarian aspect. On some level, this is an efficiency argument. Inefficiency would result if society were to allow bail and fines to be set above their optimal level. With regard to cruel and unusual punishment, scarce resources would be wasted if, for example, we incarcerate a prisoner longer than necessary. This leads to the retributivist aspect of this amendment. A prisoner does not deserve to be incarcerated longer than reasonable or pay a fine larger than reasonable. This notion of what is deserved is central to the retributivism. Perhaps it is positive that at least this amendment reflects a balance of the retributivist and utilitarian perspectives.

Posted by: Rachel Ladan | Aug 26, 2010 11:15:46 AM

For me, Article II is definitely Utilitarian for two reason: 1. I would ASSUME that if the President is getting involved and pardoning someone, there is a GREAT reason for it whether political, moral, etc. So, a Utilitarian would like that the president is not just sticking to the if you did something, you must be punished. His decision to pardon must have been a result of some sort of cost-benefit analysis. 2. It's clearly NOT Retributivism...lol. I guess MAYBE if the pardon resulted from some notion of the person's innocence, a retributivist would not mind that. However, it were just political, moral, etc. reasons then a retributivist would definitely opposed to "excusing/saving" the person from their just deserts.

Posted by: Samil Pullen | Aug 26, 2010 1:03:54 PM

The Preamble: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

- I think the Preamble says it pretty clear that the whole point of this constitution is to form a more perfect union. <-- this seems pretty utilitarian to me. Sure, we care about procedural justice, ensuring rights of individuals (Even though Utilitarians have a really hard time even discussing the concept of "rights"), and give and limit powers to the federal and state governments because we think it will be BEST for our country to do it. All in all - Utilitarianism doesn't prescribe ONE method of how we get to the ideal consequences... JUST THAT WE DO WHATEVER IT IS NECESSARY to ensure the greatest amount happiness for the greatest number of individuals. As a utilitarian, if it's in the best interest of society to pretend that rights exist, or to talk of the notion of justice then that's what we should do (regardless if we don't know exactly how these things are hashed out).

Posted by: Sara Smith | Aug 30, 2010 6:22:30 PM

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