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September 1, 2020

Does the text or spirit of the US Constitution favor or prioritize any particular theory of punishment? Any special "who"?

6a00d8341c8ccf53ef0133f349d009970b-800wiAs I mentioned briefly in class, and as will be useful as we turn to some famous and consequential Supreme Court rulings, I am eager for you to start giving thought to whether the text or spirit of the US Constitution favors or prioritizes any particular theory of punishment or any particular "whos" in a sentencing system.

Of course, there are lots of provisions of the US Constitution that might be considered in this discussion.  But this abridged set of provisions can usefully get this conversation started:

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 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."

September 1, 2020 in Class activities, Who decides | Permalink


I think the constitution is very much a retributivist document. Protections against double jeopardy, excessive punishment, due process, habeas protection, etc., all indicate that the founders were most worried about protecting against a criminal justice system that would get it wrong (as they would problematically define that), much in tune with the rest of the limiting principles found elsewhere in the document. It should be noted that the Bill of Rights did not apply to the prosecutors and judges most responsible for the administration of criminal justice in early America, the states. I'm not sure there were that many cases these protections came up, outside of crimes in federal territories, treason, piracy, and in states where there were state constitutional provisions. But I think because those retributivist princples are so baked in to the fabric of the system, that we think of them as constitutional principles and not retributivst, much like equal protection.

Posted by: Evan | Sep 2, 2020 10:33:53 AM

I think the constitution intentionally does not favor a single theory, but rather, left it to the states to determine how best to deal with those who broke the law. It affords individuals a degree of basic rights, such as speed trial and the right to a jury, but more importantly in my opinion, it requires that those trials be held in the state where the crimes were committed, and that the jury be composed of individuals from the state and district where the crime was committed. That to me is the special "who" that is built into the constitution.

Posted by: Christopher Wald | Sep 3, 2020 2:12:51 PM

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