Introduction Outline

Introduction

1. Rationales for Just Punishment

   1. Retributive: holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.

      1. Emile Durkheim

         1. Retribution can be utilitarian because it creates social cohesion by morally condemning bad acts

            1. Not punishing = disrespecting ourselves

      2. Types

         1. Negative retributivism

            1. Punishment is justified because you deserve it, even if it is clear that nobody else will ever commit this crime ever again.

               1. Michael S. Moore

            2. The innocent should never be punished. Guilty is a necessary precondition for punishment

         2. Positive retributivism

            1. Guilt is both a necessary and sufficient condition for punishment

         3. Assaultive Retributivism

            1. Satisfies society’s need to punish, it is morally right to hate criminals. James Fitzjames Stephen

         4. Protective Retributivism

            1. Respects the rights of the offender, Securing moral balance in society. Herbert Morris

         5. Victim vindication

            1. The wrongdoer has obtained elevation over the victim, this brings it back to normal. Murphy and Hampton.

      3. Rationale

         1. Prevent unjust enrichment

         2. Social utility: stops private vengeance and fosters social cohesion

            1. Studies that show that people feel like the only place they have status is in prison, since their status in society is so low.

      4. Criticism

         1. Is punishment evil?

         2. Equivalence theory leads to excessiveness or barbarism?

         3. Inefficient

   2. Utilitarian

      1. Bentham: maximize human happiness by only justifying pain when its consequences outweight the harm

      2. Deterrence

         1. Bentham: more severe offenses require more severe punishment to induce people to choose the lesser of two crimes, can’t be harsher than it needs to be for deterrence.

         2. General deterrence: uses people as a means. Makes examples of specific deviance.

            1. Counter: you benefit from your own punishment

         3. Specific deterrence: focuses on the exact individual

         4. Rationale

            1. Betters society by preventing future harm

            2. Avoids “evil” punishment for its own sake

   3. Rehabilitation

      1. Forward looking: focuses on future benefits

      2. CS Lewis: “When we cease to consider what the criminal deserves and consider only what will cure him, we have tacitly removed him from the sphere of justice altogether.”

      3. Defendants shouldn’t be used as means to societal ends

      4. US has incredibly high incarceration rate, comparatively

         1. Violent crime and property crime rates are decreasing

         2. Imprisonment rate is increasing

         3. More than a third of felony defendants charged with drug offense

         4. Men: 93%, Women: 7%

            1. Men imprisoned at a rate 15 times higher than females

         5. White: 34%, Black: 38%, Hispanic: 20%

            1. Black males imprisoned at a rate 6.5 times higher than white males

   4. Incapacitation

      1. Selective incapacitation: targets people who they think are more likely to repeat crimes later

   5. Vengeance/social cohesion

      1. Less likely that someone will take it upon themselves to carry out punishment from their own hands

      2. Restorative justice: make the victim whole

   6. Model Penal Code §1.02, subsections 2(a) and (b):

      1. Sentencing provisions are intended to “prevent the commission of crimes (deterrence) and to promote the correction and rehabilitation of offenders.”

2. Mechanics of Criminal Justice System

   1. Pleas

      1. Does the existence of plea bargaining advance or detract from the cause of justice?

         1. Intimidation

         2. Rationality – you think you’ll lose and you’ll like to wage your chances

         3. Mental illness

         4. Defense attorneys get paid lump sum up front

         5. People who commit the same crime don’t get the same plea bargain (gender, race, socioeconomic status)

   2. Trial Process

      1. Voir Dire/jury selection – opening statements – government case – MJOA – defense case – Renew MJOA – Government Rebuttal – Jury instructions – Closing argument – deliberations – verdict

3. Juries & Prosecutorial Discretion

   1. Constitutionally – 6 required. If only 6 – must be unanimous. Normally there are 12.

      1. Voir Dire = judge and attorneys ask potential jurors very intimate questions

   2. 6th Amendment: criminal prosecutions = right to jury trial at federal level

   3. 14th Amendment = due process as it applies to states

   4. Duncan v. Louisiana (1968) – pg 42. Black man, simple battery, concerns regarding judge because there was a lot of discrimination in the parish.

      1. Concept of incorporation of Bill of Rights against the states through the 14th Amendment

      2. Jury trial for serious crimes is seen as necessary to due process. Fundamental part of our justice system.

      3. Jury important not merely because judges and prosecutors might be corrupt, but because they might to be sufficiently sympathetic or democratically accountable.

      4. Right to jury trial depends on severity of crime, which is determined by length of jail time. (misdemeanor = no; serious = yes)

   5. Should the following be allowed?

      1. Jury explicitly asks if it has the power to acquit notwithstanding the law (Fernandez)

      2. Instruction telling jurors to tell judge if any juror says he’s going to nullify (Engelman)

      3. Dismissing a juror for cause if he says in voir dire that he believes in nullification “where appropriate”?

      4. Prosecution seeks a nullification instruction in a rape case where the defendant invokes the marital rape exception?

   6. Power of nullification (de facto power of juries)

      1. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations.

      2. Maryland Instructions: whatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it. And you may apply the law as you apprehend it to be in the case.

      3. United States v. Dougherty (1972) - pg 51 : destroyed property in Dow Chemical to attempt to publicize opposition to Vietnam war. Judge denied defense opportunity to propose acquittal based on moral justification to jury. Judge also denied jury instruction on Power of...

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