Purpose(s) of Punishment

JCE: Chapter 10-11

From last class…

• Prosecutors face unique ethical challenges as they must satisfy public concern as well as win cases and serve the criminal justice system.

…to this class

• As we say with AD Corey, who charged George Zimmerman with Murder (rather than manslaughter), sentencing a suspect is a crucial component of the prosecutor’s concern.

Punishment Defined

“the infliction by the state of consequences normally considered unpleasant, on a person in response to his having been convicted of a crime.” (171)

How is punishment distinct from torture?

• Response to Conviction?• Nature of punishment? (severe pain)• Inflicted by the State?

Punishment Defined

“the infliction by the state of consequences normally considered unpleasant, on a person in response to his having been convicted of a crime.” (171)

How is punishment distinct from torture?

• Response to Conviction?• Nature of punishment? (severe pain)• Inflicted by the State?

Punishment Example: Gissendaner

Kelly Renee Gissendaner was the first woman executed in Georgia in 70 years. She was convicted in the 1997 murder of her husband, Douglas Gissendaner. Prosecutors said she conspired with Gregory Owen, her boyfriend, who stabbed the husband to death. Owen testified against Gissendaner in a plea deal that left him with a sentence of life in prison without chance for parole. Her application for clemency notes that she has been a model prisoner and that the person who actually carried out the crime received a lighter sentence than she did.

Punishment Purposes

• Deterrence (preventing crime)• Incapacitation (protection of citizenry)• Treatment (correction)• Desert (retribution: ‘pound of flesh’)• Restoration (restorative justice)

Punishment Purposes

• Deterrence (preventing crime)• Incapacitation (protection of citizenry)• Treatment (correction)• Desert (retribution: ‘pound of flesh’)• Restoration (restorative justice)

Deterrence?

To deter others from criminal acts by punishing those who have been found guilty, one must:

1) Have a severe punishment.2) Must impose punishment no matter

what.

Was Gissendaner’s capitol punishment justified on grounds of deterrence?

YESa) Others will be afraid to commit a

similar crime.b) The guilty offender will not commit

another crime in the future.NO

a) Deterrence is not very effective. Others will commit the same crime.

Paradox of Retribution (Mackie)

Punishment is utilitarian: some good must come from the act of punishment (exempting desert).

But, punishment may not lead to good. Imagine a crime committed by a suspect that, though caught, is not punished and does not commit another crime again (e.g. juvenile getting verbal warning). In this case punishment would not have led to a better outcome.

BUT, we cannot help but feel that SOME punishment is warranted for EVERY crime.

Paradox of Retribution (Mackie)

Punishment is utilitarian: some good must come from the act of punishment (exempting desert).

• Deterrence (preventing crime)• Incapacitation (protection of citizenry)• Treatment (correction)• Desert (retribution: ‘pound of flesh’)• Restoration (restorative justice)

Desert: Is retribution justified?

Desert: Regardless of the outcome, it is good to punish out of principle of ‘satisfying’ the crime.

Benefit: Fairer sentences: (Gissendaner)“We can punish only guilty criminals and only in

proportion to the seriousness of their crime” (177)

Costs: “2 wrongs, no right”

New sentencing legislation

Punishment Irony

• Generally, if we punish to get a good consequence, we get a bad consequence. (Punishment is greater than the crime. E.g. “War on Drugs”)

• Generally, if we punish to get our pound of flesh rather than good consequence, we still get a good consequence. (Punishment fits the crime—equity. E.g. “War on Sentences”)

Equity Test Case: Minimal Sentencing

Judges are required to give mandatory sentences for crimes. (For example, a judge may be required to sentence a person to 2 years in jail for their 3rd DUI.) But, the parole authority determines that actual amount of time to be served. So, mandatory sentences are not actually enforced and do little in effect. (E.g. Drug offenders ~33%, Theft ~40%)

Response: Truth in Sentence—Violent offenders must serve at least 85% of their sentence.

Equity Test Case: Three Strikes

Defendants already convicted of two or more "strike" charges arising from one single case, have been charged and convicted with a third strike for any felony (including "felony petty theft" or possession of a controlled substance prior to Proposition 36) and given 25 years to life.

Problem with Inequitable Punishment: NO DETERENT!

• If a suspect believes they can ‘cheat’ the criminal justice system with a lenient actual punishment, then they are more inclined to commit the crime.

Extra “Deterrent” problem:

• Often a criminal is sentenced to deter their committing future crime. Thus, the reason punishment is greater if justified by deterrence is that the punishment is also for their future crimes they commit.

– Is it fair to punish someone for a crime they have not (yet) committed?

• YES! We can predict that most criminals repeat offense.• NO! We can only predict at 50% repeat offence (Chance).

Final Problem: Discrimination

• Three Strikes Law in California

– 3% of total CA population is African American– 33% of second-strikers are African American– 44% of third-strikers are African American– Females are only rarely third-strikers but if so, they

are overwhelmingly African American

Final Problem: Discrimination

http://bauscharddebate.com/2015/09/15/racism-incarceration-racism-update/

Summary Punishment Purposes

• Deterrence (preventing crime)• Incapacitation (protection of citizenry)• Treatment (correction)• Desert (retribution: ‘pound of flesh’)• Restoration (restorative justice)

What basis of punishment is justified? Why?