Criminal Law Class Notes 8/26/03


Model Penal Code 1.02


This section separates the questions of the general aim of the criminal law from the purposes of punishment in particular.


§1.02(1)(a) and (b) sound utilitarian, yet (c) sounds retributivist.


And again…§1.02(2)(a) and (b) sound utilitarian, yet (c) sounds retributivist.


1.     Any time you are looking at a criminal code, you would be well served to check whether or not there is a section like this at the beginning that sets out the theories of punishment that code will follow.  This particular code sort of says, “We like a lot of everything.”  The American Law Institute believes that the world has passed the Model Penal Code by when it comes to theories of sentencing.  The changes that are now being considered will change the main focus to retributivism as the main factor in punishment.  The drafters of the code were predominantly utilitarian, but the current drafters of the code are more retributivist.


§1.04 discusses classes of crimes.


Article 6 discusses degrees of felonies.  It also discusses the penalties for felonies.


In the old days, the judges sentenced people to terms of, for example, “six years to life”.  The parole board would decide when you get out.  This ties into the rehabilitation role of a utilitarian theory of punishment.  The parole board will release you if “you’re better”.  The judge can only choose the minimum sentence, and it’s otherwise up to the parole board.


In the old days, the prison, or penitentiary, is a place you would go to think about what you had done and try to change yourself for the better.  In the Fifties and Sixties, it was felt that a lot of crime was related to being poor, uneducated, or mentally ill.  We don’t generally claim to believe in rehabilitation anymore.


Prisons are much worse places to be now than they were in the Sixties and Seventies.  We’re not really trying rehabilitation.


People v. Du


The judge had a choice of 3 years, 6 years, or 11 years in prison; or putting Du on probation.[1]  In California law, the presumption is for the middle figure.


Why go one way or the other?  Is it relevant that Du is older?  Could the quality of the punishment be different if she is older?


A retributivist would say two criminals should get the same punishment for the same crime.


What about going as high as the law allows?  How about general deterrence?


Could we have creeping views?


Does it matter if a defendant has a fear of harm?  Could that be a justification?


Retributivists say you must look at the actor as well as the act; you must look at personal blameworthiness as well as the social harm caused.  One controversy is whether a person’s personal character matters or should be considered.


“Pouring gasoline on the fire” – should a judge take the public response to a sentence into account?


Follow-up on Du: the family of the victim sued the Du family.  They settled for $300,000, which was paid by the insurance company.  Judge Karlin was a former federal prosecutor appointed by Pete Wilson.  As a result of the sentence she imposed, African-American leaders sought a recall, and there was an election held based exclusively based on this case.  Karlin kept her job with 50.7% of the vote.  There were two subsequent recall efforts that failed by more each time.  The ironic twist: the councilwoman who led the recall movement was later convicted of bribery and sought mercy from the sentencing judge in the bribery case.  In 1997, Karlin resigned from the bench.  This trial basically finished her career.


United States v. Jackson


Here we have Easterbrook and Posner.  Posner has been seen as a candidate for the Supreme Court, but he’ll never make it because he’s unpredictable and has a certain libertarian slant.


Easterbrook was also at the U. of C. and was deeply into Law & Economics.  However, he was more predictably conservative.


Both guys are highly intellectual.  Not every judge is like that.  Both judges are utilitarians.


Look at Easterbrook as the life-in-prison guy and Posner as the relatively shorter sentence guy.  What are the arguments for each side?


Posner thinks there’s no chance under the current law to create general deterrence, therefore, he focuses on specific deterrence.  He says if you keep the guy in jail for 20 more years, he probably won’t commit any more crimes when released.


There is evidence that there is a link between age and crime, especially violent crime.


A utilitarian doesn’t like punishment.


Today, because of the increasingly high penalties we impose, especially three strikes laws, some prisons are becoming like hospices.  Is the cost worth it?


Back to Class Notes

[1] Probation is different from parole in that parole only happens when you’ve been in jail and get released.  Probation is what happens if you never go to prison in the first place.