Criminal
Law Class Notes
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
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.
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
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?
[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.