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JessicaHallettFirstPaper 2 - 26 Feb 2010 - Main.JessicaHallett
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< | Initial thoughts | >
> | Fleshed-out Outline | | | | |
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< | Why we punish
Deterrence
Still, we punish in the face of data that tells us deterrence doesn’t work. We punish in circumstances where it isn’t logical that deterrence will result.
Just desert
And yet, we punish A, who has served time for X crime, more than we normally would for Y crime, because of his history- so we are either punishing him for who he is (punishing a person for being ‘bad’- and isn’t this transcending the law to a realm of morality) or we are punishing him above his just desert (either adding punishment on to X crime of the past, or enlarging punishment for Y crime more than Y crime actually merits).
Incapacitation
But many crimes are not extremely violent. Further, we re-release prisoners, at which point they are influenced by the system and perhaps more likely to be violent (true?) or at the least able to be free to commit crimes again. If we followed this to its fullest, we would lock people away for life and be 100% sure to prevent recidivism.
Rehab??
Involuntary rehab/institutionalization is prison by another name; how do we justify this?
Death Penalty
“The man you kill is not the same man who committed the crime.”
What happened to ‘cruel and unusual? What about rampant discrimination?
Perceptions
Would we actually punish A, if we know no one would see or know?
Hypocrisy
We punish even when we think we might have acted the same way given the circumstances. Hypocrisy? Or necessary to uphold law/standards/perceptions of a moral code of a justice via the law?
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title | >
> | Following All of the Rules | | | -- By JessicaHallett - 25 Feb 2010 | |
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< | Section I
Subsection A | >
> | A. Joseph Stack
In a letter written shortly before his death (a death begun not so shortly before it actually occurred), Joseph Stack wrote of the tax activities that led to run-ins with the IRS “We took a great deal of care to make it all visible, following all of the rules, exactly the way the law said it was to be done. “ Mr. Stack educated himself on the relevant law, and in reliance on it, took steps to avoid paying taxes. However, he soon found out that “there are two interpretations’ for every law; one for the very rich, and one for the rest of us.” According to his letter, Mr. Stack paid for this apparent transgression with tens of thousands of dollars and years of his life. A situation where a person who makes every effort to stay within the boundaries of the law, by learning it closely and following it precisely, yet it punished for breaking it, warrants a look at the way we are supposed to know and follow the law?? | | | | |
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> | Knowledge of the Law: Doctrinal Clash | | | | |
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> | Two Doctrines
It is first necessary to consider two doctrines to understand how a presumed knowledge of the law is both a fiction and an impractical, illogical requirement. The first is nulla poena sine lege, the principle that one cannot be punished for something that is not against the law. Secondly, the law generally does not provide an excuse for ignorance of the law: ignorantia legis neminem excusat. The very existence of a law is seen as “notice” that some activity is prohibited; as such, the law assumes that the law is known by all. Insofar as ignorance of the law could negate requisite mens rea for a given offense, it is permissible; however, that is merely restating the notion that there is no guilt without a culpable mental state. Ignorance of the law, by itself, is no excuse. | | | | |
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> | An Irreconcilable Tension
Mr. Stack’s case provides a compelling example of how the two doctrines can come sharply to a head: how can a person be expected to know the law to the letter, but then be punished for relying on the same? In his case, strict reliance on the law is nonetheless illegal (at least to one “interpretation”). This means that a person cannot rely on the body of the law to perform in accordance. In fact, the only way a truly-informed person can be expected to conform in the correct way must be in knowing that his actions were somehow wrong. There are instances when a person is found guilty of an expanded or new law when he should reasonably have expected that it would be expanded- thus, he has “notice” in that he should have known. Finally, there are times when a person can be convicted for purposefully getting around the law; again, this would inject a sense of morality (not the law) as a guide to how to behave. | | | | |
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> | Inconsistent Decisions
Some cases shed light on this tension between an obligation to know the law and reliance on the law. | | | | |
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> | Bryan v United States: defendant had to know that conduct was unlawful, but not necessarily the existence of the statute under which he was charged. Circs showed he knew it was unlawful (from his behavior like shaving off guns’ serial numbers)- he acted with an “evil-meaning mind”- is this morality?
United States v Overholt: Defednant had to know they he was doing something unlawful, but the judge didn’t say the jury had to find he knew the specific law he was violating
United States v Liparota: Said that the defendant had to know the existence and meaning of the law his act violated.
When the word “knowing” is in the statute, courts reach varied conclusions. Sometimes, courts find that a person must “knowingly” do an act, regardless of knowledge of the law. (US v Inernational Minerals and Chemical Corp.)
US v Ansaldi: Intent to violate the law is not an element; doesn’t matter if he knew that the drug was illegal. | | | | |
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> | The Legal Fiction of Knowledge of the Law: Conclusions | | | | |
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> | Purpose: in theory, it could be to make sure everyone actually knows the law. In reality, this is not the case, and true justification is in that the doctrine would prompt people to act according to their moral sense, in knowing that they could break the law. (So, do they have to trust that the law is moral?) | | | | |
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> | As a result, we do not know the law, or how it is applied. It is a legal fiction that we know the law, yet it is not a benign legal fiction. | | | | |
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< | Subsection B | >
> | What fills the gap when we aren't ACTUALLY supposed to know the law? A moral sense; some idea of universal ethics that we should "know" and therefore act accordingly when something doesn't "seem" right. ie when we know it reeks of something illegal, even if we don't know the law. Is it fair for the law to trust a sense of morality, and rely on that and convict on that basis? | | |
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JessicaHallettFirstPaper 1 - 25 Feb 2010 - Main.JessicaHallett
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Initial thoughts
Why we punish
Deterrence
Still, we punish in the face of data that tells us deterrence doesn’t work. We punish in circumstances where it isn’t logical that deterrence will result.
Just desert
And yet, we punish A, who has served time for X crime, more than we normally would for Y crime, because of his history- so we are either punishing him for who he is (punishing a person for being ‘bad’- and isn’t this transcending the law to a realm of morality) or we are punishing him above his just desert (either adding punishment on to X crime of the past, or enlarging punishment for Y crime more than Y crime actually merits).
Incapacitation
But many crimes are not extremely violent. Further, we re-release prisoners, at which point they are influenced by the system and perhaps more likely to be violent (true?) or at the least able to be free to commit crimes again. If we followed this to its fullest, we would lock people away for life and be 100% sure to prevent recidivism.
Rehab??
Involuntary rehab/institutionalization is prison by another name; how do we justify this?
Death Penalty
“The man you kill is not the same man who committed the crime.”
What happened to ‘cruel and unusual? What about rampant discrimination?
Perceptions
Would we actually punish A, if we know no one would see or know?
Hypocrisy
We punish even when we think we might have acted the same way given the circumstances. Hypocrisy? Or necessary to uphold law/standards/perceptions of a moral code of a justice via the law?
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title
-- By JessicaHallett - 25 Feb 2010
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
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