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JustinColannino-SecondPaper 35 - 23 May 2008 - Main.JustinColannino
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here.
To see my responses to Eben's comments, including my goals in revision, click here. | | | Why has our punishment become harsh? The outrage dynamic and moral panic.
To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the 'evil' has not been eradicated by the legislation, leading to outrage which begins the process anew, leading to steeper penalties. | |
<
< | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. A modern example is the California three strikes law, which drastically increased penalties for recidivist criminals. The law was passed by popular vote after a child was kidnapped and murdered by a repeat offender [16], but efforts to lessen the harshness of the law for non-violent crimes were defeated using advertising that sparked outrage [17]. | >
> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. A modern example is the California three strikes law, which drastically increased penalties for recidivist criminals. The law was passed by popular vote after a child was kidnapped and murdered by a repeat offender [16], but efforts to lessen the harshness of the law for non-violent crimes were defeated using advertising that sparked outrage and panic [17]. | | | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties. | | | Why the 8th amendment does not protect us.
Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what the term 'proportional' means definition alludes us. | |
<
< | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's prohibition on cruel and unusual punishments the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7][15]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. | >
> | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's prohibition on cruel and unusual punishments the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7][15]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. | | | | |
<
< | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. | >
> | What this means is that in our current system legislatures may impose harsh jail time for any offense they deem to be serious under a deterrent justification, such as repeated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. | | | Why we should use weak retributivism as a constitutional cap on penalties. | |
<
< | One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that the pain inflicted by the government will be proportional to the offense committed will protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. However, the current reading of the 8th amendment does not provide the protection necessary to guard citizens against escalation in the harshness of criminal punishment. The constitutional guarantee we deserve should be in the form of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | >
> | One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that the pain inflicted by the government will be proportional to the offense committed will protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. However, the current reading of the 8th amendment does not provide the protection necessary to guard citizens against this type of escalation in punishment. The constitutional guarantee we deserve should be in the form of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | | | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, which would provide protection against moral panics [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would also force harsh sentencing schemes approved by the legislature to be held unconstitutional, breaking the cycle of punishment escalation. |
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JustinColannino-SecondPaper 34 - 22 May 2008 - Main.JustinColannino
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here.
To see my responses to Eben's comments, including my goals in revision, click here. | | | In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp climb in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second is a dramatic upturn in the length of sentences for inmates, which are now so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, a factor in the rise of the prison population is the escalation in the harshness of our criminal justice system.
Why has our punishment become harsh? The outrage dynamic and moral panic. | |
<
< | To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the 'evil' has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | >
> | To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the 'evil' has not been eradicated by the legislation, leading to outrage which begins the process anew, leading to steeper penalties. | | | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. A modern example is the California three strikes law, which drastically increased penalties for recidivist criminals. The law was passed by popular vote after a child was kidnapped and murdered by a repeat offender [16], but efforts to lessen the harshness of the law for non-violent crimes were defeated using advertising that sparked outrage [17].
These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties. | |
<
< | Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | >
> | Proportionality in sentencing, using weak retributivism as a constitutional cap on penalties. | | | Why the 8th amendment does not protect us.
Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what the term 'proportional' means definition alludes us. | | | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics.
Why we should use weak retributivism as a constitutional cap on penalties. | |
<
< | One of the purposes of our constitution is to protect the minority's rights against the will of the majority. The current reading of the 8th amendment does not provide the protection necessary to protect citizens against steep rises in the harshness of criminal punishment. Thus, we need a constitutional guarantee that punishment and pain inflicted by the government will be proportional to the offense committed to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. This guarantee should be in the form of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | >
> | One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that the pain inflicted by the government will be proportional to the offense committed will protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. However, the current reading of the 8th amendment does not provide the protection necessary to guard citizens against escalation in the harshness of criminal punishment. The constitutional guarantee we deserve should be in the form of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | | | | |
<
< | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, which would provide protection against moral panics [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense committed at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would also force harsh sentencing schemes approved by the legislature to be held unconstitutional, breaking the cycle of punishment escalation. | >
> | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, which would provide protection against moral panics [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would also force harsh sentencing schemes approved by the legislature to be held unconstitutional, breaking the cycle of punishment escalation. | | | References
[1] Folk Devils and Moral Panics, |
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JustinColannino-SecondPaper 33 - 21 May 2008 - Main.JustinColannino
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here.
To see my responses to Eben's comments, including my goals in revision, click here. | | | Why has our punishment become harsh? The outrage dynamic and moral panic.
To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the 'evil' has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | |
<
< | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. A modern example is the California three strikes law, which drastically increased penalties for recidivist criminals. The law was passed after a child was kidnapped murdered by a repeat offender [16], but efforts to lessen the harshness of the law for non-violent crimes were defeated using advertising that sparked outrage [17]. | >
> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. A modern example is the California three strikes law, which drastically increased penalties for recidivist criminals. The law was passed by popular vote after a child was kidnapped and murdered by a repeat offender [16], but efforts to lessen the harshness of the law for non-violent crimes were defeated using advertising that sparked outrage [17]. | | | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties. | | | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics.
Why we should use weak retributivism as a constitutional cap on penalties. | |
<
< | One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government will be proportional to the offense committed will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. The question then becomes how to define in jurisprudence when a punishment becomes disproportionate to the offense. | >
> | One of the purposes of our constitution is to protect the minority's rights against the will of the majority. The current reading of the 8th amendment does not provide the protection necessary to protect citizens against steep rises in the harshness of criminal punishment. Thus, we need a constitutional guarantee that punishment and pain inflicted by the government will be proportional to the offense committed to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. This guarantee should be in the form of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | | | | |
<
< | We advocate a definition of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribes to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13].
Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, which would provide protection against moral panics [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense committed at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would have the effect of harsh sentencing schemes proposed by the legislature held unconstitutional, breaking the cycle of punishment escalation. | >
> | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, which would provide protection against moral panics [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense committed at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would also force harsh sentencing schemes approved by the legislature to be held unconstitutional, breaking the cycle of punishment escalation. | | | References
[1] Folk Devils and Moral Panics, |
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JustinColannino-SecondPaper 32 - 18 May 2008 - Main.JustinColannino
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here.
To see my responses to Eben's comments, including my goals in revision, click here. | | | Why has our punishment become harsh? The outrage dynamic and moral panic.
To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the 'evil' has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | |
<
< | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. A modern example is the California three strikes law, which drastically increased penalties for recidivist criminals. The law was passed after a child was kidnapped murdered by a repeat offender [16], but efforts to lessen the harshness for non-violent crimes were defeated using advertising that sparked outrage[17]. | >
> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. A modern example is the California three strikes law, which drastically increased penalties for recidivist criminals. The law was passed after a child was kidnapped murdered by a repeat offender [16], but efforts to lessen the harshness of the law for non-violent crimes were defeated using advertising that sparked outrage [17]. | | | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties. | | | Why the 8th amendment does not protect us.
Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what the term 'proportional' means definition alludes us. | |
<
< | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's prohibition on cruel and unusual punishments the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7][15]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. There is also a branch of the court that interprets the prohibition of cruel and unusual punishment as providing no guarantee of proportionality between the crime and the punishment. | >
> | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's prohibition on cruel and unusual punishments the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7][15]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. | | | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. |
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JustinColannino-SecondPaper 31 - 18 May 2008 - Main.JustinColannino
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here.
To see my responses to Eben's comments, including my goals in revision, click here. | | | Why has our punishment become harsh? The outrage dynamic and moral panic.
To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the 'evil' has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | |
<
< | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. | >
> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. A modern example is the California three strikes law, which drastically increased penalties for recidivist criminals. The law was passed after a child was kidnapped murdered by a repeat offender [16], but efforts to lessen the harshness for non-violent crimes were defeated using advertising that sparked outrage[17]. | | | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties. | |
<
< | *How about looking to decriminalization and diminished penalties in Europe and Canada? Is it just the EU charter? You probably don't have the words to address it but maybe provide a link. | | | Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties.
Why the 8th amendment does not protect us.
Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what the term 'proportional' means definition alludes us. | |
<
< | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's prohibition on cruel and unusual punishments the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7][15]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. There is also a branch of the court that interprets the prohibition of cruel and unusual punishment as providing no guarantee of proportionality between the crime and the punishment. | >
> | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's prohibition on cruel and unusual punishments the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7][15]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. There is also a branch of the court that interprets the prohibition of cruel and unusual punishment as providing no guarantee of proportionality between the crime and the punishment. | | | | |
<
< | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeatated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. | >
> | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. | | | | |
<
< | Using weak retributivism as a constitutional cap on penalties.
One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government must not violate retributist principals will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. The question then becomes how to define in jurisprudence when a punishment becomes disproportionate to the offense. | >
> | Why we should use weak retributivism as a constitutional cap on penalties.
One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government will be proportional to the offense committed will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. The question then becomes how to define in jurisprudence when a punishment becomes disproportionate to the offense. | | | We advocate a definition of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribes to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | |
<
< | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense committed at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would have the effect of harsh sentencing schemes proposed by the legislature held unconstitutional, breaking the cycle of punishment escalation.
*But with legislatures ratcheting up punishments as high as possible and the judiciary striking them down as unconstitutional, wouldn't the judiciary complete usurp the legislature's role in criminal law? However, the legislature will still be able to define what is or isn't a crime.
*Your paper seems pretty well thought out and put together. I'm kind of left with feeling like this as an argument using the power of fiat. Perhaps this is the best or most reasonable solution in a perfect world, but I'm left feeling there's no way this could actually happen. I may be wrong considering the power of the drug sentencing guidelines. I'm not positive cause your paper doesn't address it but that might not be your paper's purpose. | >
> | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, which would provide protection against moral panics [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense committed at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would have the effect of harsh sentencing schemes proposed by the legislature held unconstitutional, breaking the cycle of punishment escalation. | | | References
[1] Folk Devils and Moral Panics, | | | [15] Ewing v. California 538 US 11, 2003. | |
>
> | [16] California Rethinking '3-Strikes' Sentencing,
Dean E. Murphy,
New York Times, 24 Oct 2004.
[17] AD WATCH: Proposition 66,
San Francisco Chronicle,
27 Oct, 2004. | | | |
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JustinColannino-SecondPaper 30 - 18 May 2008 - Main.JustinColannino
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here.
To see my responses to Eben's comments, including my goals in revision, click here. | | | *How about looking to decriminalization and diminished penalties in Europe and Canada? Is it just the EU charter? You probably don't have the words to address it but maybe provide a link.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | |
<
< | The current status of proportionality in United States law.
Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. | >
> | Why the 8th amendment does not protect us.
Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what the term 'proportional' means definition alludes us. | | | | |
<
< | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's guarantee of proportionality the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. | >
> | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's prohibition on cruel and unusual punishments the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7][15]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. There is also a branch of the court that interprets the prohibition of cruel and unusual punishment as providing no guarantee of proportionality between the crime and the punishment. | | | | |
<
< | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeatated nonviolent thefts. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. | >
> | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeatated nonviolent thefts [15]. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. | | | Using weak retributivism as a constitutional cap on penalties.
One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government must not violate retributist principals will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. The question then becomes how to define in jurisprudence when a punishment becomes disproportionate to the offense. | | | [14] An Overview of the United States Sentincing Commision
December, 2007. | |
>
> | [15] Ewing v. California 538 US 11, 2003. | | |
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JustinColannino-SecondPaper 29 - 18 May 2008 - Main.JulianBaez
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here.
To see my responses to Eben's comments, including my goals in revision, click here. | | | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties. | |
>
> | *How about looking to decriminalization and diminished penalties in Europe and Canada? Is it just the EU charter? You probably don't have the words to address it but maybe provide a link. | | | Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties.
The current status of proportionality in United States law.
Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. | | | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense committed at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would have the effect of harsh sentencing schemes proposed by the legislature held unconstitutional, breaking the cycle of punishment escalation. | |
>
> | *But with legislatures ratcheting up punishments as high as possible and the judiciary striking them down as unconstitutional, wouldn't the judiciary complete usurp the legislature's role in criminal law? However, the legislature will still be able to define what is or isn't a crime.
*Your paper seems pretty well thought out and put together. I'm kind of left with feeling like this as an argument using the power of fiat. Perhaps this is the best or most reasonable solution in a perfect world, but I'm left feeling there's no way this could actually happen. I may be wrong considering the power of the drug sentencing guidelines. I'm not positive cause your paper doesn't address it but that might not be your paper's purpose. | | | References
[1] Folk Devils and Moral Panics,
Stanley Cohen, |
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JustinColannino-SecondPaper 28 - 15 May 2008 - Main.JustinColannino
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| META TOPICPARENT | name="WebPreferences" |
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here.
To see my responses to Eben's comments, including my goals in revision, click here. | | | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | |
<
< | One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | >
> | The current status of proportionality in United States law. | | | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. | |
<
< | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior,
rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed,
- Since when is punishment a good way of teaching anybody anything?
or retributivism principals by punishing until society believes that the scales of justice are even for the offense [2].
In current jurisprudence on the 8th Amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment [7]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7].
We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribes to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13].
- But we are not there, we are here. In our case, proportionality as a concept must be read out of language used in 1689 in the Bill of Rights, and copied into American constitutions, including the Federal Bill of Rights, that "cruel and unusual punishments shall not be inflicted," which grounds two other meanings of proportionality: that punishment shall not reach an absolute limit of inhumanity that constitutes cruelty, and that it must not be meted out inequitably, so that some people are punished unusually.
-
- Another possible reading of "unusual," that I have some affinity for, is that it means "uncommon" or "not regularly meted out." While losing some of the individual protection that the "inequity" interpretation provides, it would serve as an absolute bar to some of the punishments that our system only rarely uses (the death penalty being a prime example). -- AdamCarlis 8 May 2008
| >
> | Part of the problem is answering the question of what ends the proportionality serves. According to the United States Sentencing Commission the purposes of punishment are "just punishment [retributivism], deterrence, incapacitation, and rehabilitation" [14]. In current jurisprudence on non capital cases concerning the 8th Amendment's guarantee of proportionality the supreme court has understood proportionality to be satisfied so long as one of the ends of punishment are addressed [7]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. | | | | |
<
< | Consequences of a constitutional protection against disproportionate sentences. | >
> | What this means is that under our current system legislatures may impose harsh jail time for any offense they deem to be serious, such as repeatated nonviolent thefts. This concept of proportionality does not protect the minority against penalty escalation, and leaves the decision of how much punishment is too much up to a majority easily influenced by outrage and moral panics. | | | | |
<
< | Increased scrutiny for length of prison sentences
If there was a protection against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentence proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would have the effect of harsh sentencing schemes proposed by the legislature held unconstitutional. | >
> | Using weak retributivism as a constitutional cap on penalties.
One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government must not violate retributist principals will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. The question then becomes how to define in jurisprudence when a punishment becomes disproportionate to the offense. | | | | |
<
< |
- But we have been using such a scheme, consisting a sentencing guidelines with a requirement to justify departures below and above, and that scheme--whatever its constitutionality--did not reduce the savagery of US sentences. Hadn't you better explain why it didn't work before asserting that it would?
| >
> | We advocate a definition of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribes to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | | | | |
<
< |
- I think my lack of clarity about what type of proportionality I was arguing for in the heading is the reason for this comment. The sentencing commission attempts to incorporate "just punishment, deterrence, incapacitation, and rehabilitation" into the guidelines. With an guarantee of 'weak' retributivism the guidelines themselves would have to be restructured and there would begin to be jurisprudence drawing hard lines (for example, 'no more than 3 years for theft of less than 100,000k') that the legislature could not exceed.
A Check against moral panics
Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments.
- But we have one, and it does not. So perhaps we'd better ask why not?
A new jurisdictional hook for prison reform
The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged. Then, courts would be able to impose the choice: clean up jails or have no jail time for some classes of offense.
- I don't understand this assertion. If the legislature elected by the public thinks that some crime deserves a punishment of imprisonment, what is the basis for holding that it does not, or that jail conditions are relevant to why it does not? Apparently you have an argument in mind, but I cannot find out what it is from the text.
- The idea here was that courts could distinguish between the degree of punishment for detention and the degree of punishment for detention in terrible conditions. Thus, for some classes of crime it would be possible that detention would be acceptable, but detention in jails as they are would be unacceptable. Regardless, the idea is not very important to this paper, has some holes, and will likely be cut when I figure out how to reformat my middle section.
| >
> | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A protection against sentences violating retributist principals would force the judge to answer the question of whether the sentence imposed by the legislature was proportional to the offense committed at every sentencing, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would have the effect of harsh sentencing schemes proposed by the legislature held unconstitutional, breaking the cycle of punishment escalation. | | | References
[1] Folk Devils and Moral Panics, | | | [13] Charter of Fundemental Rights of the European Union | |
<
< |
- This is an interesting and potentially excellent essay, but I don't understand why it proceeds as though a constitutional requirement of proportionality would be something new in the US. I think your real subject is why our existing proportionality review doesn't work as you would have us believe it must.
- I've been looking to spot the place where my argument becomes unclear. I think it is in my section on proportionality where my main thesis gets swallowed by definitions and trying to address the swirling waters of 8th amendment jurisprudence. The section attempts to convey three related points.
- The unclear definition of proportionality (beyond our intuitions) makes it a difficult legal term to apply.
- The supreme court interprets proportionality of punishment statutes (excepting life sentinces and death) as 'can this punishment conceivably be related to a goal of punishment'.
- We need a constitutional guarantee for what is known as 'weak' retributivism to protect us from how criminal laws are made.
- I think I further confused the final point with my heading title in the next section. I should have made explicit what type of proportionality I was arguing for - that was a blunder.
| >
> | [14] An Overview of the United States Sentincing Commision
December, 2007. | | | | |
<
< |
- I think the way forward is to revamp the section on proportionality, trying to make my intention clearer and focus on why the 8th amendment as interpreted by the court does not offer the protection that we deserve. Further comments on something I may have missed, or other methods towards improvement are very welcome.
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JustinColannino-SecondPaper 26 - 15 May 2008 - Main.JustinColannino
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here. | | |
- But we have been using such a scheme, consisting a sentencing guidelines with a requirement to justify departures below and above, and that scheme--whatever its constitutionality--did not reduce the savagery of US sentences. Hadn't you better explain why it didn't work before asserting that it would?
| |
<
< | | >
> |
- I think my lack of clarity about what type of proportionality I was arguing for in the heading is the reason for this comment. The sentencing commission attempts to incorporate "just punishment, deterrence, incapacitation, and rehabilitation" into the guidelines. With an guarantee of 'weak' retributivism the guidelines themselves would have to be restructured and there would begin to be jurisprudence drawing hard lines (for example, 'no more than 3 years for theft of less than 100,000k') that the legislature could not exceed.
| | | A Check against moral panics
Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. | | |
- This is an interesting and potentially excellent essay, but I don't understand why it proceeds as though a constitutional requirement of proportionality would be something new in the US. I think your real subject is why our existing proportionality review doesn't work as you would have us believe it must.
| |
>
> |
- I've been looking to spot the place where my argument becomes unclear. I think it is in my section on proportionality where my main thesis gets swallowed by definitions and trying to address the swirling waters of 8th amendment jurisprudence. The section attempts to convey three related points.
- The unclear definition of proportionality (beyond our intuitions) makes it a difficult legal term to apply.
- The supreme court interprets proportionality of punishment statutes (excepting life sentinces and death) as 'can this punishment conceivably be related to a goal of punishment'.
- We need a constitutional guarantee for what is known as 'weak' retributivism to protect us from how criminal laws are made.
- I think I further confused the final point with my heading title in the next section. I should have made explicit what type of proportionality I was arguing for - that was a blunder.
| | | | |
>
> |
- I think the way forward is to revamp the section on proportionality, trying to make my intention clearer and focus on why the 8th amendment as interpreted by the court does not offer the protection that we deserve. Further comments on something I may have missed, or other methods towards improvement are very welcome.
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JustinColannino-SecondPaper 25 - 11 May 2008 - Main.JustinColannino
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UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here. | | |
- I don't understand this assertion. If the legislature elected by the public thinks that some crime deserves a punishment of imprisonment, what is the basis for holding that it does not, or that jail conditions are relevant to why it does not? Apparently you have an argument in mind, but I cannot find out what it is from the text.
| |
>
> |
- The idea here was that courts could distinguish between the degree of punishment for detention and the degree of punishment for detention in terrible conditions. Thus, for some classes of crime it would be possible that detention would be acceptable, but detention in jails as they are would be unacceptable. Regardless, the idea is not very important to this paper, has some holes, and will likely be cut when I figure out how to reformat my middle section.
| | | References
[1] Folk Devils and Moral Panics,
Stanley Cohen, |
|
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JustinColannino-SecondPaper 24 - 09 May 2008 - Main.JustinColannino
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<
< | This paper is ready to be read. | >
> | UNDER REVISION. To see the paper as submitted, including all of Eben's comments, click here. | | | Just Desert: Why We Deserve a Right Against Disproportionate Punishment
| | | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | |
<
< | One of the purposes of our constitution is to protect the minorities
rights against the will of the majority.
- You meant "minority's." Even "minorities'" would have been wrong with a definite article before it. Proofreading missed.
Thus, a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | >
> | One of the purposes of our constitution is to protect the minority's rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | | | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. |
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JustinColannino-SecondPaper 23 - 09 May 2008 - Main.AdamCarlis
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This paper is ready to be read. | | |
- But we are not there, we are here. In our case, proportionality as a concept must be read out of language used in 1689 in the Bill of Rights, and copied into American constitutions, including the Federal Bill of Rights, that "cruel and unusual punishments shall not be inflicted," which grounds two other meanings of proportionality: that punishment shall not reach an absolute limit of inhumanity that constitutes cruelty, and that it must not be meted out inequitably, so that some people are punished unusually.
| |
<
< | | >
> |
-
- Another possible reading of "unusual," that I have some affinity for, is that it means "uncommon" or "not regularly meted out." While losing some of the individual protection that the "inequity" interpretation provides, it would serve as an absolute bar to some of the punishments that our system only rarely uses (the death penalty being a prime example). -- AdamCarlis 8 May 2008
| | | Consequences of a constitutional protection against disproportionate sentences. |
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JustinColannino-SecondPaper 22 - 08 May 2008 - Main.EbenMoglen
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| META TOPICPARENT | name="WebPreferences" |
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This paper is ready to be read. | | | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | |
<
< | One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | >
> | One of the purposes of our constitution is to protect the minorities
rights against the will of the majority.
- You meant "minority's." Even "minorities'" would have been wrong with a definite article before it. Proofreading missed.
Thus, a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | | | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. | |
<
< | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by punishing until society believes that the scales of justice are even for the offense [2]. | >
> | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior,
rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed,
- Since when is punishment a good way of teaching anybody anything?
or retributivism principals by punishing until society believes that the scales of justice are even for the offense [2]. | | | In current jurisprudence on the 8th Amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment [7]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7].
We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribes to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | |
>
> |
- But we are not there, we are here. In our case, proportionality as a concept must be read out of language used in 1689 in the Bill of Rights, and copied into American constitutions, including the Federal Bill of Rights, that "cruel and unusual punishments shall not be inflicted," which grounds two other meanings of proportionality: that punishment shall not reach an absolute limit of inhumanity that constitutes cruelty, and that it must not be meted out inequitably, so that some people are punished unusually.
| | | Consequences of a constitutional protection against disproportionate sentences.
Increased scrutiny for length of prison sentences
If there was a protection against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentence proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would have the effect of harsh sentencing schemes proposed by the legislature held unconstitutional. | |
>
> |
- But we have been using such a scheme, consisting a sentencing guidelines with a requirement to justify departures below and above, and that scheme--whatever its constitutionality--did not reduce the savagery of US sentences. Hadn't you better explain why it didn't work before asserting that it would?
| | | A Check against moral panics
Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. | |
>
> |
- But we have one, and it does not. So perhaps we'd better ask why not?
| | | A new jurisdictional hook for prison reform
The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged. Then, courts would be able to impose the choice: clean up jails or have no jail time for some classes of offense. | |
>
> |
- I don't understand this assertion. If the legislature elected by the public thinks that some crime deserves a punishment of imprisonment, what is the basis for holding that it does not, or that jail conditions are relevant to why it does not? Apparently you have an argument in mind, but I cannot find out what it is from the text.
| | | References
[1] Folk Devils and Moral Panics,
Stanley Cohen, | | | [13] Charter of Fundemental Rights of the European Union | |
>
> |
- This is an interesting and potentially excellent essay, but I don't understand why it proceeds as though a constitutional requirement of proportionality would be something new in the US. I think your real subject is why our existing proportionality review doesn't work as you would have us believe it must.
| | |
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JustinColannino-SecondPaper 21 - 22 Apr 2008 - Main.JustinColannino
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This paper is ready to be read. | | | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments.
A new jurisdictional hook for prison reform | |
<
< | The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged. Then, courts able to impose the choice: clean up jails or have no jail time for some classes of offense. | >
> | The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged. Then, courts would be able to impose the choice: clean up jails or have no jail time for some classes of offense. | | | References
[1] Folk Devils and Moral Panics, |
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JustinColannino-SecondPaper 20 - 15 Apr 2008 - Main.JustinColannino
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| META TOPICPARENT | name="WebPreferences" |
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This paper is ready to be read. | | | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | |
<
< | One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | >
> | One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | | | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jaywalking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. |
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JustinColannino-SecondPaper 19 - 06 Apr 2008 - Main.JustinColannino
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<
< | THIS PAPER IS NOT READY TO BE GRADED. | >
> | This paper is ready to be read. | | | Just Desert: Why We Deserve a Right Against Disproportionate Punishment
Introduction: Harsh punishment in the United States | |
<
< | Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper will explore some factors in why this has come to pass, and proposes a measure we can take to spark reform in our system of punishment. | >
> | Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper explores some factors in why this has come to pass, and proposes a measure we can take to spark reform in our system of punishment. | | | Two factors in the increase of the prison population. | |
<
< | In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp increase in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, a factor in the rise of the prison poplulation is the escalation in the harshness of our criminal justice system. | >
> | In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp climb in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second is a dramatic upturn in the length of sentences for inmates, which are now so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, a factor in the rise of the prison population is the escalation in the harshness of our criminal justice system. | | | Why has our punishment become harsh? The outrage dynamic and moral panic. | |
<
< | To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the evil has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | >
> | To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the 'evil' has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | | | | |
<
< | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. In the latter case it is not the criminalization of behavior that occured but an increase of punishments corresponding to the behavior. | >
> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with media reports, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior or heightened punishment for the behavior, including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. | | | | |
<
< | These models illustrate a problem with how criminal laws are made. There are common events that easily shift the harshness of penalties upwards, but there is little force mobilizing the population to diminish penalties. | >
> | These models illustrate a problem with how criminal laws are made. Social events easily shift the harshness of penalties upwards, but there is little at work to mobilize the population to diminish penalties. | | | Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties.
One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | | | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by punishing until society believes that the scales of justice are even for the offense [2]. | |
<
< | In current jurisprudence on the 8th Amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment [7]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals [3] [7]. | >
> | In current jurisprudence on the 8th Amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment [7]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent justification [3] [7]. | | | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribes to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | | | Consequences of a constitutional protection against disproportionate sentences.
Increased scrutiny for length of prison sentences | |
<
< | If there was a protection against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentence proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would likely have the effect of some harsh sentencing schemes proposed by the legislature to be held unconstitutional. | >
> | If there was a protection against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentence proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would have the effect of harsh sentencing schemes proposed by the legislature held unconstitutional. | | | A Check against moral panics | |
<
< | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from their negative effects. | >
> | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. | | | A new jurisdictional hook for prison reform | |
<
< | The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts able to impose the choice: clean up jails or have no jail time for some classes of offense. | >
> | The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged. Then, courts able to impose the choice: clean up jails or have no jail time for some classes of offense. | | | References
[1] Folk Devils and Moral Panics, |
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JustinColannino-SecondPaper 18 - 06 Apr 2008 - Main.JustinColannino
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| META TOPICPARENT | name="WebPreferences" |
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THIS PAPER IS NOT READY TO BE GRADED. | | | Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper will explore some factors in why this has come to pass, and proposes a measure we can take to spark reform in our system of punishment.
Two factors in the increase of the prison population. | |
<
< | In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp increase in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, a factor in the rise of the prison poplulation is the escalation in the harshness of our criminal justice system. | >
> | In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp increase in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, a factor in the rise of the prison poplulation is the escalation in the harshness of our criminal justice system. | | | Why has our punishment become harsh? The outrage dynamic and moral panic. | |
<
< | To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the evil has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | >
> | To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the evil has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | | | | |
<
< | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. In the latter case it is not the criminalization of behavior that occured but the increase of punishments corresponding to the behavior. | >
> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. In the latter case it is not the criminalization of behavior that occured but an increase of punishments corresponding to the behavior. | | | These models illustrate a problem with how criminal laws are made. There are common events that easily shift the harshness of penalties upwards, but there is little force mobilizing the population to diminish penalties.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties.
One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | |
<
< | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. | >
> | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. | | | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by punishing until society believes that the scales of justice are even for the offense [2]. |
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JustinColannino-SecondPaper 17 - 06 Apr 2008 - Main.JustinColannino
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| META TOPICPARENT | name="WebPreferences" |
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THIS PAPER IS NOT READY TO BE GRADED.
Just Desert: Why We Deserve a Right Against Disproportionate Punishment
| |
<
< | Introduction: Harsh penalties in the United States
Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper will explore some factors in why this has come to pass, and proposes a measure we can take to help reform our system of punishment. | >
> | Introduction: Harsh punishment in the United States
Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper will explore some factors in why this has come to pass, and proposes a measure we can take to spark reform in our system of punishment. | | | | |
<
< | Two factors in the increase of the prison population.
In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp increase in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population. | >
> | Two factors in the increase of the prison population.
In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp increase in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, a factor in the rise of the prison poplulation is the escalation in the harshness of our criminal justice system. | | | Why has our punishment become harsh? The outrage dynamic and moral panic.
To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the evil has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | | | These models illustrate a problem with how criminal laws are made. There are common events that easily shift the harshness of penalties upwards, but there is little force mobilizing the population to diminish penalties.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | |
<
< | One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by the sentencing system, but not easily ratcheted down. | >
> | One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. | | | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. | |
<
< | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by satisfying societies belief that the scales of justice are even for the offense [2]. | >
> | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by punishing until society believes that the scales of justice are even for the offense [2]. | | | In current jurisprudence on the 8th Amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment [7]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals [3] [7]. | |
<
< | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribe to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | >
> | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribes to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | | |
Consequences of a constitutional protection against disproportionate sentences.
Increased scrutiny for length of prison sentences | |
<
< | If there was a protection against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentence proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where guidelines would be addressed and followed and would likely have the effect of some sentencing schemes proposed by the legislature to be held unconstitutional. | >
> | If there was a protection against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentence proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where protective guidelines would be addressed and followed. This would likely have the effect of some harsh sentencing schemes proposed by the legislature to be held unconstitutional. | | | A Check against moral panics | |
<
< | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from the negative effects. | >
> | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from their negative effects. | | | A new jurisdictional hook for prison reform
The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts able to impose the choice: clean up jails or have no jail time for some classes of offense. |
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JustinColannino-SecondPaper 16 - 06 Apr 2008 - Main.JustinColannino
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| META TOPICPARENT | name="WebPreferences" |
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THIS PAPER IS NOT READY TO BE GRADED. | |
<
< | Proportional punishment. | >
> | Just Desert: Why We Deserve a Right Against Disproportionate Punishment
| | | Introduction: Harsh penalties in the United States
Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper will explore some factors in why this has come to pass, and proposes a measure we can take to help reform our system of punishment.
Two factors in the increase of the prison population. | |
<
< | In his book Harsh Punishment [11], James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population. | >
> | In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp increase in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population. | | | Why has our punishment become harsh? The outrage dynamic and moral panic.
To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the evil has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties.
This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. In the latter case it is not the criminalization of behavior that occured but the increase of punishments corresponding to the behavior. | |
>
> | These models illustrate a problem with how criminal laws are made. There are common events that easily shift the harshness of penalties upwards, but there is little force mobilizing the population to diminish penalties. | | | Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | |
<
< | One of the purposes of a constitutions in democratic society is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect us from punishments easily ratcheted up by the sentencing system, but not easily ratcheted down. | >
> | One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by the sentencing system, but not easily ratcheted down.
Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us.
Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by satisfying societies belief that the scales of justice are even for the offense [2]. | | | | |
<
< | Proportionality is at once a difficult and easy concept to define. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by satisfying societies belief that the scales of justice are even for the offense [7]. | >
> | In current jurisprudence on the 8th Amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment [7]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals [3] [7]. | | | | |
<
< | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | >
> | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe, where every system subscribe to some version of the principle [11]. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | | | | |
<
< | However, other concepts of proportionality exist. In current jurisprudence on the 8th amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment [2]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals. Beyond a suggestion of “weak“ retributivism, Richard Fraise [3] and Youngjae Lee [7] have both suggested disjunctive theories of proportionality where the punishment should be capped at whatever goal is satisfied by the least harsh punishment. | | | Consequences of a constitutional protection against disproportionate sentences.
Increased scrutiny for length of prison sentences | |
<
< | If there was an right against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentience proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where guidelines would be addressed and followed and would likely have the effect of some sentencing schemes proposed by the legislature to be held unconstitutional. | >
> | If there was a protection against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentence proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where guidelines would be addressed and followed and would likely have the effect of some sentencing schemes proposed by the legislature to be held unconstitutional. | | | A Check against moral panics
Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from the negative effects.
A new jurisdictional hook for prison reform | |
<
< | The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts imposing the choice: clean up jails or have no jail time for some classes of offense. | >
> | The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts able to impose the choice: clean up jails or have no jail time for some classes of offense. | | | References
[1] Folk Devils and Moral Panics, |
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JustinColannino-SecondPaper 15 - 05 Apr 2008 - Main.JustinColannino
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THIS PAPER IS NOT READY TO BE GRADED.
Proportional punishment.
Introduction: Harsh penalties in the United States | |
<
< | Since the 1970's America's incarceration rate has quadrupled [CITE Whitman] and has recently surpassed 1% of the total population [CITE NEW YORK TIMES]. This paper will explore some factors in why this has come to pass, and propose a measure we can take to help reform our system of punishment. | >
> | Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper will explore some factors in why this has come to pass, and proposes a measure we can take to help reform our system of punishment. | | | Two factors in the increase of the prison population. | |
<
< | In his book Harsh Punishment, James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population. | >
> | In his book Harsh Punishment [11], James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population. | | | Why has our punishment become harsh? The outrage dynamic and moral panic. | |
<
< | To answer this question we look at the dynamics of making criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh and applied to the creation of criminal laws by Philip Pettit [cite] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [cite MacDonagh]. The fourth stage is a report that the evil has not been eradicated, outrage again by the population which begins the process anew, leading to steeper penalties. | >
> | To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the evil has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. | | | | |
<
< | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen, are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [CITE]. In the latter case it is not the criminalization of behavior that occurs but the increase of punishments corresponding to that behavior. | >
> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. In the latter case it is not the criminalization of behavior that occured but the increase of punishments corresponding to the behavior. | | | Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties.
One of the purposes of a constitutions in democratic society is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect us from punishments easily ratcheted up by the sentencing system, but not easily ratcheted down. | |
<
< | Proportionality is at once a difficult and easy concept to define. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by satisfying societies belief that the scales of justice are even for the offense. [cite the case book]. | >
> | Proportionality is at once a difficult and easy concept to define. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by satisfying societies belief that the scales of justice are even for the offense [7]. | | | | |
<
< | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [link to PDF]. | >
> | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [13]. | | | | |
<
< | However, other concepts of proportionality exist. In current jurisprudence on the 8th amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment (cite fraise). Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals. Beyond a suggestion of “weak“ retributivism, Ricahrd Fraise and Youngjae Lee have independently suggested a disjunctive theory of proportionality where the punishment should be capped at whatever goal is satisfied by the least harsh punishment. | >
> | However, other concepts of proportionality exist. In current jurisprudence on the 8th amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment [2]. Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals. Beyond a suggestion of “weak“ retributivism, Richard Fraise [3] and Youngjae Lee [7] have both suggested disjunctive theories of proportionality where the punishment should be capped at whatever goal is satisfied by the least harsh punishment. | | | Consequences of a constitutional protection against disproportionate sentences. | |
>
> | | | | Increased scrutiny for length of prison sentences
If there was an right against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentience proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where guidelines would be addressed and followed and would likely have the effect of some sentencing schemes proposed by the legislature to be held unconstitutional. | | | If there was an right against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentience proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where guidelines would be addressed and followed and would likely have the effect of some sentencing schemes proposed by the legislature to be held unconstitutional.
A Check against moral panics | |
<
< | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [CITE]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from the negative effects. | >
> | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [10]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from the negative effects. | | | A new jurisdictional hook for prison reform | |
<
< | The terrible conditions in prison have been well documented [CITE Nielson]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts imposing the choice: clean up jails or have no jail time for some classes of offense. | >
> | The terrible conditions in prison have been well documented [9]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts imposing the choice: clean up jails or have no jail time for some classes of offense. | | | References | |
<
< | [] Excessive Prison Sentences, Punishment Goals,and the Eighth Amendment: “Proportionality”Relative to What?, | >
> | [1] Folk Devils and Moral Panics,
Stanley Cohen,
MacGibbon & Kee, 1972.
[2] Excessive Prison Sentences, Punishment Goals,and the Eighth Amendment: “Proportionality”Relative to What?, | | | Richard S. Frase,
89 Minnasota Law Review 571, 2005. | |
<
< | [] Limiting Retributivism: The Consensus Model of Criminal Punishment, | >
> | [3] Limiting Retributivism: The Consensus Model of Criminal Punishment, | | | Richard S. Frase,
in The Future of Imprisonment in the 21st Century, Michael Tonry, ed., Oxford University Press, December 2003. | |
<
< | [] Proportionality Principles in the American System of Criminal Justice, | >
> | [4] Proportionality Principles in the American System of Criminal Justice, | | | Richard S. Frase,
Perspectives, The Magazine of the University of Minnesota Law School, Fall 2005. | |
<
< | [] Moral Panics: The Social Construction of Deviance, | >
> | [5] Moral Panics: The Social Construction of Deviance, | | | Erich Goode & Nachman Ben-Yehuda,
Blackwell Publishing, 1994. | |
<
< | [] Proportionate Sentincing, | >
> | [6] Proportionate Sentincing, | | | Andrew von Hirsch and Andrew Ashworth,
Oxford University Press, 2005. | |
<
< | [] The Constitutional Right Against Excessive Punishment, | >
> | [7] The Constitutional Right Against Excessive Punishment, | | | Youngjae Lee,
91 Virginia Law Review 677, 2005. | |
<
< | [] Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse, | >
> | [8] The 19th century revolution in Government: A Reappraisal,
Olivier MacDonagh,
1 Historical Journal 52, (1958).
[9] Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse, | | | Eva S. Nilsen,
41 UC-Davis Law Review 111, 2007. | |
<
< | [] Is Criminal Justice Politically Feasible, | >
> | [10] Is Criminal Justice Politically Feasible, | | | Philip Pettit,
5 Buffalo Criminal Law Review 427, 2002. | |
<
< | [] Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe, | >
> | [11] Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe, | | | James Q. Whitman,
Oxford University Press, 2005. | |
<
< | [] 1 in 100 U.S. Adults Behind Bars, New Study Says | >
> | [12] 1 in 100 U.S. Adults Behind Bars, New Study Says, | | | Adam Liptak,
New York Times, 28 Feb 2008. | |
>
> | [13] Charter of Fundemental Rights of the European Union | | | |
|
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JustinColannino-SecondPaper 14 - 05 Apr 2008 - Main.JustinColannino
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THIS PAPER IS NOT READY TO BE GRADED. | |
<
< | Proportionality in criminal penalties. | >
> | Proportional punishment. | | | Introduction: Harsh penalties in the United States | |
<
< | The United States has a problem with incarceration. Since the 1970's America's incarceration rate has quadrupled CITE and has recently surpassed 1% of the total population CITE NEW YORK TIMES. This paper will explore some reasons why this has come to pass, and propose a measure we can take towards punishment to help reform our system of punishment. | >
> | Since the 1970's America's incarceration rate has quadrupled [CITE Whitman] and has recently surpassed 1% of the total population [CITE NEW YORK TIMES]. This paper will explore some factors in why this has come to pass, and propose a measure we can take to help reform our system of punishment. | | | | |
<
< | Why the high incarceration rate? | >
> | Two factors in the increase of the prison population. | | | In his book Harsh Punishment, James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population.
Why has our punishment become harsh? The outrage dynamic and moral panic. | |
<
< | To answer this question we look at the dynamics of making criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonough and applied to the creation of criminal laws by Philip Pettit [cite] identifies a cycle by which behavior becomes criminal. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [cite MacDonough]. The fourth stage is a report that the evil has not been eradicated, outrage again by the population which begins the process anew, leading to steeper penalties. | >
> | To answer this question we look at the dynamics of making criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh and applied to the creation of criminal laws by Philip Pettit [cite] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [cite MacDonagh]. The fourth stage is a report that the evil has not been eradicated, outrage again by the population which begins the process anew, leading to steeper penalties. | | | | |
<
< | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen, are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and evil playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [CITE]. In the latter case it is not the criminalization of behavior that occurs but the increase of punishments corresponding to that behavior. | >
> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen, are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [CITE]. In the latter case it is not the criminalization of behavior that occurs but the increase of punishments corresponding to that behavior. | | | | |
<
< | Proportionality in sentencing, using weak or limited retributivism as a cap on penalties. | >
> | Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties. | | | One of the purposes of a constitutions in democratic society is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect us from punishments easily ratcheted up by the sentencing system, but not easily ratcheted down. | |
<
< | Proportionality is at once a difficult and easy concept to define. Most, if not all, would agree that a two-hundred dollar fine for rape is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. Part of the problem is answering the question of to what ends does the proportionality serve. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by satisfying societies belief that the scales of justice are even for the offense. [cite the case book]. | >
> | Proportionality is at once a difficult and easy concept to define. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by satisfying societies belief that the scales of justice are even for the offense. [cite the case book]. | | | | |
<
< | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. However, other definitions exist. In current jurisprudence on the 8th amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment (cite fraise). Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals. Beyond a suggestion of “weak“ retributivism, Ricahrd Fraise and Youngjae Lee have independently suggested a disjunctive theory of proportionality where the punishment should be capped at whatever goal is satisfied by the least harsh punishment. Note that this paper does not attempt to answer the important question of whether this end can be achieved better through Supreme Court interpretation of the 8th amendment or a new constitutional amendment. | >
> | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. This is the interpretation adopted in Europe. The European Union's Charter of Fundamental Rights provides that “the severity of penalties must not be disproportionate to the criminal offense“ [link to PDF]. | | | | |
<
< | SAY SOMTHING ABOUT REDUCING PRISON SENTINCES:!!!!! | >
> | However, other concepts of proportionality exist. In current jurisprudence on the 8th amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment (cite fraise). Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals. Beyond a suggestion of “weak“ retributivism, Ricahrd Fraise and Youngjae Lee have independently suggested a disjunctive theory of proportionality where the punishment should be capped at whatever goal is satisfied by the least harsh punishment. | | | Consequences of a constitutional protection against disproportionate sentences.
Increased scrutiny for length of prison sentences | | | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [CITE]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from the negative effects.
A new jurisdictional hook for prison reform | |
<
< | The terrible conditions in prison have been well documented [CITE Nielson]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts forcing with the choice: clean up jails or have no jail time for some classes of offense. | >
> | The terrible conditions in prison have been well documented [CITE Nielson]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts imposing the choice: clean up jails or have no jail time for some classes of offense. | | | References
[] Excessive Prison Sentences, Punishment Goals,and the Eighth Amendment: “Proportionality”Relative to What?, | | | James Q. Whitman,
Oxford University Press, 2005. | |
<
< | Thanks Julian. I would appricate more comments on the recent revision. | >
> | [] 1 in 100 U.S. Adults Behind Bars, New Study Says
Adam Liptak,
New York Times, 28 Feb 2008. | | | | |
<
< | -- JustinColannino - 03 Apr 2008
You still need to cut down your 2 intro sections.
It seems partially like proportionality = utilitarianism from reading this. But i don't think thats the point you're trying to make. I'm still not getting a good understanding of proportionality but as we discussed it seems the literature is fuzzy on the definition as well.
Overall, it seems like you've bitten off more than you can chew in this size piece. You discuss the huge prison population, how the moral panic/outrage cycle causes it, how proportionality can fix it, what proportionality is, the consequences of proportionality fixing it. You would probably be able to write 1000 words on any of these and, like in my paper, you need to choose which of these topics is most important to you to discuss and cut out a couple of the others. This will allow you the room to explore the topics you choose to discuss in depth. I know i told you before to explain what proportionality is, but it seems almost as unclear and you have a big paragraph to show for it.
On a personal stylistic note, I prefer short paragraphs cause it keeps the reader from getting lost in the paragraph and forces you to write topic sentences, making your point clear. This is the equivalent of a 2-3 page single spaced paper and you have 10 paragraphs. That seems too little.
-- JulianBaez - 04 Apr 2008 | | | |
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JustinColannino-SecondPaper 13 - 04 Apr 2008 - Main.JulianBaez
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THIS PAPER IS NOT READY TO BE GRADED. | | | -- JustinColannino - 03 Apr 2008 | |
<
< | %comment | >
> |
You still need to cut down your 2 intro sections.
It seems partially like proportionality = utilitarianism from reading this. But i don't think thats the point you're trying to make. I'm still not getting a good understanding of proportionality but as we discussed it seems the literature is fuzzy on the definition as well.
Overall, it seems like you've bitten off more than you can chew in this size piece. You discuss the huge prison population, how the moral panic/outrage cycle causes it, how proportionality can fix it, what proportionality is, the consequences of proportionality fixing it. You would probably be able to write 1000 words on any of these and, like in my paper, you need to choose which of these topics is most important to you to discuss and cut out a couple of the others. This will allow you the room to explore the topics you choose to discuss in depth. I know i told you before to explain what proportionality is, but it seems almost as unclear and you have a big paragraph to show for it.
On a personal stylistic note, I prefer short paragraphs cause it keeps the reader from getting lost in the paragraph and forces you to write topic sentences, making your point clear. This is the equivalent of a 2-3 page single spaced paper and you have 10 paragraphs. That seems too little.
-- JulianBaez - 04 Apr 2008
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JustinColannino-SecondPaper 12 - 03 Apr 2008 - Main.JustinColannino
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>
> | THIS PAPER IS NOT READY TO BE GRADED. | | | Proportionality in criminal penalties.
Introduction: Harsh penalties in the United States
The United States has a problem with incarceration. Since the 1970's America's incarceration rate has quadrupled CITE and has recently surpassed 1% of the total population CITE NEW YORK TIMES. This paper will explore some reasons why this has come to pass, and propose a measure we can take towards punishment to help reform our system of punishment. | | | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen, are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and evil playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [CITE]. In the latter case it is not the criminalization of behavior that occurs but the increase of punishments corresponding to that behavior.
Proportionality in sentencing, using weak or limited retributivism as a cap on penalties. | |
<
< | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation. We propose a different solution, that of a constitutional guarantee of not more than proportional sentences. | >
> | One of the purposes of a constitutions in democratic society is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect us from punishments easily ratcheted up by the sentencing system, but not easily ratcheted down.
Proportionality is at once a difficult and easy concept to define. Most, if not all, would agree that a two-hundred dollar fine for rape is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. Part of the problem is answering the question of to what ends does the proportionality serve. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by satisfying societies belief that the scales of justice are even for the offense. [cite the case book]. | | | | |
<
< | This solution is not new. Commentators have recommended such a policy in sentencing, calling it names from Limited or Weak retributivism to the Proportionality principle. Further, most have advocated that the 8th amendment should be construed to make such a guarantee of proportionality [cite]. Still, the Supreme Court has refused to agree on how to read such a guarantee, most recently in Ewing v. California [cite] [cite Frase]. | >
> | We advocate a position of “weak“ retributivism, where retributivism provides a cap on the pain endured by the offender relative to the harm he has committed, but other principals can be applied up to that point. However, other definitions exist. In current jurisprudence on the 8th amendment the supreme court has understood a guarantee of proportionality so long as the punishment satisfies one of the ends of proportional punishment (cite fraise). Commentators have noted that this interpretation serves little purpose because there is no cap to the pain that may be inflicted under a deterrent principals. Beyond a suggestion of “weak“ retributivism, Ricahrd Fraise and Youngjae Lee have independently suggested a disjunctive theory of proportionality where the punishment should be capped at whatever goal is satisfied by the least harsh punishment. Note that this paper does not attempt to answer the important question of whether this end can be achieved better through Supreme Court interpretation of the 8th amendment or a new constitutional amendment. | | | | |
<
< | Consequences:
Increased scrutiny for sentinces | >
> | SAY SOMTHING ABOUT REDUCING PRISON SENTINCES:!!!!! | | | | |
>
> | Consequences of a constitutional protection against disproportionate sentences.
Increased scrutiny for length of prison sentences
If there was an right against disproportionate sentences then at every sentencing a judge would have to answer the question of whether the sentience proportional to the offense committed, subject to review of higher courts. This increased scrutiny would have courts addressing the issue of proportionality in jurisprudence, where guidelines would be addressed and followed and would likely have the effect of some sentencing schemes proposed by the legislature to be held unconstitutional. | | | | |
<
< | Checks against moral panic
A difference between the United States and Europe is the willingness for judges and legislatures in the United States to depart upwards from proportionality in criminal punishment [Cite Whitman]. In fact, the European Union's Charter of Fundamental Rights states that “the severity of penalties must not be disproportionate to the criminal offense“ [link to PDF]. Whitman thinks that it is this difference that accounts for the disproportion between the United States and Europe in harsh punishment. | >
> | A Check against moral panics
Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation [CITE]. However, this politically insulated body already exists in the judicial branch of government. A constitutional guarantee of not more than proportional punishment would provide a mechanism to strike down punishments deemed too harsh, thus stopping the cycle of escalation in punishments. Further, as the case would need to be tried before the penalties struck down, the panic and outrage may have subsided allowing politicians reprieve from the negative effects. | | | | |
<
< | Provides a hook for prison reform
Use Nielson here
Proportionality may stop imprisonment all together for some crimes, and may force reforms inside jails. | >
> | A new jurisdictional hook for prison reform
The terrible conditions in prison have been well documented [CITE Nielson]. If criminals were guaranteed proportional punishment, the ability to send a criminal to a United States jail at all for some crimes could be challenged, with courts forcing with the choice: clean up jails or have no jail time for some classes of offense. | | | References
[] Excessive Prison Sentences, Punishment Goals,and the Eighth Amendment: “Proportionality”Relative to What?, | | | James Q. Whitman,
Oxford University Press, 2005. | |
>
> | Thanks Julian. I would appricate more comments on the recent revision. | | | | |
>
> | -- JustinColannino - 03 Apr 2008 | | | | |
<
< | Well you seem to have a whole argument there but I still don't know what proportionality means or how we define it. I don't think Americans taking part in the outrage cycle think they are asking for disproportional sentence. I think they also implicitly believe that harsher sentences will reduce crime. This is untrue but something you probably should address.
Also, how would people react to a proportionality argument and will it even be possible to enact? The current SCOTUS surely will not find it in the 8th Amendment which means its up to the legislature which is the most subject to the outrage cycle.
-- JulianBaez - 03 Apr 2008
Well you seem to have a whole argument there but I still don't know what proportionality means or how we define it. I don't think Americans taking part in the outrage cycle think they are asking for disproportional sentence. I think they also implicitly believe that harsher sentences will reduce crime. This is untrue but something you probably should address.
Also, how would people react to a proportionality argument and will it even be possible to enact? The current SCOTUS surely will not find it in the 8th Amendment which means its up to the legislature which is the most subject to the outrage cycle.
-- JulianBaez - 03 Apr 2008
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JustinColannino-SecondPaper 11 - 03 Apr 2008 - Main.JulianBaez
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Proportionality in criminal penalties.
Introduction: Harsh penalties in the United States | | | James Q. Whitman,
Oxford University Press, 2005. | |
>
> |
Well you seem to have a whole argument there but I still don't know what proportionality means or how we define it. I don't think Americans taking part in the outrage cycle think they are asking for disproportional sentence. I think they also implicitly believe that harsher sentences will reduce crime. This is untrue but something you probably should address.
Also, how would people react to a proportionality argument and will it even be possible to enact? The current SCOTUS surely will not find it in the 8th Amendment which means its up to the legislature which is the most subject to the outrage cycle.
-- JulianBaez - 03 Apr 2008
Well you seem to have a whole argument there but I still don't know what proportionality means or how we define it. I don't think Americans taking part in the outrage cycle think they are asking for disproportional sentence. I think they also implicitly believe that harsher sentences will reduce crime. This is untrue but something you probably should address.
Also, how would people react to a proportionality argument and will it even be possible to enact? The current SCOTUS surely will not find it in the 8th Amendment which means its up to the legislature which is the most subject to the outrage cycle.
-- JulianBaez - 03 Apr 2008 | | | |
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JustinColannino-SecondPaper 10 - 03 Apr 2008 - Main.JustinColannino
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Proportionality in criminal penalties.
Introduction: Harsh penalties in the United States | | | In his book Harsh Punishment, James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population.
Why has our punishment become harsh? The outrage dynamic and moral panic. | |
<
< | To answer this question we look at the dynamics of making criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonough? ? and applied to the creation of criminal laws by Philip Pettit [cite] identifies a cycle by which behavior becomes criminal. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [cite MacDonough? ? ]. The fourth stage is a report that the evil has not been eradicated, outrage again by the population which begins the process anew, leading to steeper penalties. | >
> | To answer this question we look at the dynamics of making criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonough and applied to the creation of criminal laws by Philip Pettit [cite] identifies a cycle by which behavior becomes criminal. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [cite MacDonough]. The fourth stage is a report that the evil has not been eradicated, outrage again by the population which begins the process anew, leading to steeper penalties. | | | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen, are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and evil playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [CITE]. In the latter case it is not the criminalization of behavior that occurs but the increase of punishments corresponding to that behavior. | | | This solution is not new. Commentators have recommended such a policy in sentencing, calling it names from Limited or Weak retributivism to the Proportionality principle. Further, most have advocated that the 8th amendment should be construed to make such a guarantee of proportionality [cite]. Still, the Supreme Court has refused to agree on how to read such a guarantee, most recently in Ewing v. California [cite] [cite Frase].
Consequences: | |
>
> | Increased scrutiny for sentinces | | | Checks against moral panic
A difference between the United States and Europe is the willingness for judges and legislatures in the United States to depart upwards from proportionality in criminal punishment [Cite Whitman]. In fact, the European Union's Charter of Fundamental Rights states that “the severity of penalties must not be disproportionate to the criminal offense“ [link to PDF]. Whitman thinks that it is this difference that accounts for the disproportion between the United States and Europe in harsh punishment.
Provides a hook for prison reform | |
>
> | Use Nielson here | | | Proportionality may stop imprisonment all together for some crimes, and may force reforms inside jails.
References | |
<
< | [] Proportionate Sentincing,,
Andrew von Hirsch and Andrew Ashworth,
Oxford University Press, 2005. | >
> | [] Excessive Prison Sentences, Punishment Goals,and the Eighth Amendment: “Proportionality”Relative to What?,
Richard S. Frase,
89 Minnasota Law Review 571, 2005. | | | | |
<
< | [] Proportionality Principles in the American System of Criminal Justice | >
> | [] Limiting Retributivism: The Consensus Model of Criminal Punishment, | | | Richard S. Frase, | |
<
< | Perspectives, The Magazine of the University of Minnesota Law School, Fall 2005. | >
> | in The Future of Imprisonment in the 21st Century, Michael Tonry, ed., Oxford University Press, December 2003. | | | | |
<
< | [] The Constitutional Right Against Excessive Punishment,
Youngjae Lee,
91 Virginia Law Review 677, 2005. | >
> | [] Proportionality Principles in the American System of Criminal Justice,
Richard S. Frase,
Perspectives, The Magazine of the University of Minnesota Law School, Fall 2005. | | | [] Moral Panics: The Social Construction of Deviance,
Erich Goode & Nachman Ben-Yehuda,
Blackwell Publishing, 1994. | |
>
> | [] Proportionate Sentincing,
Andrew von Hirsch and Andrew Ashworth,
Oxford University Press, 2005. | | | | |
<
< | -- JustinColannino - 28 Mar 2008 | >
> | [] The Constitutional Right Against Excessive Punishment,
Youngjae Lee,
91 Virginia Law Review 677, 2005. | | | | |
>
> | [] Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse,
Eva S. Nilsen,
41 UC-Davis Law Review 111, 2007.
[] Is Criminal Justice Politically Feasible,
Philip Pettit,
5 Buffalo Criminal Law Review 427, 2002. | | | | |
<
< | FYI - Eben seems to vastly prefer in text links over references at the end. I'm sure this is just cause you're still working in the outline phase but its something really easy to forget about. | >
> | [] Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe,
James Q. Whitman,
Oxford University Press, 2005. | | | | |
<
< | -- JulianBaez - 02 Apr 2008 | | | |
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JustinColannino-SecondPaper 9 - 02 Apr 2008 - Main.JustinColannino
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Proportionality in criminal penalties.
Introduction: Harsh penalties in the United States
The United States has a problem with incarceration. Since the 1970's America's incarceration rate has quadrupled CITE and has recently surpassed 1% of the total population CITE NEW YORK TIMES. This paper will explore some reasons why this has come to pass, and propose a measure we can take towards punishment to help reform our system of punishment. | |
<
< | Why the high incarceration rate?
In his book Harsh Punishment, James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prision time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentinces for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Longer sentinces and more crimes which demand a prison term are two clear factors which lead to a larger prison population. | >
> | Why the high incarceration rate?
In his book Harsh Punishment, James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Longer sentences and more crimes which demand a prison term are two clear factors which lead to a larger prison population. | | | | |
<
< | Why does this happen? | >
> | Why has our punishment become harsh? The outrage dynamic and moral panic.
To answer this question we look at the dynamics of making criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonough? ? and applied to the creation of criminal laws by Philip Pettit [cite] identifies a cycle by which behavior becomes criminal. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [cite MacDonough? ? ]. The fourth stage is a report that the evil has not been eradicated, outrage again by the population which begins the process anew, leading to steeper penalties. | | | | |
>
> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen, are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and evil playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [CITE]. In the latter case it is not the criminalization of behavior that occurs but the increase of punishments corresponding to that behavior. | | | Proportionality in sentencing, using weak or limited retributivism as a cap on penalties. | |
>
> | Pettit concludes his exploration of the outrage dynamic by recommending a politically insulated policy board to set sentences for crimes, thereby breaking the cycle of punishment escalation. We propose a different solution, that of a constitutional guarantee of not more than proportional sentences.
This solution is not new. Commentators have recommended such a policy in sentencing, calling it names from Limited or Weak retributivism to the Proportionality principle. Further, most have advocated that the 8th amendment should be construed to make such a guarantee of proportionality [cite]. Still, the Supreme Court has refused to agree on how to read such a guarantee, most recently in Ewing v. California [cite] [cite Frase]. | | | Consequences:
Checks against moral panic | |
>
> | A difference between the United States and Europe is the willingness for judges and legislatures in the United States to depart upwards from proportionality in criminal punishment [Cite Whitman]. In fact, the European Union's Charter of Fundamental Rights states that “the severity of penalties must not be disproportionate to the criminal offense“ [link to PDF]. Whitman thinks that it is this difference that accounts for the disproportion between the United States and Europe in harsh punishment. | | | Provides a hook for prison reform | |
>
> | Proportionality may stop imprisonment all together for some crimes, and may force reforms inside jails. | | | References
[] Proportionate Sentincing,,
Andrew von Hirsch and Andrew Ashworth, |
|
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JustinColannino-SecondPaper 8 - 02 Apr 2008 - Main.JustinColannino
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| META TOPICPARENT | name="WebPreferences" |
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Proportionality in criminal penalties.
Introduction: Harsh penalties in the United States | | | Why the high incarceration rate?
In his book Harsh Punishment, James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prision time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentinces for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Longer sentinces and more crimes which demand a prison term are two clear factors which lead to a larger prison population. | |
<
< | that the disproportion between american sentinces and those of some european countres are such that American inmates serve sentences roughly five to ten times as long as their European counterparts. | >
> | Why does this happen? | | | Proportionality in sentencing, using weak or limited retributivism as a cap on penalties.
Consequences: |
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JustinColannino-SecondPaper 7 - 02 Apr 2008 - Main.JustinColannino
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<
< | | | | Proportionality in criminal penalties. | |
<
< | Introduction: Disproportionate Sentincing in the US | >
> | Introduction: Harsh penalties in the United States
The United States has a problem with incarceration. Since the 1970's America's incarceration rate has quadrupled CITE and has recently surpassed 1% of the total population CITE NEWYORK TIMES. This paper will explore some reasons why this has come to pass, and propose a measure we can take towards punishment to help reform our system of punishment.
Why the high incarceration rate?
In his book Harsh Punishment, James Q. Whitman discusses two aspects of the American law of punishment that are responsible for the increase in incarceration rate. First is the increase in offenses demanding prision time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentinces for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Longer sentinces and more crimes which demand a prison term are two clear factors which lead to a larger prison population.
that the disproportion between american sentinces and those of some european countres are such that American inmates serve sentences roughly five to ten times as long as their European counterparts. | | | Proportionality in sentencing, using weak or limited retributivism as a cap on penalties.
Consequences:
Checks against moral panic |
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JustinColannino-SecondPaper 6 - 02 Apr 2008 - Main.JustinColannino
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Proportionality in criminal penalties. | |
<
< | Introduction: Ewing and weak or limited retributivism. | >
> | Introduction: Disproportionate Sentincing in the US | | | Proportionality in sentencing, using weak or limited retributivism as a cap on penalties.
Consequences:
Checks against moral panic |
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JustinColannino-SecondPaper 4 - 02 Apr 2008 - Main.JustinColannino
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<
< | Proportionality as a civil liberty: should we be guaranteed just deserts?
Introduction
Proportionality in sentencing | >
> | Proportionality in criminal penalties.
Introduction: Ewing and weak or limited retributivism.
Proportionality in sentencing, using weak or limited retributivism as a cap on penalties. | | | Consequences:
Checks against moral panic
Provides a hook for prison reform |
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JustinColannino-SecondPaper 2 - 01 Apr 2008 - Main.JustinColannino
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<
< | I am torn between the two paper topics. As I expand, I more then welcome comments/suggestions.
Expanding Privacy: A Social Network Argument
The Problem: When is the Public Private?
The Courts' Treatment
Using Strongly Connected Social Networks To Expand Privacy Rules
On Speaking Out or Saying Nothing; OR Working inside or outside the system
Speaking Out
Saying Nothing
How/When should we use these tools? | >
> | Proportionality as a civil liberty: should we be guaranteed just deserts?
Introduction
Proportionality in sentencing
Consequences:
Checks against moral panic
Provides a hook for prison reform
References
[] Proportionate Sentincing,,
Andrew von Hirsch and Andrew Ashworth,
Oxford University Press, 2005.
[] Proportionality Principles in the American System of Criminal Justice
Richard S. Frase,
Perspectives, The Magazine of the University of Minnesota Law School, Fall 2005.
[] The Constitutional Right Against Excessive Punishment,
Youngjae Lee,
91 Virginia Law Review 677, 2005. | | | -- JustinColannino - 28 Mar 2008 |
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JustinColannino-SecondPaper 1 - 28 Mar 2008 - Main.JustinColannino
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I am torn between the two paper topics. As I expand, I more then welcome comments/suggestions.
Expanding Privacy: A Social Network Argument
The Problem: When is the Public Private?
The Courts' Treatment
Using Strongly Connected Social Networks To Expand Privacy Rules
On Speaking Out or Saying Nothing; OR Working inside or outside the system
Speaking Out
Saying Nothing
How/When should we use these tools?
-- JustinColannino - 28 Mar 2008
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