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JustinColannino-SecondPaper 18 - 06 Apr 2008 - Main.JustinColannino
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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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THIS PAPER IS NOT READY TO BE GRADED.
Just Desert: Why We Deserve a Right Against Disproportionate Punishment
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<
< | 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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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 | |
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< | [] 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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< | Proportionality in criminal penalties. | >
> | Proportional punishment. | | | Introduction: Harsh penalties in the United States | |
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< | 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. | | | | |
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< | 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. | |
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< | 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. | | | | |
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< | 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. | | | | |
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< | 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. | |
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< | 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]. | | | | |
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< | 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]. | | | | |
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< | 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. | | | | |
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< | -- 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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