Law in Contemporary Society

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JustinColannino-SecondPaper 26 - 15 May 2008 - Main.JustinColannino
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  • 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?
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  • 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.
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  • 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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  • 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.
  1. The unclear definition of proportionality (beyond our intuitions) makes it a difficult legal term to apply.
  2. 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'.
  3. 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.
 
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  • 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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Revision 26r26 - 15 May 2008 - 16:01:10 - JustinColannino
Revision 25r25 - 11 May 2008 - 13:56:10 - JustinColannino
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