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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. | |
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> | *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. | |
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> | *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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