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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. | |
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< | 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. | |
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< | 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. | |
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< | 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]. | | | | |
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< | 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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