Punishment

Rationale Social contract – Avoid chaos by giving State authority to punish us for our transgressions – within limits Goals – Retribution – Reform – Incapacitation – Deterrence – Rehabilitation Issues – Can punishment and treatment coexist? – Why are some offenses punished more severely than others? – Are the poor unfairly treated? More likely to be selected? More severely punished?

Are white-collar criminals more leniently punished? Martha Stewart – In 2001, after a phone call by her stockbroker, who got an illegal insider tip, she sold 4,000 shares of a stock just before a negative report about the company. – In 2004 Stewart was convicted by a jury of conspiracy, obstruction and lying to investigators. She could have received 20 years. She received ten months and served five in prison and five at home. She also paid $195,000 to settle SEC fraud charges. Jeffrey Skilling – In 2006 the former Enron president received 24 years for a massive accounting fraud that grossly overvalued the company, making major stockholders like himself and other top Enron executives incredibly rich. – Enron’s collapse led to investor losses of $60 billion. All employees lost their jobs and pensions. – Ken Lay, the company’s chairman president, was also convicted. He died from a heart attack several months later. His conviction, on appeal, was overturned. – Former CFO Andrew Fastow, who cooperated with the government, got six years.

Purpose: retribution Not meant to deter or prevent crime Sets boundaries for behavior Replaces vengeance and vigilantism with justice Expresses social disapproval Binds society Provides opportunity for personal “salvation” Punish crime or the criminal? – Determinate: according to the crime – Indeterminate: according to the criminal Justice v. “deserts” models of punishment – Justice – punishment as a social response to crime – Deserts – punishment as a proportional response to misbehavior

Purpose: prevention Deterrence – Focus on needs of society – not individuals – General deterrence: discourage persons in general from committing an offense – Specific deterrence: discourage individuals from committing an offense – Assumes that people are rational – that criminals make cost/benefit analysis Incapacitation – Prevent crime by removing offenders from society – Length of incapacitation varies according to various factors Perceived seriousness of offense Likelihood of recidivating – Extremes Mandatory sentences Three-strikes laws Death penalty Treatment – Can crime be “cured”? – Should treatment be available? – Should participation be mandatory?

Goal: utility or equity? Prevention -v- retribution – Prevention emphasizes utility – Retribution emphasizes fairness – Move to determinate sentencing Von Hirsch and Hanrahan – “modified just deserts” – Desert justifies a range of punishment for each kind of offense – Penalties can be adjusted for their preventive value based on individual differences

Prediction Both rationales of punishment – prevention and retribution (deserts) require predicting future conduct – Is it possible to predict dangerousness or recidivism? Errors in prediction – Type I: Wrongly identify someone as dangerous – Type II: Fail to identify someone as dangerous Two and three-strike laws – Prevention or deserts?

Federal sentencing before 1984 Indeterminate sentences, actual length fixed by Parole Commission after sentencing Wide disparity in sentences given and served Dishonest - persons usually served only 1/3 of their terms Impetus for change – Honesty – Fairness – Proportionality

Federal sentencing guidelines Federal sentencing guidelines (1984) Takes prevention and deserts into account Abolished parole Method – Sentencing table with 43 levels, probation to life imprisonment – Each crime has its own base level and its own range – Within crimes, certain characteristics (being armed, how much stolen) can increase the level – Other adjustments: role in the crime, accepting responsibility, criminal history

...and then it changed again – twice! Blakely v. Washington (Supreme Court, no , 6/24/04) – Under the Sixth Amendment, any factors that are used to set a sentence above the standard range must be decided by the trier of fact – For example, if after a jury trial a judge uses the defendant’s past conduct to enhance his/her punishment, the jury must have determined, beyond a reasonable doubt, that this conduct took place. U.S. v. Booker (Supreme Court, no , 1/12/05) – Federal sentencing guidelines must be considered but are only “advisory”. Under Sixth Amendment and other Federal statutes Courts need sufficient flexibility to make “reasonable” sentencing decisions. – Factors to be considered include seriousness of the offense promoting respect for the law providing just punishment affording adequate deterrence protecting the public providing defendants with needed training and medical care