Criminal Procedure : Week of March 4

4 March

• Notes from Beth

5 March

• Why do we have such a disproportionately high proportion of our population in prison? Possibly we are punishment-crazed. Possibly it's a desire to punish-- we are out of sync with the rest of the world.
• Three different things:
  • Authorized punishment
  • Imposed punishment
  • Experienced punishment
• One thing that's clear: there's no direct relationship between the amount of crime and the amount of imprisonment. The controlling factor may be intolerance of deviance: this accounts both for a downturn in anti-social behavior and an increased desire to penalize it.
• How do we reconcile our desire not to waste money with our desire to punish people? We're willing to pay a fair amount of money for a symbolic remedy.
• Are we likely to have fewer prisons in order to be kind to children? On the one hand, if we spent our money on the front end (education, etc.), we might prevent crime.
• The Federal sentencing matrix: for a while this *was* sentencing, and it was also sentencing reform. Academics got really fascinated with it. Honesty, uniformity (geographical and otherwise), proportionality.
• Note: they specify a bunch of factors not ordinarily relevant to sentencing (see sec. 5H p. 515). Maybe some of those photos are relevant to us, when we want to assign punishment. A law that requires us to ingore individual facts and circumstances when making a moral choice (punishment) is a disconnect.
• Tables are treacherously easy to adjust over time.

6 March

• Herman Goldstien: the guru of modern policing. Among other things, he theorizes that innovation in the criminal justice system (which is badly needed) is very hard to achieve when there is lots of money. Creativity is bred by a lack of resources, it seems.
• Some of the reason for eliminating all the would-be relevant considerations in the Federal guidelines was to eliminate inequality. Factors beyond someone's control were not to be considered, as a rule. But many of these individual factors have direct bearing on propensity to re-offend.
• Note that some supposedly constructive punishments may impose crazy conditions. Suppose you sentence someone to have to show up to do work for community service. Do they have appropriate clothes? Transport? A way of getting up on time? Should we not provide these things during the period of punishment?
• Why do the "presumptive guidelines" become pretty much mandatory? You're only alowed to deviate on the basis of some factor not properly considered in the guidelines. But then the guidelines say "we have considered x, y, z," and probably all the factors you can think of.
• The "substantial assistence" decrease: the head of a drug enterprise who has lots of info about contacts, etc., might get a lesser sentence than the courier who worked for him.
• How is giving credit for acknowledgement of guilt different from giving consideration to any of the other factS? We want to encourage people to plead guilty.
• Looking at the sentencing table, pretty much the only thing that a defense lawyer can do, is go to the prosecutor and try to get a lesser charge.
• "Day Fine:" a European innovation-- paying a percentage of daily income as a sentence. This got rid of a huge number of short prison sentences when it was introduced. How come we like prison so much more than this? We PAY money to incarcerate people, rather than GAIN money via fines.
• Consider Michael Milken: he made huge amounts of money in prison just in dividends and interest. It might have been harsher to sentence him to ordinary life.