Theories of Punishment• “Punishment and Responsibility,” 442;;

Dolinko, “The Future of Punishment,” 449; • Moore, The Argument for Retributivism, 456;

“The Death Penalty,” 466

Lockyer v. Andrade (2003), 446Andrade stole 5 videotapes from a K-

Mart, 2 weeks later, he stole 4 videotapes from another K-Mart. The total value was ~ $150.

Andrade had previous convictions for petty theft, residential burglary, transportation of marijuana, and escape from prison.

Lockyer v. Andrade (2003), 446

Prosecutors charged Andrade with 2 counts of felony petty theft (which can be either a misdemeanor or felony under CA law)

Under the CA 3 strikes law, Andrade was sentenced to two consecutive terms of 25 years to life in prison

Should there be “3 strikes and you’re out” laws?

1 2 3 4

0% 0%0%0%

1. Yes, 2 of 3 crimes must be violent

2. Yes, all 3 crimes must be violent

3. Yes, the third crime must be violent

4. No.

Rate of Felonies (All) by Age per 100,000 population, California, 2006

0500

1000150020002500300035004000

15-19

20-24

25-29

30-34

35-39

40-44

45-49

50-54

55-59

60-64

65-69

What do you think should be the longest sentence for a nonviolent offence?

1 2 3 4 5

0% 0% 0%0%0%

1. 5 years2. 10 years3. 15 years4. 20 years5. Life

Purposes of Punishment

Crime Control DeterrenceIncapacitationRehabilitationTherapeutic

Moral PurposesMoral exampleDemarcationRemediation RetributionHumiliationPenitence

Bentham, “A Utilitarian Case for Deterrence,” 452

DeterrenceSentence based on effectiveness in

reducing rate and severity of criminal harm, not justice

Assumes that criminal behavior proceeds from rational calculation

Effectiveness highly variable among different types of crime

Research shows severity less important than certainty of punishment

Crime Index Offenses Cleared by the Police (20% overall)

Murder: 70% Larceny: 20%Agg. Assault: 60% Arson: 15%Rape: 50% Burglary: 15%Robbery: 25% Motor Vehicle

Theft: 15%

Furman v. Georgia (1972)Furman killed a homeowner while

committing a burglary, was found guilty of felony murder & sentenced to die.

Furman v. Georgia (1972)"These death sentences are cruel and

unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”

Justice Potter Stewart (concurring)

Gregg v. Georgia (1976), 512

Gregg was charged with armed robbery and murder.

Georgia procedure in capital cases separated the trial into two stages, one to determine guilt, the second to set the sentence

McCleskey v. Kemp, 490

Persons Executed for Interracial Murders 1973-2010

Other Studies of Racial DisparitiesIn California, killers of whites were

more than 3 X more likely to receive death sentences than if they killed minorities (Pierce & Radelet, 2005)

In North Carolina, killers of whites were 3.5 X more likely to receive death sentences than if they killed minorities (Boger & Unah, 2001)

Race of Death Row Inmates 2010

North Carolina’s Racial Justice Act of 2009

Death-row inmates have the right to have their sentences commuted to life without parole if they can prove racial bias played a part in their death sentences.

Law allows inmates to use data from studies that show bias in the judicial system statewide – need not show individualized evidence.

Payne v. Tennessee, 504

Payne v. Tennessee, 504Payne killed Charisse Christopher & her 2

year old daughter Lacie, stabbing Charisse 42 times, & leaving her 3 year old son Nicholas for dead with severe stab wounds (the boy survived).

Charisse’s mother testified at sentencing as to how Nicholas missed his mother & sister & his continuing health issues

Payne v. Tennessee, 504

Do you believe that victim impact statements should

be part of sentencing?

1 2

0%0%

1. Yes2. No

Do You Support the Death Penalty?

1 2

0%0%

1.Yes2.No

Support for Death Penalty 1936-2011

Do you believe that the death penalty is applied fairly or unfairly?

1 2 3

0% 0%0%

1.Fairly2.Unfairly3. No opinion

Is Death Penalty Fairly Applied, 2001-2011

Who Supports the Death Penalty?Support Oppose

Men 64 32

Women 57 38

18-29 years old 52 45

30-49 years old 62 35

50-64 years old 64 32

65 years & up 65 29

Death Sentences 1977-2009

0

50

100

150

200

250

300

350

Executions 1977-2009

0

20

40

60

80

100

120

Death Sentences & Executions

0

50

100

150

200

250

300

350