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), 446
Andrade stole 5 videotapes from a KMart, 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. 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.
0%
1
0%
0%
2
3
0%
4
Rate of Felonies (All) by Age per
100,000 population, California, 2006
4000
3500
3000
2500
2000
1500
1000
500
0
15- 20- 25- 30- 35- 40- 45- 50- 55- 60- 6519 24 29 34 39 44 49 54 59 64 69
What do you think should
be the longest sentence
for a nonviolent offence?
1. 5 years
2. 10 years
3. 15 years
4. 20 years
5. Life
0%
1
0%
0%
2
3
0%
4
0%
5
Purposes of Punishment
Crime Control
Deterrence
Incapacitation
Rehabilitation
Therapeutic
Moral Purposes
Moral example
Demarcation
Remediation
Retribution
Humiliation
Penitence
Bentham, “A Utilitarian Case for
Deterrence,” 452
Deterrence
Sentence 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%
Agg. Assault: 60%
Rape: 50%
Robbery: 25%
Larceny: 20%
Arson: 15%
Burglary: 15%
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 Disparities
In 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, 504
Payne 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. Yes
2. No
0%
1
0%
2
Do You Support the
Death Penalty?
1.Yes
2.No
0%
1
0%
2
Support for Death Penalty 1936-2011
Do you believe that the death
penalty is applied fairly or unfairly?
1.Fairly
2.Unfairly
3. No opinion
0%
1
0%
2
0%
3
Is Death Penalty Fairly Applied, 2001-2011
Who Supports the Death Penalty?
Support
64
Oppose
32
57
38
52
45
30-49 years old
62
35
50-64 years old
64
32
65 years & up
65
29
Men
Women
18-29 years old
19
77
19
79
19
81
19
83
19
89
19
91
19
95
19
98
20
00
20
04
20
06
20
08
Death Sentences 1977-2009
350
300
250
200
150
100
50
0
20
07
20
04
19
99
19
95
19
90
19
87
19
83
19
80
19
77
Executions 1977-2009
120
100
80
60
40
20
0
Death Sentences & Executions
350
300
250
200
150
100
50
20
07
20
04
19
99
19
95
19
90
19
87
19
83
19
80
19
77
0