PHIL 22B: Philosophy of Law
Professor Andreas Teuber


   The Aims and Limits of Punishment

    "Cruel and Unusual" Punishments

    The Death Penalty

   A Victims' Rights Constitutional Amendment

   Victims' Rights: Justice or Revenge?

   Justice Scalia's Dissent



I. The Aims and Limits of Punishment )

In 1975 in New York Rabbi Bernard Bergman was indicted on charges of conspiracy to defraud the government through the use of inflated Medicaid claims made in connection with a number of nursing homes he operated. Bergman entered a plea of guilty and came before Judge Frankel for sentencing. Alan Dershowitz, Bergman's attorney, argued that no legitimate (or useful) purpose would be served by punishing Bergman. Weighing Dershowitz' contention, Judge Frankel entertained several theories of criminal punishment and explored their applicability to Bergman and his crime.

II. First Theory: Rehabilitation)

First, Frankel considered the view that the only legitimate purpose of punishment is with the rehabilitation of the offender. On this view, the sole purpose of determining whether a defendant is guilty or innocent is to sort out who is and who is not "ripe" for rehabilitation, to identify those individuals who need preventive detention and therapy. Frankel rejected this purpose as a goal of punishment since punishment ought to visit a hardship upon the convicted criminal. If punishment is is seen as doing him some good, it fails to acknowledge what it means to punish someone for their crimes, it fails to punish. Frankel did not deny that rehabilitation might be something to consider while a convicted criminal is serving out his punishment. But he argued, rehabilitation cannot be the sole purpose for punishing a convicted criminal nor can it replace the grounds for sentencing a convicted criminal to confinement in the first place. If rehabilitation is the sole purpose of punishment, Bergman ought not to be punished.

III. Second Theory: Deterrence)

Frankel then went on to consider the differences between specific and general deterrence theories of punishment, arguing that the latter is the basic aim of punishment, i. e., the primary point of punishment is to induce others to avoid acting as the offender did.

IV. The "Crime" of Punishment)

Objecting to Frankel's analysis, Dershowitz sought to undermine Frankel's appeal to a theory of deterrence on the grounds that deterrence theories offend the Kantian maxim that persons ought to be treated as ends in themselves, never as a means only, and that punishing Bergman in order to deter others was a way of using Bergman for the greater good of others or of the society as a whole and that this was not fair to Bergman. (Kant urges that a minimal respect for persons requires that persons be treated as ends in themselves and not merely as a means to other people's ends). Frankel confessed that he did not "pretend to be an authority" on the work of Immanuel Kant, but that he believed that he was treating Bergman as an end in himself since Bergman had had the opportunity of abiding by the law or breaking it and accepting the penalty. Our legal system shows sufficient respect for persons, treating them as ends in themselves, since it presupposes that persons make choices and are accountable for their actions. Having defended his view, Frankel of course was faced with having to decide what specific punishment he should dole out in this case. What would deterrence require? And what punishment would fulfill the goal of retribution?

V. Theories of Punishment: Utilitarianism v. Deontological ethics )

The various theories raised by Judge Frankel's Sentencing Memorandum align themselves with two different moral theories: utilitarianism and deontological ethics. Utilitarianism is one of a variety of theories that takes the consequences of an act as the arbiter of whether the act is right or good. So if the consequences of an act or a policy are, taken together, good, then the act is good. Deontological ethics, of which Kantian ethics is an example, takes the moral correctness of an act as given by its conformity to our duties and obligations to treat one another in certain ways. A Kantian or retributive view of punishment is intimately bound up with what a person deserves. The utilitarian holds that for a punishment to be justified it must do some good. The problem with the retributive view, a utilitarian might say, is that it can produce situations where we are required to punish someone even if it clearly doesn't do any good and going about punishment in this way is inconsistent with a humane and forward-looking approach to criminality. The Kantian, however, might argue that a utilitarian approach to punishment can lead to situations in which persons are undeservedly punished. Suppose a judge decides to punish you with life imprisonment for running a stop-sign. He decides to do so because he is "sick and tired" of having to deal "time and again" with lawlessness of this sort and he is hoping that by setting an example, others will come to realize the consequences of acting as you did and cease to behave so badly. Even assuming that the judge is right and that lawlessness of this sort will decline dramatically with the imposition of such a sentence, from a Kantian's point of view, you have very good reason to wonder what gives the judge the right to use you in this way. Indeed it is this wonder that lies at the heart of the retributivist and Kantian insistence that punishment must be deserved, if it is to be fair or just. The difficulty with a utilitarian approach to punishment, the Kantian will argue, is that it allows persons to be punished out of all proportion to their guilt and even in the absence of any guilt whatsoever, if it serves the best interests of the community at large.

VI. The Capital Punishment of the Dog Provetie (May 15,1595) )

The dog Provetie bit the finger of the child of Jan Jacobsz van der Poel while the child was playing in the house with a piece of meat in his hand. A few days later the child died of fright. The dog was arrested and imprisoned and a confession was elicited from him "without torture or being put in irons." The dog was then tried and condemned to death. The court ruled that the dog Provetie be taken to Gravesteijn "where evildoers are customarily punished" and hanged by "a rope until death ensues" and then taken to the gallows field, "to the deterring of other dogs and to all as an example." Moreover, all "his goods, should he have any" were ordered confiscated and forfeited to the local authorities. Why is the trial and punishment of the Dog Provetie strange? What makes it absurd? What does its absurdity suggest about the rationale for punishment?

VIII. Utilitarian Theories of Punishment (Again) )

The Utilitarian argues that punishing a person is justified if and only if doing so has (or is likely to have) better consequences than not doing so, "when, and only when, it is a means to such future goods as reform of the offender, protection of society against other offenses from the same offender, and the deterrence of other would-be offenders" (Feinberg) - by contributing to the individual's retribution, by incapacitating the offender, thereby preventing him from engaging in further undesirable behavior, and through deterring others from committing the same offense. The utilitarian holds that it is necessary for punishment to be justified that it do some good.

IX. Deontological Views of Punishment Re-visited)

The deontological view of punishment is usually referred to as retributivism. The deontological view holds that punishment of an individual is justified if and only if it gives him or her what he or she deserves. "Punishment is justified only on the ground that the wrongdoing merits punishment." (Feinberg) Justification is backward-looking as opposed to forward-looking.

X. Proportionality)

A utilitarian interpretation of proportionality will rest on the future advantages of the punishment. A punishment is disproportionate only if it is more or less than what is required for the pursuit of a legitimate state purpose. Any punishment which is inflicted beyond what is necessary, say, to deter the offender and others from engaging in anti-social conduct is without point. On a retributive theory the punishment must fit the crime; it ought to be of a gravity or severity justly proportional to the seriousness of the crime.

XI. The Function of Punishment)

Punishment might be said to have two distinctive features: hard treatment and reprobation. If either is absent, punishment is lacking. Punishment expresses the community's disapproval, indignation, resentment. Expression of the community's condemnation is generally believed to be an essential ingredient of punishment. "Indeed it can be said that punishment expresses the judgment ( as distinct from the feeling) of the community that what the criminal did was wrong." (Joel Feinberg) The two features of punishment usually go hand in hand. The community does not express its disapproval of what the criminal did and then inflict unpleasant treatment, although it may sometimes appear as if this is the case, i.e., a judgment is expressed at the end of the trial and a punishment is then inflicted. As Joel Feinberg says, "it would be more accurate in many cases to say that the unpleasant treatment expresses the condemnation."

XII. Punishments and Penalties

What is it that a punishment has and a penalty lacks? Is the difference simply the degree of severity? The loss of one's driver's license is a penalty; a day in jail is a punishment. But for some people the loss of one's license is significantly harsher than a day in jail. The key difference is to be found in the stigma attached to punishment. What separates a punishment from a mere penalty is that a punishment condemns, the penalty does not. Furthermore, the difference is far from inconsequential. Someone who is threatened by punishment is entitled to certain safeguards and protections: the right to a trial by jury, the right to confront witnesses, etc.; whereas a person who is threatened by a mere penalty - a parking fine, suspension of one's driver's license - is protected by no such safeguards.

XIII. The Subversive Drivers Act (New York State Legislature, 1961) )

In 1961 the NY State Legislature enacted "The Subversive Drivers Act," requiring "the suspension and revocation of the driver's license of anyone who has been convicted, under the Smith Act, of advocating the overthrow of the Federal government." According to the bill's sponsor, Assemblyman Paul Taylor, the legislature was simply exercising its right to regulate automobile traffic in the interests of public safety. Was this punishment?

XIV. Flemming V. Nestor (United States Supreme Court, 1960)

Nestor had immigrated to the United States from Bulgaria in 1913. In 1955 he became eligible for Social Security. But one year later, in 1956, he was deported under the Immigration and Nationality Act, for having been a member of the Communist Party from 1933 to 1939. At the time he was deported he had been in America for 43 years and had been a member of the Party for more than two decades. Although he was forced to leave the country, he could look forward at least to the continuation of his social security benefits. However, the Social Security Act was amended in 1954 (in the height of the McCarthy period) to allow the termination of the benefits of an alien who was deported on a number of specified grounds, one of which was, past membership in the Communist Party. Social security administrators stopped Nestor's benefits. Nestor then brought suit in District Court seeking a reversal of the administrative decision. The District Court ruled in his favor, saying he was deprived of his benefits without the the opportunity to exercise his constitutional rights to defend himself. The Supreme Court, however, reversed the lower Court's decision, arguing that the termination of Nestor's benefits was within the plenary power of Congress to regulate an activity and that it was not, did not constitute, a punishment, and hence Nestor was not entitled to the usual safeguards and protections of a criminal defendant. If you were on the Court, would you side with the majority or with the dissent?

XV. Strict-Liability, Penalty, and Punishment)

Some commentators believe that imposing imprisonment rather than fines for the violation of strict liability statutes is improper, if not unconstitutional, when the defendant is not the least at fault. Violations can only be punished by a fine, forfeiture, or other civil penalty, and none of the disabilities based on conviction of a criminal offense can follow. Statutory rape and the felony-murder rule, and various "public welfare" offenses (for example, the mislabeling of drug products) have been among those offenses imposing strict criminal liability, the defining feature of which is the refusal to require proof of the actor's state of mind as a prerequisite for liability. A basic principle of our law, however, has been that the punishment must be deserved. And this principle has been interpreted to require a finding of mens rea: Only where I have acted with the intent to commit an offense against the law, and therefore acted with a culpable or blameworthy state of mind, should I be subjected to punishment. Justifications for strict criminal liability offenses are often utilitarian in nature: appealing to the supposed good consequences of imposing such liability. It can be argued, for example, that it will deter crime by inducing those contemplating felonious conduct to think again or think twice before engaging in such conduct. One might object, however, that it is wrong and unfair to thus use the defendant as an expedient to promote the greater public good. Persons should be punished only when they manifest a culpable state of mind for the offense with which they have been charged. "There is something very odd and offensive in punishing people for admittedly faultless conduct; for not only is it arbitrary and cruel to condemn someone for something he did (admittedly) without fault, it is also self-defeating and irrational." (Feinberg)

XVI. Punishment and Taint)

The principle of tainting dates back to the origins of prosecution for criminal homicide. In 13th century England the assumptions was that if a person caused the death of another, he had upset the natural order; some response was necessary to expunge the taint. English law extracted two forfeitures in the case of homicide: one, the instrument of death was forfeited to the Crown and two, the killer forfeited his lands and goods. The model of taint haunts criminal law. The Subversive Drivers Act might best be understood in this light.

XVII. Punishment and the Risks of Wrong-doing (Offender Beware!) )

In defense of the felony murder rule one might argue that someone who engages in a felony runs the risk that things will turn out worse than she expects. So in a case where the defendant committed an assault against someone who turned out to be a police officer, he was convicted of assaulting an officer without regard to the reasonableness of his mistake. The U. S. Supreme Court upheld the conviction because "from the very outset ... his planned course of conduct was wrongful." So the wrongdoer had, as it were, "to take his victim as he found him." If wrongdoing justifies disregarding mistakes about aggravating circumstances, then committing a felony can justify disregarding whether the deadly outcome of the felony is accidental or culpable. Both tainting and subjecting offenders to the risks of a punishment greater than might otherwise "fit" the crime violate the principle of just punishment: Punishment must be proportional to wrongdoing.



United States v. Carlston (West's Federal Supplement, California, 1983)

The court ordered Carlston who was convicted of tax evasion to purchase computers and to teach their use to probationers and parolees, arguing that Carlston would thereby be "constantly reminded that his conduct was legally and socially wrong."

Bienz v. State (District Court of Appeal, Florida, 4th District, 1977)

As a condition of his probation, Bienz was ordered by the trial court to enter a halfway house and obey all instructions given to him by his supervisors. A supervisor accused him of "acting like a baby" and ordered him to wear diapers over his trousers. Bienz appealed on the grounds that these orders constituted cruel and unusual punishment.

People v. McDowell (59 Cal. App. 3d 807, 1976)

Windell McDowell appealed his conviction for purse snatching, complaining that the requirement that he wear taps on his shoes whenever he left his residence was "tantamount to a sign saying 'I am a thief.'"

United States v. William Anderson Company, Inc. (698 F.2d 911. 8th Cir., 1983)

The court expressed approval of several behavioral sanctions imposed on executives of the Anderson Company as conditions of their probation, including speeches before civic groups on the evils of price fixing. The court noted that "measures are effective which have the impact of the 'scarlet letter' described by Nathaniel Hawthorne or the English equivalent of 'wearing papers' in the vicinity of Westminster Hall like a sandwich-man's sign describing the culprit's transgressions."

State v. Kirby (Oregon Circuit Court for Lincoln County, Oregon, 1986)

In Oregon in 1986, Thomas Kirby was placed on probation on the condition that he publish, at his own expense, an advertisement, accompanied with a picture, in the local newspaper. The ad was to read "Criminal's Apology."

State v. Bateman (Oregon Circuit Court for Multnomah County, Oregon, 1986)

In 1985 Richard Bateman was convicted on two counts of first degree sexual abuse. Though he faced a maximum sentence of five years in prison and a large fine, the court suspended his sentence and placed him on probation. As one of the conditions of his probation, Bateman was required to place, on the door of his residence, and on both doors of any vehicle he might drive, in three-inch lettering, the words "Dangerous Sex Offender-No Children Allowed."

Recent Legislation for Drug-related Offenses in Texas and Delaware

Growing frustration with drug-related crimes have prompted several state legislators to introduce bills with harsh punishments. One such bill recently introduced in the Texas legislature, would have punished convicted drug dealers by cutting off their fingers, one finger for each conviction. A bill recently introduced in the Deleware legislature would have required felony drug offenders to receive "no fewer than five no more than 40 lashes well laid" on a bare back.

Weems v. United States (United States Supreme Court, 1910)

Weems was convicted of the crime of falsifying public records in the Phillipine Islands and sentenced to twelve years and one day in prison, a "remedy" which was mandated by Phillipine statute and which carried with it certain "other" conditions. The punishment known as cadena temporal required not only that the offender be confined for twelve years and one day but that he be chained at the ankle and wrist, that he perform "hard and painful labor," and that he lose all "marital and parental rights" throughout the period of his confinement. After his release, he would be under surveillance for the rest of his life and he would not be allowed to move without giving notice or receiving permission in writing. Weems argued that the imposition of the punishment known as cadena temporal was cruel and unusual and violated the Eighth Amendment prohibiting the imposition of a sentence that is grossly disproportionate to the severity of the crime.

Goldschmitt v. Florida (District Court of Appeal, Florida, 2nd District, 1986)

Arthur Goldschmitt was convicted of driving under the influence of alcohol. The trial court placed Goldschmitt on probation (releasing him into the community under the supervision of a court officer) on the grounds that he comply with a condition: that he place on his car a bumper sticker reading "Convicted while DRIVING UNDER THE INFLUENCE: Restricted License." Goldschmitt objected to this puishment on several grounds. First, that first time offenders who are convicted of driving under the influence of alcohol are traditionally put on probation to ensure their compliance with a provision that they perform fifty hours of community service. This provision for first time offenders was created by the legislature, but requiring him to affix a bumper sticker to his car is a special condition invented by the judiciary. Second, he argued that requiring the bumper sticker "forced" him to broadcast "an ideological message" and so violated his First Amendment rights. Third, he argued that the bumper sticker amounted to cruel and unusual punishment and so violated the Eighth Amendment.

Coker v. Georgia (United States Supreme Court, 1977)

While serving time in prison for murder and other violent crimes, Erlich Coker escaped from a Georgia prison and committed armed robbery and several other offenses. During the robbery he raped a woman after tying and gagging her husband. Before making his getaway in their car, taking the woman with him, he "brandished the kitchen knife he was carrying and warned the husband that "if he would get pulled over or the police was following him . . . he would kill [his] wife. He said he didn't have nothing to lose - that he was in prison for the rest of his life anyway." Coker was convicted of armed robbery and sentenced to death on the rape charge, when the jury found that two of the "aggravating circumstances" necessary for imposing the death penalty under Georgia law were present in Coker's case, i. e., that the rape was committed (1) by someone who had been found guilty of a prior capital offense (murder) and that the rape was committed (2) in the course of committing another capital felony (armed robbery). The Supreme Court overturned Coker's conviction, arguing that death as a punishment for rape is grossly disproportionate and so violates the Eighth Amendment.

Rummel v. Estelle (United States Supreme Court, 1980)

William James Rummel was convicted in 1964 of fraudulent use of a credit card, in 1969 of forging a check, and then in 1973 of obtaining money by false pretenses. The sums involved were $80, $28.36, and $120.75 respectively. Texas has a "recidivist" rule or "three-time-loser" rule which directs that a criminal convicted of a third felony be sentenced to life imprisonment. After Rummel was arrested and charged with the third offense in 1973, the prosecution elected to move against Rummel under the Texas "recidivist" rule. A jury found him guilty and he was sentenced to life imprisonment. In 1976 Rummel sought to have the decision overturned, arguing that his penalty was "grossly disproportionate" to the felonies he committed and that a sentence of life imprisonment violated the ban on cruel and unusual punishment of the Eighth Amendment.



Beginning to think constitutionally:
Is the death penalty unconstitutional?

In thinking about the constitutionality of the death penalty, three amendments have caught the attention of justices: the Fifth, the Eighth, and the Fourteenth. They read as follows:


No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment of indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.


All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws. . . . In thinking about the constitutionality of the death penalty, some arguments are more peripheral, some strike at the core of the arguments for or against the death penalty? Which arguments are peripheral? which strike at the core? The cost of executions, the arbitrary selection of defendants for capital punishment, discrimination against minorities, the extent of public opinion, the possibility of mistake, sentencing an innocent victim to death, etc?

The Death Penalty and Homicide Rates: Region by Region;

Nearly all the executions that have been carried out in the U. S. since 1976 have been in states in the South. This is unrelated to the homicide rates. In 1984 63% of those held under sentences of death were in the South compared to only 4% in the Northeast, a disparity which also bore little relation to the homicide rates in the two regions. By 1983 Pennsylvania had 33 prisoners on death row and had executed no one; whereas Georgia had 102 on death row and had executed six.

Prosecutors and the death penalty:

Decision to seek the death penalty is largely determined by the decision of the local prosecutors who have considerable discretion whether or not to ask for the death penalty. Their decisions are often influenced by factors unrelated to the crime, such as the financial resources available to the district, community sentiment about the death penalty, the level of publicity given to the crime, and community pressure in a given case.

Plea bargaining and the death penalty:

Many capital crimes go uncharged because of the plea bargaining of prosecutors in which a guilty plea is negotiated in exchange for a lesser charge.

Discrimination and the death penalty:

Between January of 1976 and 1986 53 of the 58 prisoners who were executed in the U. S. were convicted of killing whites, even though the homicide rates for blacks and whites are about equal throughout the country. Research in Texas, Florida, and Georgia indicate that homicides involving black victims are far more likely to be tried as capital offenses and lead to the imposition of a death sentence than those cases involving black victims. But what might these statistics have to say about a particular case? Would it not be necessary to prove discrimination in each particular case? What difference do these statistics make?

Representation of the indigent and poor:

Given the complexity of death penalty appeals, there is far greater room for error in the handling of such cases. This is especially true of habeas corpus appeals which often focus on constitutional issues for which a volunteer lawyer is usually ill-prepared.

Lengthy delay and undue suffering:

The long waiting period during the course of the appeal of a death penalty case can induce intense suffering in the prisoner awaiting the outcome. Conditions on death row are often worse than in the rest of a prison. Prisoners are often confined in small, poorly equipped cells for prolonged periods of time with little opportunity to associate with other inmates or have access to educational or rehabilitative programs.

Just retribution and the death penalty:

If a punishment must "fit" the crime, does this require retention of the death penalty? What does "the punishment must 'fit' the crime" require? that the punishment exactly reproduce the crime? that rapists be raped and arsonists have their homes burned to the ground?

Death penalty and deterrence:

In some U. S. states the homicide rate has increased since the imposition of the death penalty.

Surrender to Public Opinion:

Public opinion polls continue to show that a majority of Americans are in favor of the death penalty. The abolition of the death penalty has, however, always occurred in the face of public opposition.

Restitution and the death penalty:

Lengthy procedures and uncertain outcomes often prolong the anguish suffered by the victim's family. Indeed executions often draw the attention away from the victim to the prisoner on death row, thereby increasing the victim's family's feelings of abandonment by the system.

The finality of the death penalty:

All criminal cases are subject to "error," - to the possibility that the innocent will be convicted. There are two kinds of innocence here: (1) those who are completely innocent of any wrongdoing and those who merit conviction for something (i.e. manslaughter) who do not merit conviction for something else (i.e. murder in the first degree). The "error" is greater depending upon the gravity of the harm suffered by the innocent. It is therefore reasonable to require higher standards of review for death penalty cases. If these standards cannot be adequately met, should the penalty be abolished?

Compensating an "innocent" victim:

It is possible to imagine compensation for the loss of property or income. The loss of one's liberty is less obviously compensated, but the possibility remains open. But what would it be like to be adequately compensated for being radically mutilated or tortured? Attacks upon one's dignity as a person are in some sense "beyond price."

Post-Furman response;

The number of people sentenced to death has increased substantially to a rate of over 200 a year, but the percentage executed has been reduced to less than 2 per cent of the death row population.

Death and the development of a moral character:

A human life is the opportunity to develop a moral character in such a way that one might be able to speak of one's life in a coherent, meaningful, even admirable way. The development of a morally coherent personality is the most crucial project of a human life. To block such a project is the gravest harm a human being can suffer. Given the exceptional moral gravity of having one's prospects for a morally significant life interrupted, should the community be denied the right to impose the death penalty?

Retribution and Severity:

Severity of punishment need not fit the crime in the sense of being "like" it, only sufficiently grave. The more serious the crime the more serious the punishment. So a certain number of "years" for a rapist, etc. and an even graver punishment for murderers. Is the death penalty required by the need to come up with a punishment sufficiently serious to top, as it were, the seriousness of the punishments for lesser crimes?

Lethal Injectionl

Is lethal injection an alternative way of carrying out the death penalty or merely a way to sanitize the death penalty, side-stepping the larger issue: whether the state should have the right to take the life of a human being. In Chaney v. Heckler eight prison inmates under the sentence of death in Texas and Oklahoma petitioned the FDA to "take action against the unapproved use of drugs in the state capital punishment systems." Lethal injection often requires the involvement of a physician. The AMA has adopted the position that physicians should not take part in executions in large part because "a physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not terminate life." Administering a lethal dose may make it difficult to control the time of death. Administering the dose the night before, for instance, may lead to pre-mature death thereby turning the hangman into a murderer. In 1973 Ronald Reagan gave his support to lethal injection: "Being a former farmer and horse raiser, I know what it's like to try to eliminate an injured horse by shooting him. Now you call the vet and the vet gives it a shot and the horse goes to sleep - that's it. I myself have wondered if maybe this isn't part of our problem with capital punishment, if maybe we should review and see if there aren't even more humane methods now - the simple shot or tranquilizer."

The death penalty and felony murder:

Until recently the death penalty was imposed equally on accomplices in a felony-murder. In Edmund v. Florida (1982) the Supreme Court argued that states were prohibited from sentencing to death accomplices without showing that they actually did the killing or attempted to do it, or were "in" on the planning.

Coker and Eberhart:

In Coker (1977) the death penalty was ruled as cruel and unusual for rape and in Eberhart (1977) the Supreme Court ruled that it was disproportionate for the crime of kidnapping.

Mandatory death sentences:

In Woodson v. North Carolina and Roberts v. Louisiana, both in 1976 the Supreme Court ruled that mandatory death sentences were unconstitutional. In Roberts it so ruled even in cases where the death penalty was restricted to specific crimes (murder of a police-officer acting in the course of his duty), arguing that the court must consider mitigating circumstances. In Lockett v. Ohio the court struck down an Ohio statute that required that a death penalty be imposed unless one of three mitigating circumstances were present, ruling that any circumstances be considered as mitigating.



Definition of a Victin:

The term victim will be used to refer to either the actual crime victim, or in the case of homicide, to surviving family members.

The Victims' Rights Constitutional Amendment

If such an Amendment passes, it would provide federal constitutional rights to victims of violent crime or their representatives. Although the term is not defined, representatives presumably would include surviving family members. Many state constitutional amendments or statutes provide rights to family members of homicide victims. See Ariz.Const., art. II, 2.1(C); Colo. Const., art. II, 16a; Fla. Const., art. I, 16(b); N.J. Const., art. I, 22; Okla. Const., art. II, 34(A); Or. Const., art. I, 42(5).

Victims' Rights and the current Constitution:

The U.S. Constitution does not guarantee rights to victims of violent crime. No such guarantee was drafted by the framers in 1787 nor has any such guarantee been added as an amendment for the more than two centuries of the country's existence; although this latter remark may soon be subject to correction.

The Victims rights Movement

Beginning in the 1960s amidst concerns over domestic violence, child abuse, and sexual assault and with the formation of such organizations as Mothers Against Drunk Driving and Parents of Murdered Children, there has been an increased interest in victim's rights. At first the movement sought compensation for victims of violent crime; now it aims at improving the role of the victim in the judicial process.

Victims' Rights and State Constitutions.

Today more than 29 states have amended their constitutions to include a Victim's Bill of Rights. And in July of 1998 Senate Joint Resolution 44, enumerating the rights to be reflected in a new Amendment to the U.S. Constitution, was sent to the full Senate. Two years earlier President Clinton announced his support for an amendment, thereby "signing on" to a Victim's Rights Movement that has been gaining momentum for the last three decades. Already in 1982 Congress was prompted to establish an Office of Victims of Crime in the Justice Department as well as to propose that a clause be added to the Sixth Amendment that guaranteed victims "the right to be present and to be heard at all critical stages of judicial proceedings."

A Brief History of the Victim's Rights Movement:

The Victim's Rights Movement surfaced during a period in which liberal theories of crime prevention that focused on rehabilitation, open-ended sentencing, and the constitutional rights of the accused began to be replaced by a punitive approach that focused on harsher sentences, fewer chances of parole and an increased use of the death penalty. This shift from the preventative approaches of the 1950s and 1960s to the "tough" talk on crime today has helped to fuel the Victim's Rights Movement. Indeed the rise of the movement was sparked by the widespread perception that the criminal justice system placed too heavy an emphasis on defendant's rights. "How is it," many victims of violent crime wondered, "that a defendant has the right to parade any number of witnesses ready to testify to the defendant's good character without an equal opportunity given to a victim's relatives and friends to introduce testimony regarding the victim's worth and impact of his or her loss on loved ones and the community?"

Getting "Tough" on Crime.

It is not without irony that "tough" talk on crime has escalated as rates of reported crime are coming down. Indeed, crime rates have been falling since 1973. Still American fear of violent crime has remained steady throughout this period. One out of every four Americans has installed security systems in their homes and one out of five has purchased a weapon for self-protection. One hundred thousand students carry guns to school every day and 160,000 miss class because they are afraid of physical harm. "Of course," as Orlando Patterson recently commented in an Op-Ed column in The New York Times, "our liberties have to be protected from criminals among us. But there are two complementary ways of going about this: we can take preventative measures. . .to reduce the incidence of crime before it happens, and we can punish those who do commit crimes, giving the police and courts strong powers of enforcement and incarceration." The latter approach now dominates the rhetoric of the leading Presidential candidates.

"Mourning Becomes Electric":

One reason that proponents of victim's rights have sought a greater voice for victims in the criminal process has been motivated by a desire to help victims and their relatives regain a sense of control over their lives or, to achieve "closure." But there is often another motivation that accompanies the desire for healing-that is a desire to ensure that the perpetrator receive a harsh sentence. In capital cases, the effect of a relative's testimony may be life or death for the defendant. In this light prosecutors have welcomed such testimony since it helps juries identify more personally with the victim and hence be more willing to impose a sentence of death. The question then becomes whether the needs and interests of crime victims can be accommodated during the sentencing phase of death penalty cases without-at the same time-infringing upon the rights of a defendant, in particular a defendant's right to a fair trial. Indeed the psychological and emotional nature of victim testimony raises the question: Does the admissibility of victim impact evidence during the sentencing phase of capital trials bring justice or revenge?

The Text of the proposed Constitutional Amendment
(See S. J. Res. 3, 106th Cong as amended on October 4, 1999)

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid for all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of submission by Congress: Article Section 1. A victim of a crime of violence, as these terms may be defined by law, shall have the rights: to reasonable notice of, and not to be excluded from, any public proceedings relating to the crime; to be heard, if present, and to submit a statement at all public proceedings to determine a conditional release from custody, an acceptance of a negotiated plea, or a sentence; to the foregoing rights at a parole proceeding that is not public, to the extent those rights are afforded to the convicted offender; to reasonable notice of and an opportunity to submit a statement concerning any proposed pardon or commutation of a sentence; to reasonable notice of a release or escape from custody relating to the crime; to consideration of the interest of the victim that any trial be free from unreasonable delay; to an order of restitution from the convicted offender; to consideration for the safety of the victim in determining any conditional release from custody relating to the crime; and to reasonable notice of the rights established by this article. Section 2. Only the victim or the victim's representative shall have standing to assert the rights established by this article. Nothing in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling except with respect to conditional release or restitution or to provide rights guaranteed by this article in future proceedings, without staying or continuing a trial. Nothing in this article shall give rise to or authorize the creation of a claim for damages against the United States, a State, a political subdivision, or a public official. Section 3. The Congress shall have the power to enforce this article by appropriate legislation. Exceptions to the rights established by this article may be created only when necessary to achieve a compelling interest. Secth day after the ratification of this article. The right to an order of restitution established by this article shall not apply to crimes committed before the effective date of this article. Section 5. The rights and immunities established by this article shall apply in Federal and State proceedings, including military proceedings to the extent that Congress may provide by law, juvenile justice proceedings, and proceedings in the District of Columbia and any commonwealth, territory, or possession of the United States.

Differences in Wording in House and Senate Versions:

The current version of H.J. Res. 64 is different from S.J. Res. 3 in two respects: Section 1 of H.J. Res. 64 grants rights to a victim of a crime "for which the defendant can be imprisoned for a period longer than one year or any other crime that involves violence." This would include all felonies, both crimes of violence and property crimes, and misdemeanor crimes of violence. S.J. Res. 3 applies only to crimes of violence. Also, S.J. Res. 3 was revised in the committee process to include an amendment providing rights to victims "to reasonable notice of and an opportunity to submit a statement concerning any proposed pardon or commutation of sentence." This right is not included in the House version.



Three Scenarios

(1) Alice comes home from work and discovers that John has left her. She drinks a few beers, loads John's shotgun, the one he used to use to go duck hunting, steps out onto the back porch, and fires the gun over and over again until she feels (a bit) less angry. She does damage to a bunch of trees, but nothing else.

(2) John comes home from work and discovers that Alice has left him. He drinks a few beers, loads his shotgun, the one he usually takes with him to go duck-hunting, steps out onto the back porch, and fires several rounds until his tears stop flowing. The following day, the body of a homeless man, call him Henry, is discovered at the base of a tree into which John has fired his shotgun. His shooting spree has damaged a bunch of trees and killed someone.

(3) The facts are the same as in scenario (2), but instead o f Henry, John has killed Rabbi Ben Ezra Gold, an amateur entomologist who was searching for a rare beetle in the wooded area behind John's house.

A central problem in the theory of punishment is to explain why we distinguish between scenarios (1) and (2). Why do we punish John more severely than we punish Alice? There is a sense in which both Alice's and John's actions were the same, even though the consequences were different. Both behaved recklessly and neither intended to kill another human being. The penal codes of most states, however, would permit John to be prosecuted for manslaughter and Alice to be charged at most with reckless conduct. Despite conventional wisdom that John "did" much the same thing as Alice, he (John) will face a much more serious punishment. Is this reasonable and/or fair? Make a case for or against punishing John more severely than Alice, think of several objections to your argument, and respond to them. In the course of making your argument, bring to light the theory of punishment that best explains your position.

Now armed with your argument for or against punishing John more severely than Alice, do you think it is also appropriate to draw a distinction by focusing on the identity of the person John has inadvertently killed; that is, does the tenability of the distinction between scenarios (1) and (2) also support a distinction between scenarios (2) and (3)?

Should the John of scenario (3) be punished more severely than the John of scenario (2)? If so, why? If not, why not? In the course of making your argument, bring explicitly to light the extent to which your position is based on a particular theory and/or view of punishment.

The Fourth Scenario

(4) John and Alice have been happily married for many years when they are brutally murdered by Henry. Henry is tried and found guilty of murder. During the sentencing phase of Henry's trial in which the court will determine whether or not Henry should receive the death penalty, the prosecution plans to introduce the statement they took from John's and Alice's children, their son-in-law and grand-daughter. The statement, called the Victim Impact Statement or "VIS," describes the son's horror at finding his parents murdered, the daughter and son-in-law's lasting depression, as well as the daughter's inability to eat, as well as the pall cast over the grand-daughter's wedding, which had been scheduled for the weekend following the murder and which, under Jewish law, proceeded in spite of the murder. In their statement the children also talk about the charitable work both their parents did throughout their lives as well as the loss the community as a whole will suffer as a result of their murder.

If you were the Judge in this case, would you permit the prosecution to read the Victim Impact Statement to the jury during the sentencing phase of the trial? Henry's attorney argues that to permit the admission of victim impact evidence during the sentencing phase of a capital trial would violate the Eighth Amendment and his client's constitutional rights.

The Eighth Amendment, Henry's attorney argues, demands "a reasoned moral response to the crime" that his client has committed and the VIS is irrelevant to that end. The prosecution argues that just as the amount of harm one causes bears on the extent of one's "personal" responsibility, the VIS in this case bears on the magnitude of harm that Henry has caused and so ought to be admissible. The prosecution also insists that "it would be an affront to all civilized members of the community to say that at sentencing in a capital case, a parade of witnesses may praise the background, character, and good deeds of the Defendant without limitation or relevancy, yet not allow anything to be said that bears on the character of, or harm visited upon, the victims."

What do you think?

Do you allow the Victim Impact Statement to be read to the jury?



BOOTH v. MARYLAND ((1987) Dissent:

The Court holds that because death is a "`punishment different from all other sanctions,'" ante, at 509, n. 12 (quoting Woodson v. North Carolina, 428 U.S. 280, 303 -304 (1976) (plurality opinion of Stewart, POWELL, and STEVENS, JJ.)), considerations not relevant to "the defendant's `personal responsibility and moral guilt'" cannot be taken into account in deciding whether a defendant who is eligible for the death penalty should receive it, ante, at 502 (quoting Enmund v. Florida, 458 U.S. 782, 801 (1982)). It seems to me, however - and, I think, to most of mankind - that the amount of harm one causes does bear upon the extent of his "personal responsibility." We may take away the license of a driver who goes 60 miles an hour on a residential street; but we will put him in jail for manslaughter if, though his moral guilt is no greater, he is unlucky enough to kill someone during the escapade.

Nor, despite what the Court says today, do we depart from this principle where capital punishment is concerned. The Court's opinion does not explain why a defendant's eligibility for the death sentence can (and always does) turn upon considerations not relevant to his moral guilt. If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both cases is identical, but his responsibility in the former is greater. Less than two months ago, we held that two brothers who planned and assisted in their father's escape from prison could be sentenced to death because in the course of the escape their father and an accomplice murdered a married couple and two children. Tison v. Arizona, 481 U.S. 137 (1987). Had their father allowed the victims to live, the brothers could not be put to death; but because he decided to kill, the brothers may. [482 U.S. 496, 520] The difference between life and death for these two defendants was thus a matter "wholly unrelated to the[ir] blameworthiness." Ante, at 504. But it was related to their personal responsibility, i. e., to the degree of harm that they had caused. In sum, the principle upon which the Court's opinion rests - that the imposition of capital punishment is to be determined solely on the basis of moral guilt - does not exist, neither in the text of the Constitution, nor in the historic practices of our society, nor even in the opinions of this Court.

Recent years have seen an outpouring of popular concern for what has come to be known as "victims' rights" - a phrase that describes what its proponents feel is the failure of courts of justice to take into account in their sentencing decisions not only the factors mitigating the defendant's moral guilt, but also the amount of harm he has caused to innocent members of society. Many citizens have found one-sided and hence unjust the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human experience that drove the defendant to commit his crime, with no one to lay before the sentencing authority the full reality of human suffering the defendant has produced - which (and not moral guilt alone) is one of the reasons society deems his act worthy of the prescribed penalty. Perhaps these sentiments do not sufficiently temper justice with mercy, but that is a question to be decided through the democratic processes of a free people, and not by the decrees of this Court. There is nothing in the Constitution that dictates the answer, no more in the field of capital punishment than elsewhere.

To require, as we have, that all mitigating factors which render capital punishment a harsh penalty in the particular case be placed before the sentencing authority, while simultaneously requiring, as we do today, that evidence of much of the human suffering the defendant has inflicted be suppressed, is in effect to prescribe a debate on the appropriateness of the capital penalty with one side muted. If that penalty [482 U.S. 496, 521] is constitutional, as we have repeatedly said it is, it seems to me not remotely unconstitutional to permit both the pros and the cons in the particular case to be heard. [482 U.S. 496, 522]

Prepared: March 19, 2002 - 5:02:29 PM
Edited and Updated, March 22, 2002

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