For each statute, identify whether the harm is also an element, i.e., the result, or whether we must infer the harm. If the latter, please state what that social harm is. Also remember for each, what must the prosecution prove with respect to any harm in each case? 

1. Second degree murder is causing the death of another with malice aforethought.
2. A person is guilty of criminal trespass if he or she enters a dwelling without authorization.
3. Any person who sells a schedule 1 drug within 500 feet of a school is guilty of a B class felony.
4. A person is guilty of second degree assault if he or she intentionally causes serious bodily injury to another. 
5. Theft is the unauthorized taking of another's property with the intent to permantently deprive. 
6. A person is guilty of a misdemeanor if he or she possesses marijuana. 
7. It is an offense to sell alcohol on Sundays.

For some, criminal punishment such as prison or the death penalty are self-evident. If a person commits a crime, by definition the person should receive punishment. For others, particularly recently, the death penalty is never justified, and even prison might be unjustified in all or most cases. And of course many stand somewhere in between.

Different societies throughout history have differed in how to address crime, and even within our own legal tradition, views have varied. In early England, those who committed crimes including murder were neither put to death nor imprisoned but rather, they or their group had to pay a fine. For much of English history, prison was not the usual punishment for crimes; rather, courts sentenced many felons to death and, for others, imposed punishments such as impressment in the navy or transportation to America or Australia.

For much of early English history, and for much of European history, the justification for punishment was often straightforward: God. God guided juries or other decision-makers such as priests in determining a verdict. And juries could rest assured that God essentially imposed the death penalty and not them. That was justification enough.

Retribution and Deterrence

Today, governments justify punishment and its degree by turning to more secular (at least on their face) justifications. These justifications recognize that executing a person or imprisoning them imposes huge costs on the individual, their family, and their community. Overcriminalization and punishment can decimate neighborhoods, removing fathers and mothers, and sometimes increase crime. We must therefore identify concrete reasons and goals for punishment that outweigh these drawbacks.

These contemporary but still traditional justifications fall into two main categories, which can be further subdivided: retribution and deterrence.

Retribution focuses on what the defendant deserves for choosing to commit a crime. It highlights that the person has free will, could choose the lawful path, but chooses the unlawful one instead. In punishing him, the government actually recognizes and values his dignity and autonomy as a human being. If a dog, for example, does something wrong, we might punish her to deter her from doing it again, but we would be less likely, by this theory, to argue the dog deserved punishment because she deliberated and chose the path of evil. Human beings do freely choose to do the wrong thing, knowing it is wrong--the retributivist argues. Put another way, retribution recognizes that the defendant has chosen to break the social contract, his promise to society to follow the law, and his promise to himself to govern himself.

Deterrence, by contrast, focuses on the future: punishing this defendant will deter others from committing crimes, by setting an example. The punishment should be only high enough to deter others. Some studies show that a 12-year prison sentence is the highest that will still add deterrence. By adding years—say, by imposing a 20-year sentence—we will not deter any more crimes than a 12-year sentence would have. If true, a deterrence rationale could not justify the extra 8 years. But note a retribution theory still could.

Retribution and deterrence differ in numerous ways. Retribution looks entirely backward to the moment of the crime and asks what the defendant deserves for choosing to commit that crime. Deterrence looks entirely forward to measure how much punishment is needed to deter others. Retribution is about this defendant. Deterrence is primarily about everyone else. Retribution is sometimes classified as deontological morality because it looks to do the right thing for its own sake. Deterrence falls under utilitarianism or consequentialism because it focuses on which punishment will produce the best future outcomes.

These two major theories fall under the headings of two major philosophers. Retribution is associated with Immanuel Kant, who argued that even if all human beings died except for one person who was convicted of murder, that person should still be executed because he still deserves it. “Deserves” works a double meaning: it is justified to exact pain on the defendant, but also the defendant deserves the reward of punishment because it validates his humanity, his ability to choose. Deterrence is associated with Jeremy Bentham, who once described the idea of natural rights divorced from statutes as “nonsense on stilts.” Kant argued it was wrong to treat a defendant as a means to some other ends (reducing crime through deterrence); rather, each human being must be viewed as an end in themselves. Bentham saw this as too metaphysical or spiritual; punishment only made sense if it made us more safe in the future.

These two theories can be used both to justify punishment at all and to determine the degree of punishment, usually the length of a sentence. The federal sentencing statute, 18 U.S.C. 3553, for example, sets forth retribution and deterrence as factors a judge should consider in determining what sentence to impose. The judge should consider what would be “just punishment”—retribution—and should consider what would “afford adequate deterrence to criminal conduct.”

Later in the course, we will challenge this framework, both whether these theories truly justify punishment and whether they even explain what legislatures and society actually do or want to accomplish when they punishe someone. But retribution and deterrence form such a central part of how judges view their task that we must start with this framework.

The Full List of Justifications

Now deterrence can be further subdivided, and indeed we can rank a number of other justifications as either deterrence or consequentialist more generally. That is, these additional subdivisions seek to improve future outcomes (usually less crime) rather than focus on what the defendant deserves. Thus, what we called “deterrence” now becomes “general deterrence,” followed by other categories that are consequentialist. Retribution, by contrast, cannot itself be subdivided into smaller categories.

When we reclassify, we can make the following list:

1. Retribution
2. General Deterrence
3. Specific Deterrence
4. Incapacitation
5. Rehabilitation
6. Restitution
7. Expressivism
8. Social Control

We have discussed retribution. General deterrence focuses on deterring everyone else other than the defendant. Specific deterrence refers to deterring the defendant in the future. Once he gets out of jail or prison, he won’t offend again because he doesn’t want to go back to jail.

The next several items also further consequentialist aims by improving future outcomes such as safety. Incapacitation reduces crime in society by removing the defendant from society. He cannot harm the public if he is in jail or prison. This puts aside crimes he might commit in prison. Rehabilitation focuses on “fixing” the defendant so he no longer commits crime because we have removed the motivations or enhanced his self-control, just as examples. Restitution imports an aspect of tort law into the criminal system to simply require the defendant to pay the victim compensation for the harm.

The last two, expressivism and social control, stand out as special categories. Expressivism asks the criminal law to express our values as a society. We punish this because we think it particularly bad and want to announce that as a value. Social control  provides the police tools to manage riots, say, or other lawlessness in the moment. But it also includes a more sinister aspect—a desire by the government simply to flex its muscles and show society who is really boss. This may create greater order and safety, or it may create an overly passive and apathetic society.

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

   (1) the nature and circumstances of the offense and the history and characteristics of the defendant;

   (2) the need for the sentence imposed—

      (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

      (B) to afford adequate deterrence to criminal conduct;

      (C) to protect the public from further crimes of the defendant; and

      (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

   (3) the kinds of sentences available;

   (4) the kinds of sentence and the sentencing range established for—

      (A) [the sentencing guidelines]

   (5) any pertinent policy statement [of the Sentencing Commission]

   (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

   (7) the need to provide restitution to any victims of the offense.

Roman Polanski is an acclaimed movie director whose most famous movies include Rosemary’s Baby and Chinatown.  He recently directed Carnage and The Ghost Writer, and The Palace just premiered at the Venice Film Festival. He spent much of his childhood in Poland, where he suffered persecution at the hands of the Nazis.  His mother died in Auschwitz. 

As an adult, he quickly became a successful film director and moved to Los Angeles in 1968.  In 1969, his pregnant wife, Sharon Tate, was gruesomely murdered by the Manson family.   He returned to Europe but eventually returned to Los Angeles, where he made Chinatown in 1974.

In 1977, Polanski was arrested for sexually assaulting a 13-year-old girl at the house of Jack Nicholson.  She testified before the grand jury that she had gone there because Polanski said he would take her photos for French Vogue.  She also testified that Polanski gave her champagne and half a quaalude, and then raped her. 

After his arrest, Polanski agreed to plead guilty to a lesser charge in exchange for a six-month sentence.  After his guilty plea, but before sentence, the judge had improper, ex-parte conversations with a prosecutor who may have coached the judge to back out of the deal.  Everyone seems to agree that the judge committed grave ethical violations--as revealed by recent revelations linked to below.  In any event, Polanski fled to Europe before sentencing where he has remained ever since. 

In the last ten years, the Los Angeles District Attorney’s Office stepped up efforts to have Polanski extradited from Switzerland, but the Swiss rejected that application several years ago. The Los Angeles DA then sought his extradition from Poland; after two years of court fights, Poland’s Supreme Court also rejected the extradition in December 2016. The victim recently said she doesn’t want him extradited.

A recent article by Steve Lopez in the Los Angeles Times provides more background, quotes from the girl’s grand jury testimony, and gives his opinion about what should happen. Please read that article.  Please also read the most recent update here, which contains arguments more favorable to Polanski. You may also read anything else on the web about this case that you think would be helpful.

For class, pretend that the Polish government had extradited Polanski to the U.S. and that he will be sentenced. Think about the arguments that the prosecutor and the defense lawyer would make and try to tie those arguments as closely as you can to the traditional purposes of criminal law set forth in the preceding section. I want to hear you use words like retribution, deterrence, and rehabilitation, and show how those principles apply here. Also, think about what other reasons may justify a longer or shorter sentence, such as a moral statement by society about its values. Do not base your sentence on what California law may have required, then or now—although this can be a consideration.

If you were the judge, what sentence would you impose? You do not need to submit any written work; simply come to class prepared to discuss, impose a sentence, and justify that sentence.