August 13, 2008
Thoughtful opinion focused on bad health as the basis for a below-guideline sentence
A helpful reader sent me a copy of a lengthy and interesting sentencing opinion issued yesterday in US v. Rausch, No. No. 07-cr-00497 (D. Colo. Aug. 12, 2008) (available for download below). The opinion is focused mostly on using severe health problems as the basis for giving a below guideline sentence, but has lots of other post-Booker goodies. Here are a few snippets from a section of the opinion addressing punishment theory:
The retributivist approach, advocated by the prosecution in this case stresses guilt and dessert, looking back to the crime to justify punishment and denying or ignoring that the consequences of punishment have any relevance to its justification. On the other side of the coin, the utilitarian approach taken by defense counsel insists that punishment is justified only if it has beneficent consequences that outweigh the intrinsic evil of inflicting suffering on another human being.
Lord Justice Denning, the great English jurist, has called punishment “the emphatic denunciation by the community of a crime.” In his view, and I see great value in it, punishment reinforces the community’s respect for its legal and moral standards. The restraint on this principle, however, is that punishment is only justifiable when it is deserved. Rausch has admitted guilt and the proof is evident and overwhelming. Even so, the utilitarian assertion is that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order.
While the practice of punishment has been extant throughout the history of human culture, so, too, has been its cautionary curtailment....
In The Letters of Abelard and Heloise, 159 (Michael Clanchy ed., Betty Radice, trans., Penguin Classics 2004), one finds the following: “[F]or there is a well-known saying, ‘The law was not made for the sick.’” (Letter from Abelard to Heloise discussing caring for the sick and giving them all that they require). Further, in Dostoyevsky’s The House of the Dead and Poor Folk, 180 Constance Garnett, trans., (Barns and Noble Classics 2004), we read: “It is useless to punish a sick man.” Id. (explaining the absurd practice of imprisoning sick men and making them wear shackles).
August 13, 2008 at 10:16 AM | Permalink
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The opinion does indeed say "dessert," but I suspect the retributivist prosecutor emphasized desert.
Posted by: Kent Scheidegger | Aug 13, 2008 11:41:04 AM
"Even so, the utilitarian assertion is that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order."
Actually that's more of an anti-utilitarian, specifically Kantian, approach. And the sentencing discussion would have been more compelling absent the pseudo-intellectualism. Much of this sounds like a grad student poseur trying to get laid at a cocktail party.
Posted by: Anon | Aug 13, 2008 2:15:41 PM
I didn't read the opinion but my initial reaction was: what were his Google keywords?
Posted by: Daniel | Aug 13, 2008 3:07:55 PM