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August 20, 2008

"Desert and the Eighth Amendment"

The title of this post is the title of this new paper from Professor Youngjae Lee available via SSRN. Here is the abstract:

What would a constitutional right based on desert look like? If "the people" believe that, say, child rapists should receive the death penalty, on what basis can one make an Eighth Amendment argument that says that "the people" got the desert question wrong?  In order to answer this question, this Essay addresses a set of related questions, one step removed: What should be the significance of ordinary intuitions about what people deserve when criminal law scholars theorize about what people deserve?  If a popular belief about a question of desert does not match up with conclusions arrived at through theorizing and reflections about desert, who should revise their views — the people or the theorists? 

The answer, I suggest in this Essay, is twofold.  First, statements about desert that fail to capture the core of ordinary moral intuitions cannot be ultimately successful.  Second, it is a mistake to believe that answers to questions about desert can be simply read off public opinion surveys or inferred from laws passed by legislatures.  The role of theories about desert is to take various particular convictions held by people about what people deserve and test them against broad principles, while warning against various sources of confusion and excess that frequently infect desert judgments, such as prejudice and vindictiveness. The relationship between desert theories and popular sentiments is thus quite complex, and we must be suspicious of simple assertions either in favor of dismissing theories as irrelevant or in favor of disregarding popular sentiments as base or irrational.

August 20, 2008 at 05:42 PM | Permalink


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Its all a sham. The system is a joke. With Heller ushering in more gun laws and Cunningham
being totaly ignored by the California courts , it matters not what the constitution says. After 4 years of fighting for my rights Ive concluded without question, our legal system is a joke.

Posted by: rcon1 | Aug 21, 2008 1:19:08 AM

either it is "the desert" or it's "dessert"...which?

Posted by: FluffyRoss | Aug 21, 2008 8:30:44 AM

I too read this and thought we were talking about a misspelled constitutional right to cheesecake. It's an awkward word to use, especially in this context. But the fact that it has one s instead of two is a good clue that one should grab a dictionary, because a constitutional right to barren, dry land doesn't make any more sense.

desert (plural deserts)

(usually in plural) That which is considered to be deserved or merited; a just punishment or reward.

"He'll get his just deserts."

We usually talk about proportionality and the 8th amendment, here the article focuses on what is deserved. Though how one determines an objective "desert" for a particular crime is a mystery to me. There's no normative way to determine punishment for a particular crime. Certainly we'd like to do that, if we could. Of course, victims and their victim's rights movement would get in the way and sabotage it... beacuse what society determines is "just deserts" is far different than what a victim feels is "just deserts."

Posted by: bruce | Aug 21, 2008 8:52:50 AM

"and Cunningham being totaly ignored by the California courts"

No, Cunningham isn't being ignored. The California Legislature and Supreme Court put in a fix pretty much the same as SCOTUS did with the federal system.

Bruce, would you like to give us an example of the victim's rights movement sabotaging what society feels is just deserts? I am unaware of any such effort, but rather just the opposite.

Posted by: Kent Scheidegger | Aug 21, 2008 11:03:29 AM

The difficulty here is that you lawyers haven’t figured out the architecture of crimes and offenses.

“Crime” and “penalty” are reasoned concepts. People are penalized for committing crimes. Penalties are fixed before the fact and enforced after the fact. Crimes are simply gizmos or administrative devices that are used to facilitate the process; i.e., access offenses, forestall offenses, validate offenses and prime the State’s analysis of the problem.

“Offense” and “punishment” are intuitive concepts. Retribution or “desert” are intuitive strategies that are used to get even, or hold offenders accountable. Intuitive concepts cannot be defined. That’s why crimes are needed to facilitate the process. Punishments are fixed after the fact within a range that is established before the fact, when the problem is still not fully knowable.

Decisions are much better when we think about problems in more than one way; i.e., certain instances of conduct are both a crime and an offense. Each trigger different trains of thought. Of course, typical sentencing guideline systems over-generalize, mixing apples and oranges, thereby obfuscating the problem.

These issues will never get straightened out until the courts deconstruct the process, recognizing that “crime” and “offense” are different ways of thinking about the same problem, which is an instance of social disorder.

Posted by: Tom McGee | Aug 21, 2008 2:04:38 PM

Kent: Sure. MADD having it's members sit at DWI trials and write down the names of judges who are lenient on DWI defendants, to file complaints on and publish their names as "soft on crime" judges and oppose in their next elections. Thus, judges are aware that MADD is doing this, especially when the MADD member is known to be sitting in the court wearing a big "MADD" button. As such, defendants are more likely to be sentenced to jail terms than probation. But that's a micro-level example. At the macro stage, fighting for the right to give big empassioned speeches at a defendant's sentencing hearing, but before the sentence is handed down so as to be able to influence the judge, is a horrible example of injustice, and insofar as it works, it causes lenthier sentences. Society is supposed to neutrally and unemotionally punish crime. Crimes are crimes because it's a given the victim is upset about it. That the victim wants his/her tormentor to receive the maximum sentence is and should be a given at any sentencing. As such, victim impact statements are duplicitious and add nothing to the process other than a forum for psychological release.

My point is that whatever a defendant truly, objectively "deserves" and however one would go about that calculus, getting the victim's opinion and "impact statement" is completely irrelevant.

Victims also influence sentencing guidelines and penal laws regarding punishment ranges. It baffles me how people don't see the conflict of interest. It's easy to understand how pharmaceutical companies should not be involved in setting the FDA review process for new drugs. Why is it so hard to see why crime victims should not be involved in setting the punishments for those who have harmed them? The conflict of interest is exactly the same. Sure, anyone can write a letter to a lawmaker, but interested parties should have no formal say in the lawmaking process. Habitual drunkards and alcoholics should not be setting statutory punishment ranges for DWI anymore than victims of drunk driving should. Both of their opinions are completely irrelevant due to bias and should be wholly disregarded.

Posted by: bruce | Aug 21, 2008 2:15:55 PM

"At the macro stage, fighting for the right to give big empassioned speeches at a defendant's sentencing hearing, but before the sentence is handed down so as to be able to influence the judge, is a horrible example of injustice, and insofar as it works, it causes lenthier sentences. Society is supposed to neutrally and unemotionally punish crime."

It wasn't our side that brought emotionality into sentencing. Defense lawyers were spinning impassioned sob stories at sentencing long before we got victim impact statements. In the capital sentencing area, I would gladly trade Payne for Lockett and have sentencing depend solely on what the defendant did and what he has done before.

As for MADD publicizing which judges it thinks are "soft," that only works if society (or at least a majority) agrees with MADD on what constitutes just deserts, so your example contradicts your original point rather than supporting it.

I'm not quite sure what you're getting at with the last paragraph. As far as legislation and sentencing guidelines go, the only influence crime victims have is as citizens expressing their views. Surely you can't be arguing that a person should be disenfranchised or censored simply because he has been a victim of a crime.

Posted by: Kent Scheidegger | Aug 21, 2008 3:44:21 PM

Kent, the DEFENDANT is a party to the case. The prosecutor also gets to spin a story about horrible behavior, reprehensibility, "taking a stand on crime" and "making an example" and "speaking for the community" and "protecting the children" ... that's what advocacy is all about. But the state is also a party to the criminal action. Victims may be witnesses, but they're not parties and their opinion on what the sentence should be is wholly irrelevant. Why can't we just presume that they really, really want the defendant to get the maximum sentence and feel strongly about it?

Society agrees with MADD because MADD can, does, and will continue to say children are harmed and killed by drunk drivers. As long as drunk driving continues (and it will never stop) children will be harmed and killed, and thus we need stronger and tougher laws against DWI. When those don't work, we'll enact even stronger and tougher laws against DWI. And when those don't work, we'll enact even stronger and tougher laws against DWI. Ad infinitum. Our society has become nothing more than a huge plebiscite centered on protecting children. Listen to what people say, read the titles of statutes - children this, children that. Everyone tries to invoke protecting children for their agenda. But drunks cannot argue that drunk driving is good for children (at least not without being mocked), so society will always agree with those on the opposite side, like MADD. And it's more than just DWI, it's about "soft on crime judges" - people are constantly scared of crime, even though chances are they've never even been affected by crime and violent crime rates are at an all-time low. This fear enables politicians to pander about being "tough on crime" and "protecting the children" from criminals (after all, there is nothing the criminals want to do more than snatch and rape your children, because your children are so beautiful and desireable the criminal element just cannot help itself). Who could be against protecting children? Well, other than me.

Like I said, anyone can write a letter to their congressman. But interested parties (which includes crime victims vis a vis penal/sentencing laws) should not be given formal opportunities to directly influence legislation, such as addressing or testifying before a legislature. But that's a different topic and really goes more towards legislative corruption. Letting huge corporations write our tax laws, letting drug companies write pharmaceutical regulation, letting Mansanto write our laws regarding genetically modified foods... and letting crime victims write our sentencing and penal statutes are all about corruption and influence peddling. But anyone can write a letter. Anyone can submit a comment letter pursuant to the APA.

Posted by: bruce | Aug 21, 2008 5:35:56 PM

I must admit that I erred. In my previous comment I wrote, "Surely [Bruce] can't be arguing that a person should be disenfranchised or censored simply because he has been a victim of a crime."

Yes, he really is arguing that victims be censored, at least to the point of banning them as witnesses in legislative hearings.

Amazing that anyone could think that way.

Posted by: Kent Scheidegger | Aug 21, 2008 5:51:48 PM

Kent and I don't often see eye to eye but here we do. The notion that justice is supposed to be "dispassionate" I reject out of hand; it's a denial of what it means to be human. Bruce is just spewing nonsense here. Negative emotions (revenge, vengeance) or emotions which are disproportionate to the crime can be criticized. But I have no interest in a legal system run by clerks and I have even less interest in one being run by robots.

Posted by: Daniel | Aug 21, 2008 6:05:35 PM

Legislation should be the product of reasoned and intelligent debate, not advocacy and appeals to emotion. That's to be saved for the application of enacted legislation. Having interested parties whine and yell and threaten the untimely deaths of your children if the law is not passed does no service to democracy nor does it improve the quality of our laws. Quite the opposite, in fact.

Do you think drunks and alcoholics should be allowed to testify before the legislature about what appropriate penalties for DWI should be? You'll say "yes" to not conflict with your previous statement, but you know such testimony would be scoffed at and completely disregarded. You'd disregard it if you were on the legislature, seeing it as drunks prone to arrest for drunk driving trying to reduce their sentencing exposure by asking for lesser DWI penalties - because that's exactly what it is. Why should testimony from DWI victims be treated any differently or given any more credence?

If the testimony is worthlessly biased and wholly to be disregarded, it is a waste of time. Again, they can write letters to their representatives. But the legislative process itself should not include such advocacy. Call neutral experts without a vested interest in the law to testify if there's going to be legislative testmimony.

Posted by: bruce | Aug 21, 2008 8:08:40 PM

I live in a state without any dessert. It would seem expensive and tedious to ship some inmates out to California just to punish him/her by incarceration in a hot dry climate rife with poisonous snakes and lizards. Now if you really want to punish them and give them their just deserts they can be lashed to giant cactus with wet leather straps that shrink as the sun comes out in the morning and and ...

Posted by: mpb | Aug 22, 2008 5:14:46 AM

Bruce, I don't have a hobgoblin in my head, don't worry.

Just because you believe that certain testimony should be scoffed at and ignored doesn't mean that other people do or would. You seem to be under the illusion that people who think differently from you or form different judgments based upon the same fact pattern are simply in error. There really isn't anything for me to say to that. I think a more enlightened view is to believe that everyone has something important to contribute, even drunks, and differences in values and judgments just reflect the diversity of the human species, which is a healthy thing.

Posted by: Daniel | Aug 22, 2008 12:48:06 PM

I think a more enlightened view is to believe that everyone has something important to contribute

That sounds enlightened, but it's not. In fact, that summarizes the very problem - what's factually correct and what sounds caring and enlightened are nearly always opposites. Every person has something cogent, intelligent, and thoughtful to add to a debate about legislation? Do you seriously believe that, or are you just saying it to sound enlightened? "Everyone" means the people on the street who don't know who the vice president is. They're the people who don't know where Canada is. They're the people who think Saddam attacked us on 9-11. They're the people who buy $400 sneakers on their credit card while they're children live off of McDonalds and twinkies. These are the people whose ignorance is used as entertainment - Leno, Letterman, et al. go and interview them in public places asking them simple questions and we laugh at their stupid answers... though a large percentage of the people laughing have no idea what the correct answer is either. Most people, as in the majority, not only have nothing to add to any given political discussion. And you say "everyone" has something to contribute. Everyone as in 100% of people... really? I doubt you seriously believe that, but you don't want to take an unpopular point of view, i.e. mine, wherein some people are superior to others and should have their voice heard while other, lesser people should not.

Emotion. Pure emotion. When facts and emotion collide, emotion always wins out. Thus all debates come down to emotional purjury about children being in danger and how to protect them from said danger.

Posted by: bruce | Aug 25, 2008 1:48:18 PM

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