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December 7, 2009

What would a fully originalist approach to sentencing entail?

The question in the title of this post is prompted by this interesting new piece available via SSRN by Will Tress titled "Unintended Collateral Consequences: Defining Felony in the Early American Republic."  Here is the abstract:

At common law a felony was a crime that led to forfeiture of the convict’s property. In contemporary American law, a felony is usually defined as a crime that is punished by death, or imprisonment in a specially designated place (prison or penitentiary) or for a designated period of time (more than one year).  The attached article examines how that change came about, and fixes the time and place of the re-definition: New York in 1828, during a revision of that state’s statutes.  The choice made by the revisors, a compromise between radical reform and adherence to the common law tradition, is placed in the context of two early 19th century reform movements: Codification of the common law, and the founding of the penitentiaries.

How felony is defined — creating more or fewer felonies — gains greater importance in light of the current concern over the collateral consequences of a felony conviction. Looking at how the line between felonies and lesser crimes was originally drawn can offer insight as to where it should be drawn today.

December 7, 2009 at 10:12 PM | Permalink


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"...offers insight on where the line should be drawn today."

How about instead saying that the line shouldn't be drawn anywhere, it should be abolished, since the felony/misdemeanor distinction makes no sense in the the modern era of grid sentencing.

We have in NC misdemeanors that carry two years in prison and felonies for which a def cannot receive one day in prison.

To me, the continued use of the felony misdemeanor dichotomy is simply another illustration of the universal truth in criminal law--which is, nothing is ever taken off the table, things are simply added to the table. In other words, except for rare, rare exceptions like when the Kansas legislature repealed its habitual felon act when it adopted grid sentencing, politicians cannot bring themselves to do anything that could be construed as favoring criminals.

bruce cunningham

Posted by: bruce cunningham | Dec 7, 2009 11:27:02 PM

This is an important discovery or news from historical research, in the annals of lawyer rent seeking. They had the penitentiaries with massive public employment. They had to be filled. You could argue that the inmates were on the street and causing massive damages. If the penitentiaries removed a source of damages, they were not rent seeking, but profit seeking. Pay the government to remove a property value destroying nuisance. The tax is a bargain relative to the increase of real estate value after removal. Penitence was the masking ideology.

Posted by: Supremacy Claus | Dec 7, 2009 11:31:08 PM

Crimes should be categorized by the harm done. All crime should be strict liability crime, to avoid the unlawful, church derived proof of intent. Then all sentencing should be based on the person, since incapacitation is the sole useful, mature, and valuable aim of the criminal law. This is the view from the taxpayer and owner of the law. The victims and defendants have other interests, but they can buy their own justice systems to pursue those.

Sentencing could look very different. A murderer could be sent home on probation. A shoplifter could be executed. The simplest way to decide on sentencing is to count the convictions and the reliably assessed conduct of the defendant. So the shoplifter's mother is interviewed. She reports, he is the head of an organized illegal alien gang, and has ordered the execution of many people, and is responsible for the homicide of innocent bystanders by his incompetent bomb placements. These statements are corroborated by detectives.

The shoplifting charge stands in for his 100's of crimes, and is an opportunity for incapacitation. He is not being incapacitated for shoplifting but for his character. The death penalty would no longer be viewed as a punishment nor as a deterrent. It would be viewed as social self-defense and expulsion from our world after wearing out its welcome (damages above $6 million is a good line to draw, from the economist derived market value approach to valuing a human life).

This is a scheme that places a priority on public safety. If it does not work, it should be jettisoned. It may work by attrition.

The judiciary should conduct the guilt phase, in an ordinary trial.

The executive would be responsible for the sentencing and for any public safety harm stemming from setting the defendant loose. The sentencing decisions should be made blinded to the race, gender and other characteristics of the defendant. I don't know whether age should be removed from consideration. Age is second to recidivism as a predictor of future crime. Forget the interview of the defendant. That is a waste of time. The victims of the released criminal should be able to sue the officials and the agency that negligently released him. A standard of professional care could apply here rather than a strict liability approach. Otherwise no one would be released.

Every crime statute should be validated as seeking to prevent a big harm, or repealed. Desuetude should repeal the statute automatically. Legal hoaxing violates the Equal Protection Clause. And the false notice of desuetude is a regulatory taking by forcing legal costs.

The lawyer would remain as an advocate at every stage of this scheme. He could not serve as judge, nor as decision maker in the sentencing phase.

The validation of any scheme whether from 1828 or from 2028, is the drop in crime victimization, the sole mature aim of the criminal law. If a scheme does not work, enhance or replace it every 10 years.

Posted by: Supremacy Claus | Dec 8, 2009 10:02:12 AM

"nothing is ever taken off the table, things are simply added to the table. Thank you Bruce Cunningham. The collateral damages of a felony, especially a federal felony, are forever regardless of the magnitude of the offense. That is why so many support legislation such as H.R.1529 the Second Chance For Ex-Offenders Act of 2009. This legislation, or something very close to it, perhaps post trial intervention, should be passed now. The perception that all felons are the equivalent of Charles Manson is hard to change but allowing this perception to punish someone for a lifetime is just plain wrong.

Posted by: Thomas K | Dec 8, 2009 12:27:02 PM

Thanks for pointing this out, Doc, this was a fascinating article. I reacted to it on Grits.

As for "nothing is ever taken off the table," y'all aren't kidding: We're at 2,383 separate felonies on the books in Texas, up from 34 when Francis Bacon counted, according to Mr. Tress.

Posted by: Gritsforbreakfast | Dec 8, 2009 12:59:05 PM

And don't forget that the House Subcommittee on Crime, etc., etc., held a hearing on Over-Criminalization of Conduct/Over-Federalization of Criminal Law back in July. http://judiciary.house.gov/hearings/hear_090722_2.html
I have mentioned this before if memory serves and the testimony of Kathy Norris and Krista Evertson is most compelling.Talk about collateral damages, these two people are the poster children. Congress knows about the problem,acknowledges that there is a problem, holds hearings, blather and more blather, and does nothing. Business as usual and the punishment continues

Great post at your site Grits.

Completely off subject but would someone please tell me how to insert a link on this site.

Posted by: Thomas K | Dec 8, 2009 10:41:12 PM

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