Newsgroups: bit.listserv.politics
Date:         Tue, 29 Dec 1992 10:42:21 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Penal Goals

From:         Andy Freeman <andy@SAIL.STANFORD.EDU>

>No.  My claim is that if we're punishing to reduce the incidence, our
>punishment strategy should reflect that.  If we have other goals, our
>strategy should reflect them.  I'm trying to find out what goal the
>"hate crimes deserve more severe sentences than other intentional
>acts" folks have.

To punish more severely those crimes they think are more heinous.

>I showed that "prevent harm" required some additional evidence.  I
>proposed another, namely "nazis are bad", and suggested that it wasn't
>a good particularly good reason.  It seems reasonable to expect the
>proponents of hate-crime laws to know the good reasons so I'm asking.

I think my suggestion is more plausible. But I don't know what
was in the minds of the various legislators.

>>Suppose the HARDEST people to convince are
>>those who commit violent crimes in the heat of the moment.
>>Such people just don't calculate the costs in advance.

>Why should we worry about crimes committed by purple cows?

I give up. Why should we?

>>But we do not punish criminally negligent homicide more severely
>>than unpremeditated murder, even though the former is likely
>>to involve more calculation, and be more "deterrable" than the
>>latter.

>I like the assumption that degree of calculation implies something
>about deterability.  (Criminally negligent homicide does not imply
>"calculation aimed at death", it implies calculation aimed at
>something ELSE with a marked disregard for whether or not death
>occurs.)  How about some data?

Nope.
But my point was, if the idea is supposed to be that
punishment deters by raising the costs to the criminal
of committing the act, then its not likely to have that
effect if the potential criminal does not worry about
costs and benefits.

I don't see why it matters whether the calculation AIMS
at death or not.

>>In any case, it may well be the case that racially motivated
>>crimes are deterrable by more severe threats. As Andy says,
>>we need more evidence. But on the face of it, gathering
>>evidence and deciding which kinds of deterrence works is
>>a job for state legislatures, not for the Supreme Court.

>And, who decides whether or not said legislators bothered to
>gather said evidence and make such a determination?

(I assume the implied answer is supposed to be, "The Supreme
Court.")
The Court does not have the task of deciding which of the
various state laws passed were poorly thought out, or badly
implemented. It has the task of protecting constitutional
rights.

I suppose I might be sympathetic to a challenge to the
Wisconsin law based on the "cruel and unusual punishment"
clause. Was such a challenge raised?


>My impression was that Jamie was arguing that nothing short of clear
>and convincing evidence for a deterrence effect of capital punishment
>was adequate justification for capital punishment.

Essentially, that's right.
As I see it, a punishment that satisfies a thirst for revenge
but has no other value is cruel and unusual. (I'd settle for
evidence that meets a lower standard than "clear and convincing,"
but I'd insist on a bit more than "seems right to me.")

>While I probably
>pointed out that we don't have that standard for any other punishment,
>which is relevant because most people "killed" by the criminal justice
>system aren't explicitly sentenced to die and we certainly meet the
>"should know that deaths will occur" standard, I tried to emphasize
>that there are other defensible goals and defended them.

>Now I'm asking the proponents of "hate crime" laws to come up to that
>same standard.

The defensible goal (which I am not, actually, defending--I think
it is important that there be a defensible goal even if I would
not want to defend it) at work in the Wisconsin law is, to
punish the more odious crimes more severely.

I have argued that it is a goal like that at work in the
penal distinction among kinds of homicide. That at least
counts, I think, as a prima facie defense of the goal.

Jamie
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU