Organization: Computer Science Department,  Stanford University.
Newsgroups: bit.listserv.politics
Date:         Tue, 29 Dec 1992 11:49:04 -0800
From:         Andy Freeman <andy@SAIL.STANFORD.EDU>
Subject: Re: Penal Goals

>>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.

Is this Jamie's goal, or just the goal he thinks that legislators
may have had?  (As I remember, Jamie likes hate-crime enhancements.)

>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.")

"Heinous" = "hatefully or shockingly evil, abominable" according to my
Funk and Wagnalls.  (That's an archaic generic term for reference
collection for you young'ns.)

What are we doing by punishing heinous crimes more severely other than
satisfying a thirst for revenge?  (I note that capital punishment
isn't the hate-crime sentence enhancement under discussion, so maybe
there isn't a problem here.)

>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.

Hmm.  So maybe we need a supporter to tell us why they're good.  Jamie
doesn't seem all that interested in doing so.

>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.

Given Jamie's model, it matters because worrying about some costs and
benefits does not imply worrying about the relevant costs and
benefits.  The criminally negligent may well be worrying about some
costs and benefits - how about some evidence showing that they're
worrying about the death costs and benefits?  (We're discussing
criminally negligent homicide vs unpremeditate homicide.  I'm not sure
whether or not Jamie is defending some current sentencing scheme or
not.  I'm merely pointing out that we need some evidence to make a
determination.)

>>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.

Jamie is taking an "originalist" position here.  The court moved
beyond that limited role a while ago.  I think that move was a
mistake, but I'm not all that sympathetic when it bites people who
like to see the genie get out of that bottle when it suits their
purposes.

>>Why should we worry about crimes committed by purple cows?
>
>I give up. Why should we?

I don't think we should - that's why I don't use purple cow examples
like "crime of passion".  (Reminder: "crime of passion" suggests that
an ordinary person suddenly snapped and commits a severe crime of
violence.  It turns out that that doesn't happen, at least in the US.
The only people who "get mad and kill" have a history of previous
violent activity.  Ordinary people, who don't have that history, don't
commit serious violence when they get mad.  Lots of things are
possible, but only a few happen often enough to worry about.)  That's
why ask the question of people who do.  I keep expecting them to know
why.

-andy
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Newsgroups: bit.listserv.politics