SOME BASIC ISSUES IN CRIMINAL LAW

i. Rehabilitation:  For similar reasons, retributivists do not think the criminal law should be spending much effort towards rehabilitation of offenders.

C. Types of punishment:  There are three main types of punishments in criminal law: (1) imprisonment; (2) the death penalty; and (3) the imposition of monetary fines. With respect to (1) and (3), the states and federal governments have wide latitude to choose how long a prison sentence, and how great a fine, to impose for any particular crime.

1. “Shaming” punishments:  Courts occasionally impose a fourth type of punishment, by trying to publicly “shame” the defendant, usually by requiring him to make some sort of public apology or confession as a condition of his probation.

a. Courts split:  Appellate courts have been split about whether and when to reverse shaming punishments. By and large, as long as the punishment is reasonably proportional to the offense and not likely to inflict major permanent psychological damage, appellate courts seem mostly to uphold them.

Example: After D is convicted of mail theft, the judge requires him to wear a sign outside a post office saying “I stole mail; this is my punishment.” Held, on appeal, the judge was attempting to rehabilitate D, not humiliate him, so the punishment is lawful under federal sentencing procedures. [U.S. v. Gementera (2004)]

II. CONSTITUTIONAL LIMITS ON PUNISHMENT

A. The U.S. Constitution generally:  The U.S. Constitution imposes important limits on punishments that may be imposed by federal and state legislatures.

1. Bill of Rights:  The Bill of Rights (the first 10 amendments to the Constitution) imposes several limits on the criminal process. By its terms, the Bill of Rights applies only to the federal government, not the states (but see below for how the Bill of Rights affects the states). Some of the more important Bill of Rights guarantees that limit what conduct may be criminalized, or limit how that conduct can be prosecuted, are these:

• The First Amendment orders Congress to “make no law … abridging the freedom of speech.” This provision limits, for instance, Congress’ right to criminalize expressive conduct (e.g., flag burning).
• The Fourth Amendment bars the government from making “unreasonable searches and seizures.” Evidence gathered by the police in violation of this amendment must generally be excluded from the defendant’s criminal trial.
• The Fifth Amendment bars the government from trying a person twice for the same charge (the “Double Jeopardy” clause).