Wednesday, November 23, 2005

Cruel and Unusual?

All right, my legal friends. Is this kind of sentencing allowed?

I mean, I'm all for not being unnecessarily cruel to animals, and I really despise people that are nasty to their pets. But there's something about this that makes me uneasy. Maybe it's the idea that dumping her in the woods the way she dumped the cats in the woods makes her life of no more value than theirs.


The Bard said...

Notice the other things the judge has done to punish criminals. I've heard this called as "alternative punishmed" or "shaming." Sometimes I think it is a good idea, as it keeps people out of jail for petty crimes, can serve an even greater deterrent purpose, and sometimes serves to restore the victim (notice the judge's order to have the vandals throw a picnic to replace the one they spoiled).

On the flip side, it has been attacked as cruel, vindictive, and ineffective. I'm not sure whether or not the unusual sentances get upheld on appeal; most of the time I suspect there is no appeal.

I'm drawn toward the practice on both retributive (make the bad person know how it feels) and restorative (replace the picnic, etc) grounds. I'm uneasy with the judicial discretion, because it could create a situation where a judge can impose a punishment more severe than the statute allows. Right now my thoughts are settled yet overall, although I agree with you that the punishment of of the woman is excessive. The implicit comparison of human life to cat life is one problem, but I think the threat to the woman's life/health of being out there alone at night is a bigger problem

Becca said... has another example of similar sentencing. In that case, the sentence survived appeal. Cute, creative, very possibly opens the door to too much judicial discretion. Too much judicial discretion can lead to disparate justice -- something our system was designed to avoid.

The Bard said...

Becca's point goes to a broader, inherent conflict in our laws in general and criminal laws in particular. We want punishements to fit the crime, but we also want equal justice under law. Before law school I thought that those two goals were substantially the same, but now I see the tension. Crimes, like snowflakes, are never exactly alike, so the punishment has to vary.

Again, I am drawn to these alternative sentances, as often they often serve both retribution and deterrence in a more effectice manner. But they also require giving judges discretion, something that originalists like myself tend to oppose.

On a final note, I once saw a Star Trek episode where the crew landed on a planet where murderers were punished by every day having to experience the last ten minutes of their victim's life through their victim's eyes. Would such a punishment be cruel & unusual? Would it work? Would it be just?