POS 2692 Honors Punishment Prof. Mark Tunick Spring 2011 www.fau.edu/~tunick/courses/punishment/ TR 2-3:20

Description: Why do we punish? What justifies the infliction of pain or suffering? We shall consider both the philosophical issue of whether it is moral to punish at all, and also practical issues, for example: Is it legitimate to use the criminal law to legislate morality? Should we allow the insanity defense? Do criminals who were entrapped deserve punishment? Should we continue to plea bargain? How much punishment is appropriate for a given crime? Is capital punishment ever appropriate? These problems will be our focal point for considering major concepts of political theory--authority, obligation, justice and freedom. We draw on a variety of sources: classic texts of political theory, contemporary works in philosophy, history, anthropology, sociology, and psychology, literature, court decisions, and films/documentaries.

Requirements: Students must come to class prepared to discuss the readings. Grading will be based on two short assignments (each 2-3 pages) (20%), two papers (6-8 pages) (50%), participation in class discussion (10%), and unannounced quizzes (20%). Every unexcused absence beyond 1 reduces your participation grade 1/3 letter grade. For the quizzes you may use any notes that you authored, but not the texts. Missed quizzes cannot be made up. Students agree to adhere to the honor code, available online at http://www.fau.edu/divdept/honcol/academics_honor_code.htm.

Readings: The following books are at the bookstore: Bourgois, In Search of Respect: Selling Crack in El Barrio, 2nd ed. (Cambridge UP, 0521017114); Capote, In Cold Blood (Vintage, 0679745587); Foucault, Discipline and Punish (Vintage, 0679752554); Williams, Free Will and Determinism: A Dialogue (Hackett, 0915144778); J.S. Mill, On Liberty (Hackett, 0915144433). Other readings are available online through blackboard (BB), jstor, lexis-nexis or westlaw, or FAU electronic journal databases; to access the latter databases you must use a computer from within the FAU domain or else create a proxy. To access readings on blackboard, go to "Course Readings." RR indicates "Recommended Readings" folder in BB. Each reading assignment should be completed prior to the class meeting under which it is listed.

Class Meets TR 2-3:20pm.
Office Hours: Before or after class; drop by HC 133 (no appointment needed); or arrange a time by phoning 799-8670 or emailing me at tunick@fau.edu.

1/13 Classic retributive theories of Kant and Hegel
Rdg: Kant's Doctrine of Right (from the Metaphysics of Morals), and Hegel's Philosophy of Right, excerpts (BB)
For those interested: Vlastos, Socrates' Rejection of Retaliation (RR); Tunick, Punishment, ch. 3 (RR); Tunick, "Is Kant a Retributivist?"(RR)

1/18: Modern Retributive Theories
Rdg: D. Mabbott, "Punishment,"  Mind 48:152-167 (Apr., 1939), available online at jstor; Joel Feinberg, "Expressive Function of Punishment," Preface and secs. 1-2 (BB).
For those interested: Feinberg, "The Expressive Function of Punishment" (complete) (RR); Douglas Husak, "Why Punish the Deserving?" Nous 26(4):447-64 (1992), available online at jstor

1/20 Classic Utilitarianism
Rdg: Bentham, Introduction to the Principles of Morals and Legislation, chs. 1-4, 12-17 (BB)
Questions on Bentham, online

1/25: Modern utilitarianism: a 'law and economics' approach
Rdg: Kaplow and Shavell, Fairness versus Welfare, ch. 6 (excerpts) (BB)
For those interested: Kaplow and Shavell, ch. 6 (complete) (RR); Tunick, "Efficiency, Practices, and the Moral Point of View: Limits of Economic Interpretations of Law," in M. White, ed. Theoretical Foundations of Law and Economics (2009)(RR)

1/27 Punishment as a deterrent
Rdg: Larry Alexander, "The Doomsday Machine", pp. 209-219 (BB)

2/1 Rule utilitarianism
Rdg: John Rawls, "Two Concepts of Rules," The Philosophical Review, 64:3-32 (Jan., 1955), available online at jstor.

2/3 Should attempts be punished the same as completed crimes?
Rdg: Joel Feinberg, "Criminal Attempts" (BB)
Assignment 1 Due

2/8 Does Megan's law (requiring notification that a convicted sex offender resides in the community) impose punishment?
Rdg: E.B. v. Verniero, 119 F.3d 1077, 1997(excerpts at BB)
For those interested: Wallace v. State, 905 N.E. 2d 371 (2009), holding that a sex offender registration act violates Indiana's state constitution in amounting to ex post facto punishment (via westlaw)
Florida sex offender registry

II. Radical Criticisms of punishment
2/10 Foucault
Rdg: Foucault, Discipline and Punish, pp. 3-23, 32-35 (top), 47-50, 73-78, 89-91

2/15 Foucault, continued.
Rdg: Foucault, Discipline and Punish, pp. 101-62, 195-209, 227-228, 249-256, 280 (bottom)-281, 290-296, 306 (bottom)-308

2/17 Restitution instead of punishment?
Rdg: Randy Barnett, "Restitution: A New Paradigm of Criminal Justice," Ethics 87:279-301 (Jul., 1977), available online at jstor.

2/21: 7pm, Film screening of Kubrick's A Clockwork Orange in AD 119 (Auditorium) (137 minutes)

2/22 Karl Menninger.
Rdg: Menninger, The Crime of Punishment, chs. 1, 7, 8, 10 (BB).
For those interested: Thomas Carlyle (1795-1881), "Model Prisons," from Latter Day Pamphlets No. 2 (RR) (Carlyle takes a very different position towards prisons than does Menninger); for an alternate radical approach, see Cleaver, "Domestic law and international order," from Soul on Ice (RR)

III. What actions should be made crimes?
2/24 What counts as "causing harm"?
Rdg: Commonwealth v. Feinberg, 253 A. 2d 636 (Pennsylvania Supreme Court, 1969) (BB, or Westlaw)
For those interested: Amedure v. Jenny Jones Show, 656 N.W. 2d 195 (2003)
Recommended: Hegel, Philosophy of Right Pars. 118, 132 (RR)

3/1 Mill's harm principle.
Rdg: J.S. Mill, On Liberty, chapters 1, 3, 4, 5
For those interested: "Husband Pleads Guilty to Sex Assault of Child" (RR); Feinberg, Joel, The Moral Limits of the Criminal Law, 4 vols. (1984-88)--develops the harm principle and contrasts it with other liberty-limiting principles
Assignment 2 due

3/3 Is drunk driving a serious offense?
Rdg: Husak, "Is Drunk Driving a Serious Offense?" Philosophy and Public Affairs 23:52-73 (Winter, 1994), available online at jstor
Recommended: "DUI Light Sentence"; "Driving Drunk and Child Deaths"; "Cox_drunken killing"; "DVD Player Focus in Alaska Murder Trial"--all in RR.

3/8, 10 Spring break, no classes

IV. Accountability-Blameworthiness-Culpability-Responsibility
3/15  Case Study: In Cold Blood
Rdg: Capote, In Cold Blood
For those interested: The film In Cold Blood, directed by Richard Brooks (1967)-vhs in library.
Verdict in Cheshire Murder case (NYT Nov 9, 2010)

3/17 Degrees of culpability; introduction to defenses (justifications and excuses)
Rdg: Kaplan and Weisberg, 'Culpability' (BB); "Driver in Crash that killed 6 accused of vehicular homicide," PBP Oct 16, 1999 (BB); "Serving Life for Providing Car to Killers"(BB)
For those interested: Ric Waugh's film "Felon" (2008; dvd on reserve)
Recommended: Hegel, Philosophy of Right, Pars. 118, 132 (RR)

March 21, 7pm, AD 119: Film screening of "Taxi Driver" (directed by Martin Scorsese, 113 min)

3/22 Punishing juveniles: the case of Lionel Tate
Rdg: Lionel Tate case (BB); "6 year old kills" (BB); Paul McNulty, "Natural Born Killers?", Policy Review 71:84-7 (Winter 1995) (BB); and Scott and Steinberg, "Blaming Youth" (BB).
Recommended: Frontline: Juvenile Justice
For those interested: the complete Scott and Steinberg article is available at Westlaw: enter 81 Tex. L. Rev. 799.

3/24 The insanity defense
Rdg: The Trial of John Hinckley Website: read Linder's summary, and "Trial Testimony and Arguments"; "Should John Hinckley Go Free" (BB)
Recommended Film (in addition to Taxi Driver, being shown on March 21): M (directed by Fritz Lang, in German with English subtitles)--available in the library

3/29 The Free will-determinism debate and moral responsibility
Rdg: Clifford Williams, Free Will and Determinism: A Dialogue.
For those interested: "Brain injury defense" (RR); Robert Owen, An Address to the Inhabitants of New Lanark (1816), available online; and J.S. Mill, "Of Liberty and Necessity," Bk. 6 ch. 2 of A System of Logic (RR); Caspi et. al., "Role of Genotype in the Cycle of Violence in Maltreated Children," Science 297:851-4 (Aug 2, 2002)(RR)

3/31 Film: Luis Buñuel's Los Olvidados in AD119 (starts promptly at 2pm in AD119) (85 minutes)
Alternative ending (youtube) ; Pedro's Dream (youtube)
Paper 1 Due

4/5 Social marginalization and accountability
Rdg: Bourgois, In Search of Respect: Selling Crack in El Barrio, Introduction, chs. 1, 2, 4, 5, pp. 259-60 and 278-286 from ch. 7, ch. 9; and  William Bennett et.al., Body Count: Moral Poverty and how to win America's War against crime and drugs (1996), ch. 5 (pp. 191-208)(BB)
Recommended: Bourgois, ch. 3, 6, 8

4/7 The Entrapment Defense
Rdg: Sorrells v U.S., 287 U.S. 435 (1932); Sherman v. U.S., 356 U.S. 369 (1958); State v. J.D.W., 910 P. 2d 1242 (1995); U.S. v. Poehlman, 217 F. 3d 692 (2000); State v. Heitman, 262 Neb. 185 (2001) (all at BB)
Recommended: NYT article on sting operation targeting potential terrorist threat in Portland

4/12 Entrapment: a philosophical perspective
Rdg: Mark Tunick, "Entrapment and Retributive Theory" (2011)(BB)
For those interested: Feinberg, "Entrapment" (RR)

4/14 Can culture excuse crime?
Rdg: Tunick, 'Can culture excuse crime?--evaluating the inability thesis', Punishment and Society 6:395-409 (October 2004) (BB or online)

V. Sentencing Issues
4/19 Plea-bargaining
Rdg: Kenneth Kipnis, "Criminal Justice and the Negotiated Plea," Ethics 86:93-106 (January 1976), available online at jstor; Richard Oppel, "Sentencing Shift Gives New Leverage to Prosecutors," New York Times, Sept. 26, 2011, online.

4/21 Film: "The Chair" in AD 119 (2pm sharp) (79 minutes)

4/26 Capital Punishment: For and against.
Rdg: John Stuart Mill, Speech on capital punishment (BB); Walter Berns, "The Morality of Anger" (BB); Bedau, The Case Against the Death Penalty (BB); "Study Suspects Thousands of False Convictions" (BB); "Avery: Exonerated but Back in Jail" (BB)
For those interested: Tunick, "Capital Punishment" (with Appendix) (RR); Is the death penalty applied fairly? See Baldus et al, Disposition of Nebraska Capital and Non-Capital Homicide Cases (1973-1999): A Legal and Empirical Analysis (2001), online report (appendices); Stanley Rothman and Stephen Power, "Execution by quota?", Public Interest v. 116 (Summer 1994), available online

Paper 2 Due

Additional notes:
Policy on Accommodations: In compliance with the Americans with Disabilities Act (ADA), students who require reasonable accommodations due to a disability to properly execute coursework must register with the Office for Students with Disabilities (OSD) -- SR 110 (561-799-8010) – and follow all OSD procedures.

Academic Integrity Policy:Students at Florida Atlantic University are expected to maintain the highest ethical standards. Academic dishonesty is considered a serious breach of these ethical standards, because it interferes with the university mission to provide a high quality education in which no student enjoys an unfair advantage over any other. Academic dishonesty is also destructive of the university community, which is grounded in a system of mutual trust and places high value on personal integrity and individual responsibility. Harsh penalties are associated with academic dishonesty. For more information, see University Regulation 4.001 and http://www.fau.edu/divdept/honcol/students/honorcode.html

Classroom Etiquette Policy: In order to enhance and maintain a productive atmosphere for education, personal communication devices, such as cellular telephones and pagers, are to be disabled in class sessions.

updated 9-26-11