Prof. Mark Tunick tunick@fau.edu

Description: Why do we punish? What justifies the infliction of pain or suffering? We shall consider both the philosophical debate about the morality of punishing at all, and also debates about various practical issues that arise within the criminal justice system, for example: Is it legitimate to use the criminal law to legislate morality? Should we allow the insanity defense? 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: Attendance and participation in class discussion is required. Students must come to class prepared to discuss the readings. Grading will be based on two short papers (each 2-3 pages) (20%), one longer paper (8 pages) (30%), participation (20%), and a final exam (30%). Every unexcused absence beyond 1 reduces your participation grade 1/3 letter grade (e.g. with 5 absences, B become C-). For the exam you may use notes, but only notes that you authored. Papers must be your own work. 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 should be available at the bookstore: Bourgois, In Search of Respect: Selling Crack in El Barrio, 2nd ed.; Bonnie et. al., A Case Study in the Insanity Defense: The Trial of John W. Hinckley, Jr.; Capote, In Cold Blood; Foucault, Discipline and Punish; Bentham, The Principles of Morals and Legislation; J.S. Mill, On Liberty. Other readings are available online through jstor, lexis-nexis, FAU electronic journal databases, or myfau; to access the first three, use a computer from within the FAU domain; if you're off-campus, create a proxy. To access readings available at myfau, go to the 'mycourses' tab, select this course, and under 'course tools' select files (you will need Adobe Acrobat Reader 5.0 or later). Each reading assignment should be completed prior to the class meeting under which it is listed.

Office Hours: Before or after class in HC 133; or arrange a time by phoning 799-8670 or emailing me at tunick@fau.edu.

1/9 Introduction: some hard cases.
Rdg: "Stamper" (myfau); "Stamper_outcome" (myfau); "Dog punishment" (myfau); "Leroy Strachan" (myfau)
For those interested: "In the face of death: the case of Jeremy Gross"; "Killers of Dartmouth Professors"; "Mother Who Stoned 2 Sons to Death Acquitted"; "Nazi war criminals trial"; "Shopping Addict Spared"; "Teen Drowns Baby"; "Yates_seek death penalty"--all available at myfau.

1/11 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 (myfau); begin Capote, In Cold Blood

1/16: M.L.King, Jr. Day, university closed

1/18: A context for discussing punishment: Capote's In Cold Blood
Rdg: Capote, In Cold Blood

1/23 Modern Retributive Theories
Rdg: D. Mabbott, "Punishment,"  Mind 48:152-167 (Apr., 1939), available online at jstor; and Joel Feinberg, "The Expressive Function of Punishment" (myfau)
For those interested: U.S. v. Gementera, 379 F.3d 596 (2004) (legality of judge requiring mail thief to stand outside post office wearing a sign saying 'I stole mail. This is my punishment'), available at Lexis-Nexis

1/25 Classic Utilitarianism
Rdg: Bentham, Introduction to the Principles of Morals and Legislation, chs. 1-4, 12-15
Questions on Bentham, online

1/30 Rule utilitarianism
Rdg: John Rawls, "Two Concepts of Rules," The Philosophical Review, 64:3-32 (Jan., 1955), available online at jstor.

2/1 Punishment as a deterrent
Rdg: Larry Alexander, "The Doomsday Machine", pp. 209-219 (myfau)
2-3 page paper due

II. Radical Criticisms of punishment
2/5: Film screening of Kubrick's A Clockwork Orange, HC 114, 1pm-3:30pm (Film begins promptly at 1:00)

2/6 Karl Menninger.
Rdg: Menninger, The Crime of Punishment, chs. 1, 7, 8, 10 (myfau).
For those interested: Thomas Carlyle (1795-1881), "Model Prisons," from Latter Day Pamphlets No. 2 (myfau) (Carlyle takes a very different position towards prisons than does Menninger)

2/8 Marxist critiques of punishment, and the concept of political crime.
Rdg: Eldridge Cleaver, "Domestic Law and International Order," from Soul on Ice (myfau); "Prisonomics," in Rideau and Wikberg, Life Sentences (myfau). Begin Foucault reading.

2/13 Foucault
Rdg: Foucault, Discipline and Punish, pp. 3-23, 32-35 (top), 47-50, 73-78, 89-91, 101-162

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

III. What actions should be made crimes?
2/20 Mill's harm principle.
Rdg: J.S. Mill, On Liberty, chapters 1, 3, 4, 5; "No Pain, some gain," Economist, Nov. 25, 2006 (on NY's plan to ban trans fatty acids) (mfau)
For those interested: "Husband Pleads Guilty to Sex Assault of Child" (myfau); 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

2/22 What counts as "causing harm"?
Rdg: Commonwealth v. Feinberg, 253 A. 2d 636 (Pennsylvania Supreme Court, 1969). Available at Lexis-Nexis

2/27 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" (myfau); "Driving Drunk and Child Deaths" (myfau); "Cox_drunken killing" (myfau); "DVD Player Focus in Alaska Murder Trial" (myfau)

IV. Accountability
3/1  Defenses and excuses
Rdg: Clarence Darrow, 'Defense of Loeb and Leopold' (myfau); "McGarrahan op-ed_Excusing Murder" (myfau)
For those interested: Background on the Leopold and Loeb case, online ; the film 'Compulsion'
2-3 page paper due March 3rd by 1pm (HC 133). No late papers.

3/6,8: Spring break, no classes

3/13  The insanity defense
Rdg: Bonnie, Case Study in the Insanity Defense ; "Should John Hinckley Go Free" (myfau)
Recommended Films: Taxi Driver; M, directed by Fritz Lang (German with English subtitles)--available in the library

3/15 Punishing juveniles: the case of Lionel Tate
Rdg: multiple news articles on Lionel Tate (myfau); "6 year old kills" (myfau); Paul McNulty, "Natural Born Killers?", Policy Review 71:84-7 (Winter 1995), available online; and Scott and Steinberg, "Blaming Youth" (myfau).
For those interested: the complete Scott and Steinberg article is available at lexis-nexis: go to legal research/lawreviews and find 81 Tex. L. Rev. 799 (2003)

3/20 The Free will-determinism debate and moral responsibility
Rdg: 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 (myfau); Caspi et. al., "Role of Genotype in the Cycle of Violence in Maltreated Children," Science 297:851-4 (Aug 2, 2002)(myfau)
For those interested: "Brain injury defense" (myfau)

3/22 Manslaughter
Rdg: "Carratelli_vehicular homicide" (myfau); Gooden v. Commonwealth (myfau)
For those interested: Newsday coverage of Martin Heidgen case (convicted of murder in October 2006 for killing 2 people in an auto collision he caused while drunk)

3/27 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)(myfau)
Recommended: Bourgois, ch. 3, 6, 8
Film: Luis Bunuel's Los Olvidados to be shown in class, March 27th, in AD 119 (Auditorium) promptly at 4 pm, with discussion afterwards.

3/29 Discussion of Los Olvidados and Bourgois

4/3 Can culture excuse crime?
Rdg: Tunick, 'Can culture excuse crime?--evaluating the inability thesis', Punishment and Society 6:395-409 (October 2004) (myfau); also available online
For those interested: Tunick, 'John Stuart Mill and Unassimilated Subjects," Political Studies 53 (4), 833-48 (December 2005), available online

V. Sentencing Issues

4/5 Plea-bargaining
Rdg: Kenneth Kipnis, "Criminal Justice and the Negotiated Plea," Ethics 86:93-106 (January 1976), available online at jstor.
For those interested: "Pleabargain in Oklahoma Bombing" (New York Times, Jan. 19, 2006) (myfau)

4/10 Film: "The Chair"
8 page paper due

4/12 Death vs. life imprisonment without parole
Rdg: "Almost all prisoners now serving life terms" (myfau); Liptak, "To More Inmates, Life Term Means Dying Behind Bars," New York Times, Oct. 2, 2005; Liptak, "Locked away forever after crimes as teenagers," New York Times, Oct. 3, 2005; and Liptak, "Serving Life, with No Chance of Redemption," New York Times, Oct. 5, 2005: all available by searching news/general news at lexis-nexis

4/17 Capital Punishment: For and against.
Rdg: John Stuart Mill, speech on capital punishment, available online; Walter Berns, "The Morality of Anger" (myfau); Bedau, The Case Against the Death Penalty (myfau); "Study Suspects Thousands of False Convictions" (myfau); "Avery: Exonerated but Back in Jail" (myfau)
For those interested: Tunick, "Capital Punishment" (with Appendix) (myfau); 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

4/19 Restitution or punishment?
Rdg: Randy Barnett, "Restitution: A New Paradigm of Criminal Justice," Ethics 87:279-301 (Jul., 1977), available online at jstor.

4/24 Treatment of released convicts
Rdg: "Felon rights in Florida" (myfau); "Released convicts face penalties" (myfau)

4/26 Conclusion/Review for final

5/1 Final exam 4pm-6:30pm

Other works of interest:
Prison life: Jennifer Wynn, Inside Rikers; Ted Conover, New Jack: Guarding Sing Sing; Pete Earley, Hot House: Life Inside Leavenworth; Lewis Lawes, 20,000 Years in Sing Sing (1932)
Theory: John DiIulio, No Escape: The Future of American Corrections (1991); Emile Durkheim, The Division of Labor in Society (1893); Elementary Forms of the Religious Life (1912); Rene Girard, Violence and the Sacred; Primoratz, Igor, Justifying Legal Punishment (1989); C.L. Ten, Crime, Guilt, and Punishment (1987); Tunick, Punishment: Theory and Practice (1992)
Historical: Douglas MacDowell, Athenian Homicide Law (1963); Lawrence Friedman, Crime and Punishment in American History (1993)
Literature: Melville, Billy Budd; Dostoyevsky, House of the Dead
Films: (* indicates available in library): Film noirs and neo-noirs: Asphalt Jungle*, Big Combo*, Cape Fear*, Clash by Night*, Criss Cross*, Dead Reckoning*, Detour*, Double Indemnity*, Experiment in Terror*, Force of Evil*, Fury*, Gun Crazy*, Killing of a Chinese Bookie*, On Dangerous Ground, Postman Always Rings Twice (1946)*, Taxi Driver*, They Live by Night, Thieves Like Us*, This Gun for Hire*, Try and Get Me*; also: Bicycle Thief*, Birdman from Alcatraz; Capturing the Friedmans*; Compulsion; Dancer in the Dark*, Day the Sun Turned Cold*, Deathwish*, Dogville*, High and Low*, Homicide TV Series*, The Execution of Private Slovik; Four Hundred Blows*; I am a Fugitive from a Chain Gang*; In Cold Blood*; M*, Menace II Society*, Thin Blue Line; Twelve Angry Men*, The Wire TV Series*
Websites on criminal justice: Criminal Law Links (Heiros Gamos); F.B.I. Homepage; National Archive of Criminal Justice Data;  National Criminal Justice Reference Service; Corrections Industry Website; Prison Information (from Critical Criminology web site); Sourcebook of Criminal Justice Statistics;  U.S. Department of Justice; U.S. Sentencing Commission (federal sentencing statistics by circuit and district)