POS 2692 Honors Punishment Prof. Mark Tunick Spring 2009 www.fau.edu/~tunick/courses/punishment/ MW 8-9:20 in AD 206

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); Bonnie et. al., A Case Study in the Insanity Defense: The Trial of John W. Hinckley, Jr. (Foundation Press, 1599413846); Capote, In Cold Blood (Vintage, 0679745587); Foucault, Discipline and Punish (Vintage, 0679752554); Bentham, The Principles of Morals and Legislation (Prometheus, 0879754341); 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" (you will need Adobe Acrobat Reader). 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 MW 8-9:20 in AD 206.
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.

1/7 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)

1/12: 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

1/14 Classic Utilitarianism
Rdg: Bentham, Introduction to the Principles of Morals and Legislation, chs. 1-4, 12-15
Questions on Bentham, online

1/19 Holiday: M.L. King, Jr. Day

1/21: 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)

1/26 Rule utilitarianism
Rdg: John Rawls, "Two Concepts of Rules," The Philosophical Review, 64:3-32 (Jan., 1955), available online at jstor.

1/28 Punishment as a deterrent
Rdg: Larry Alexander, "The Doomsday Machine", pp. 209-219 (BB)
Assignment 1 Due

II. Radical Criticisms of punishment
2/2 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)
Feb. 2, 7pm, AD 119: Film screening of Kubrick's A Clockwork Orange (137 minutes)

2/4 Marxist critiques of punishment, and the concept of political crime.
Rdg: Eldridge Cleaver, "Domestic Law and International Order," from Soul on Ice (BB); "Prisonomics," in Rideau and Wikberg, Life Sentences (BB).
For those interested: A.M. Rosenthal, Thirty-eight Witnesses: The Kitty Genovese Case (an e-book available through the FAU library website)

2/9 Foucault
Rdg: Foucault, Discipline and Punish, pp. 3-23, 32-35 (top), 47-50, 73-78, 89-91, 101-162

2/11 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?
2/16 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

2/18 What counts as "causing harm"?
Rdg: Commonwealth v. Feinberg, 253 A. 2d 636 (Pennsylvania Supreme Court, 1969). Available at Westlaw or Lexis-Nexis

2/23 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.

IV. Accountability-Blameworthiness-Culpability-Responsibility
2/25  Defenses, excuses , responsibility
Rdg: Clarence Darrow, 'Defense of Loeb and Leopold' (BB); "McGarrahan op-ed_Excusing Murder" (BB): "Serving Life for Providing Car to Killers"(BB)
For those interested: Background on the Leopold and Loeb case, online; the film 'Compulsion'; Ric Waugh's film "Felon" (2008; dvd on reserve)

3/2, 4 Spring break, no classes

3/9  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.

3/11 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).
For those interested: the complete Scott and Steinberg article is available at Westlaw: enter 81 Tex. L. Rev. 799; find articles on the ongoing case of the 8 year old Arizona boy accused of killing his father (Romero) and another man in 2008

3/16 The insanity defense
Rdg: Bonnie, Case Study in the Insanity Defense ; "Should John Hinckley Go Free" (BB)
For those interested: Taxi Driver (directed by Martin Scorsese, 113 min), 7pm Monday March 16th, HC 114.
Other Recommended Film: M (directed by Fritz Lang, in German with English subtitles)--available in the library

3/18 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 (BB); Caspi et. al., "Role of Genotype in the Cycle of Violence in Maltreated Children," Science 297:851-4 (Aug 2, 2002)(BB)
For those interested: "Brain injury defense" (RR)

3/23 Film: Luis Buñuel's Los Olvidados in AD119 (starts 7:55 am) (85 minutes)
Alternative ending (youtube) ; Pedro's Dream (youtube)
Paper 1 Due

3/25: 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

3/30 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)

4/1 Entrapment: a philosophical perspective
Rdg: Joel Feinberg, Problems at the Roots of Law (2003), ch. 3 (BB)

4/6 Can culture excuse crime?
Rdg: Tunick, 'Can culture excuse crime?--evaluating the inability thesis', Punishment and Society 6:395-409 (October 2004) (BB); 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
4/8 Plea-bargaining
Rdg: Kenneth Kipnis, "Criminal Justice and the Negotiated Plea," Ethics 86:93-106 (January 1976), available online at jstor.

4/13 Film: "The Chair" in AD 119 (8 am sharp) (79 minutes)

4/15 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

4/20 Restitution or punishment?
Rdg: Randy Barnett, "Restitution: A New Paradigm of Criminal Justice," Ethics 87:279-301 (Jul., 1977), available online at jstor.

4/22 Conclusion
Paper 2 Due