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This 21 page Study Guide was uploaded by James Wierman on Monday November 24, 2014. The Study Guide belongs to 200 at University of Washington taught by Steve Herbert in Fall2014. Since its upload, it has received 91 views. For similar materials see LSJ in Ethics at University of Washington.
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Date Created: 11/24/14
LSJ Midterm ll Study Guide 11142014 Punishment Why do we punish others as a society Maintain order and bc collective conscience Durkheim s theory to perpetuate social solidarity LOOK at pell grants How does it affect social ordercontrol Conflict theory bc others interests in punishing people and creates a precedence such as deterrence How has punishment in the US changed since the 1970s Increased incarceration rates tough on crime power shifted from judge to prosecutor Charges are harsher and judges have less discretion What role has law played in this change Law is more punitive and less rehabilitative What are the unintended consequences of the change in punishment Family tension monetary problems doing time on the outside stigma having a rap sheet More likely to go back How might you argue that these consequences make punishment more of less effective or just Doing time on the outside Consequences etc Juvenile Justice How do we define juveniles in the criminal justice system Minors that have the potential to be serious criminals in adulthood but be able to be rehabilitated Can or cannot weigh consequences Diminished capacity of being a rational actor or not What are we implicitly saying about juveniles who are treated as adults We are implicitly assuming they re a rational actor and know what they are doing can weigh the cost and benefits and knows the difference We assume that they are a public safety threat and a hardened criminal meaning they cannot be rehabilitated and deserves the incapacitation Should juveniles ever be treated as adults When and Why Yes depending on circumstance type and severity of crime and if they weighed cost and benefit MILLER V ALABAMA What forms of punishment are most suited for juveniles Rehabilitative because a child is more malleable and deserve a right to change What is the policy in WA What are some alternatives It varies by county but it is permissible to prosecute juveniles as adults through the process of declination ages 1017 If a juvenile commits murder assault rape robber and or a repeat offender then they will be placed in adult court Discretionary declination is when legal actors determine if the juvenile should be prosecuted as an adult Rights in conflict What are rights claims Protection against government overreach and violation of individual rights freedoms and liberty Where do they come from Inherent that all people are equal and thus have rights to life freedom and property and happiness Bill of Rights What varieties of the rightsclaims exist Civil amp political right to vote right to protection against discrimination right to freedom of speech right to self determination right to beliefreligion right to fair trial right to assembly We have these rights because they give us representation in gov they help us speak up against gov and be protected Social amp economic right to education right to fair wageworking condition right to food amp shelter right to social security right to marriage right to healthcare We have these rights because we have right to self actualization we are individuals who deserve the right to create our own life Are some more important than others WhenWhy do rights claims complicit How do we use law to resolve these conflicts How might law fail to resolve rights conflicts Syllabus Q How does law intersect with rights Makah Lie sits no protest zones state interest might conflict with rights Church of Lukumi v Hilaleah Smith v Oregon Law is very ambiguous What key forms do rights take Do law and rights always work in concert or do they conflict Definitely conflict depending on circumstances EX Church of Lukumi violating ordinances and public health and wellness How are any such conflicts addressed They go to a rights court and supreme in certain instances Result in revision of law or amendments or could uphold law Rights Speech protest assembly could conflict peace and order Protection of discrimination ex Banishment in Seattle Arizona law on racial profiling Property Rights zoning restriction and regulations might impede on right to modify exchange or own land LSJ Midterm ll Study Guide 11142014 LAW VIOLENCE AND PUNISHMENT I 1 What are the different philosophies of punishment Retribution eye for an eye debt to society because crime has disturbed the peace taken public sense of safety andor caused loss of physical health or life Pay back to society is by fine community service time or execution Rehabilitationchange people for the better Human nature is strongly influenced by other factors in environment socialization Resocializes people by counseling therapy job training religion and education Uses discretion and has indeterminate sentencing Deterrence keeps people from committing crime lnvokes rational choice theory where people weigh the cost and benefits of the crime If punishment is too costly then it would stop people from doing a crime No discretion wanted because we want high costs and prison to be difficult lncapacitation for public safety as it suggests human nature is bad and that there should be harsh punishments lengthy prison time and execution No discretion wanted so there are max sentencing and prison time unpleasant 2 To whom should the power to punish be allocated Should it be given to judges Discretion or no Greater uniformity when there is little to no discretion with mandatory minimum and sentencing guidelines Prosecutors have more authority now as they get to pick which charges they want LSJ Midterm ll Study Guide 11142014 LAW VIOLENCE AND PUNISHMENT ll SOCIALOGICAL EXPLANATIONS FOR PUNISHMENTS 1 Why might punishment be seen as a mechanism for enhancing social solidarity Social solidarity is the cohesion of society Under Durkheim s theory of the collective conscience a crime is a violation of society s underlying moral code and thus punishment for such crimes brings society together as society tries to sanctify our moral code in court He views law as being irrational passionate and vengeful and that it isn t the harm from crime that makes society want to punish the offender but actually the violation of the collective moral code which might be connected to the idea that Durkheim s theory is an extension of informal social control only formalized 2 Why might punishment be seen as a component of social conflict There are different views of morality in society along with different interests A critique of Durkheim s theory is that there is no collective vision and that laws or punishments concerning areas such as abortion race gay marriage and religion affect the view of law Money too is a dividing factor as it can create different interests within law and create a social divide in the perception of punishment 3 Does either of these tendencies suggest a need for less democracy in punishment practice Why or why not Judges and prosecutor should be elected as it would be an avenue to uphold societal values As punishment is a likely form in which society can come together in agreement there should be a consensus on who prosecutes and sentences the offender Social problems such as race and such can be solved slowly as minorities begin to vote more than the white elites in society CONNECT TO OCT 21 PELL GRANT READINGS SEE NOTES LSJ Midterm ll Study Guide 11142014 LAW VIOLENCE AND PUNISHMENT III COLLATERAL CONSEQUENCES OF PUNISHMENT 1 How was life previously organized in prisons Convict code John Erwin do your own time and don t mess with others so its easier to finish Informal power sharing with guards so it was less violent 2 How and why was that changed in recent years Greater levels of violence sexual violence and rise in racial fusion 1 Larger number of prisoners of color which is diff from guards who are not well educated or paid 2 Larger number of prisoners so ratio is imbalanced 3 Diminishes rehabilitation with little incentive for good behavior due to determined sentences 4 Rise of private prisons which may create incentive to incarcerate 5 Rise of prison gangs violent prone 3 Why might it be difficult for ex convicts to return to society Prisoners adapt to prison lifestyle of violence and get different norms They will have a hard time getting a job and housing to rap sheet Loss of social connections and lack of marketable skills The stigma job discretion may lead to more crimes along with family stresses from tensions from prison 4 What are collateral consequences Are they defensible Collateral consequences restrictions required to undergo drug tests not able to vote no firearms limited mobility limited residential areas denied public housing food stamps and Legal financial obligations LFOs w 12 interest 5 What are the ong term consequences of mass imprisonment A lot of cash goes into this system and cripples generations as convicts don t have any support and ruins family relations LSJ Midterm ll Study Guide 11142014 LAW VIOLENCE AND PUNISHMENT IV LEGAL AND MORAL DILEMMAS 1 Why are super max prisons and solitary confinement considered necessary Solitary confinement prisoners have little contact with others 2224 hours in their cell and are handcuffed at all times This is necessary because it protects them from other prisoners deterrence for misbehavior threats people to act well more important now than previously bc of determinate sentencing It also provide protection from disfavored inmates ex child molesters are usually targeted by other inmates so they need protection from them It also works modify behavior forces them not to do behavior again 2 Why might they be criticized It can be considered tortured and might be morally wrong it violates international human rights doctrine as it is inhumane administration can be arbitrary with limited recourse to contesting a lot of the evidence is based off prisoner s words when they could be lying no due process right to challenge it might be counterproductive because there is usually an increase in mental illness within 10 days of being in SC prisoners 8x more likely to commit suicide in sc solitary confinement violates 8 amendment bc its cruel and unusual punishment Its also more expensive 3 What rights do prisoners in solitary confinement continue to possess and why They possess the first amendment rights There is the right to autonomy self governing the right to protest against the gov right to speech The DOC cant violate their 8quot amendment rights Rehabilitative measures are vague LSJ Midterm ll Study Guide 11142014 WORDS AND LAW IV JUVENILES AS ADULTS 1 Why might we wish to try some alleged juvenile offenders as adults We might try some juveniles as adults because the crimes are so serious that considering the juvenile as a child would be letting them off easy These kinds of cases include murder rape assault burglary Also if they are a public safety threat then they are deserving of incapacitation If so is a potential mandatory sentence of life wo parole constitutional Yes it is unconstitutional for young children to have a sentence without parole because they were young at the time and deserve the chance to change Unconstitutional Constitutional Immature capable of rehab Need to deter precedence Lack of strong morals Perhaps intent was there Lack of intent impulsive Murder requires high debt to society incapable of weighing consequences Malicious crime Policy choice of LWOPS Constitution does not forbid it Troubled past no excuse LSJ Midterm ll Study Guide 11142014 2 If we treat juveniles as adults what are the definitions of juvenile delinquent are we relying upon We are implicitly assuming they re a rational actor and know what they are doing can weigh the cost and benefits and knows the difference We assume that they are a public safety threat and a hardened criminal meaning they cannot be rehabilitated and deserves the incapacitation What alternate definitions might thereby be diminished They may be defined as a victimoutcome of difficult circumstances ex bad home life poor education They may have mental health issues They are immature and underdeveloped little experience with society therefore they make poor decisions frontal lobe isn t fully developed and that s what helps us with decision making They also don t anticipate the consequences act on a whim peer pressure to do certain things 3 If juveniles are to be treated as adults should the justice process be the same as that for the adults They should be treated as adults depending on the seriousness of the crime if they become a serious public safety threat Or should juveniles never be treated as an adult The line should be drawn depending on age 17 is basically 18 adult so that is okay to try as an adult but younger ages shouldn t be tried as an adult because they are immature Children aren t given the same rights and privileges so they shouldn t be treated the same LSJ Midterm ll Study Guide 11142014 WORDS AND LAW V CAN JUSTICE BE RESTORATlVE 1 How does a restorative justice process fundamentally redefine a criminal offense Restorative justice shows full accounts on each side where offender apologizes and owns up to crimes and victim gets to express their grievances and possibly negotiate for compensation 2Why does a restorative justice process deserve our support This model addresses problems that hit home with the victim and offender and generate negotiations between the two It also wants to generate public safety and create accountability in part of the offender and prevent incarcerations and saves taxpayers money Also leaves room for a creative punishment 3Why might such a process deserve critique This process doesn t have any clear punishment for offenders and could incite future grievances It also undermines the idea of deterrence and doesn t address which laws this system would work for 4 How expansive could restorative justice be Juveniles might be more affected by this process as it might be more rehabilitative H H H I I LSJ Midterm ll Study Guide 11142014 VARIETY OF RIGHTS I HUMAN RIGHTS 1 How are human rights justified Human rights are justified because they are necessary to preserve well being of everybody Gives people protection from governmental powers All humans are equal and need the same rights OR they aren t created equal therefore we need the rights to make things equal Need to protect individual autonomy because we have the capacity to create our own life 2 What is the distinction between civil amp political rights and social amp economic rights Civil amp political right to vote right to protection against discrimination right to freedom of speech right to seIf determination right to beliefreligion right to fair trial right to assembly We have these rights because they give us representation in gov they help us speak up against gov and be protected Social amp economic right to education right to fair wageworking condition right to food amp shelter right to social security right to marriage right to healthcare We have these rights because we have right to self actualization we are individuals who deserve the right to create our own life 3 How far should human right protections extend 4 In claims over working conditions and wages 5 In claims over reparations for instances of alleged race based disparate impacts from disasters like flooding LSJ Midterm ll Study Guide 11142014 VARIETIES OF RIGHTS ll PROPERTY RIGHTS 1 What are main capacities bestowed on owners of property 1 Right to Exclusion need government coercive force to uphold this 2 Right to Exchange Contract and deed needed and if broken need law court to settle dispute 3 Right to Modify Need building permits licenses eectricityetc 2 How is government critical to the exercise of property rights Gov t control can revoke improvement capacity restrict use zoning can employ eminent domain use to legit public interest with compensation property taxes regulate its use 3 How can government legitimately restrict the exercise of property rights They can create regulation and laws Law dictates what the gov can or cannot do to private property owners 4 Balance of private interest VS public good bad precedent could cause trouble in creating future environmental regulations LSJ Midterm ll Study Guide 11142014 VARIETIES OF RIGHTS Ill ANIMAL RIGHTS 1 How does TVA v Hill illustrate some of the central issues in the protection of species The snail darter has a right to life moral as they are sentient beings that feel pain and for that reason they are similar to humans as they communicate use tools have family units emotions and high brain development The role in the ecosystem is very important and thus getting rid of them affects human life too 2 Does an argument for the protection of species need to rely on an argument for animal rights 3 Why might one argue against animal rights 4 If one supports animal rights how does one balance these against sometimes competing rights claims LSJ Midterm II Study Guide 11142014 THE POLITICS OF RIGHTS THE CASE OF MAKAH WHALING LECTURE ONLINE LSJ Midterm ll Study Guide 11142014 RIGHTS IN CONFLICT II THE CASE OF THE SIDEWALK 1 What is a sidewalk Def 1 Public forum a place for public interaction Important because we have a right to assembly because we need to share ideas to be a collective voice to create a common good and raise awareness and communicate to check our govt Sidewalk must be protected to protect the public 2 Medium of Transportation a place to travel for safety convenience commerce access Important because we have a right to mobility 4 amendment Why might two different views of the sidewalk imply two different and potentially competing rights claims When can govt restrict assembly in the name of transportation What rules must govt follow to restrict assembly and speech Restriction must be content neutral have a legit reason or compelling state interest need to use least restrictive means and provide ultimate forums 2 How has this conflict been illustrated in Seattle Sit lie ordincances restricted in downtown area during daytime of sitting and lying down in sidewalk No protest zone restricted 25 blocks from protesters James Wierman LSJ 200 Reading Question Responses LSJ Midterm II Study Guide 11142014 Page refers to the term legislative penal drama to illustrate how lawmakers in a coalition with the media target certain audiences and in the case of the Pell Grants the audience targeted was not the audience that Pell Grants would affect This targeting creates a more predictable outcome This aligns with Durkheim s view of punishment as class power and political interest are encompassed to win over more selective audiences so that a lawmaker s policy will have more certainty of getting adopted The factor that Page argues led to public anxiety is that criminals would get rewarded with a free college education whereas deserving young students would still have to pay full price leading to the threat of more crime for the purpose of having a free education while incarcerated This sparked resistance as other lawmakers such as Albert Wynn suggested that educating criminals would lead to significant decrease in crime Page defines penal populism as a shaming of criminals to visually show how justice had been done This can be seen throughout history with the 3 Strikes Rule Megan s Law chain gangs striped uniforms boot camps etc In the Pell Grant debates prisoners are defined very differently The opposition defines them as bad criminals incapable of rehabilitation who lied about the prison education s success whereas the defense defines them as needy students just like the lawabiding ones This matters because a student that wants to succeed deserves an education but a cheating criminal does not I would tell my colleagues that not all criminals want to commit more crimes as soon as they get out Many want to get their lives on track and get a steady job Being in prison takes away a lot of time to be productive and for those that genuinely want to get on track to success they should be awarded it James Wierman LSJ Reading Question Responses LSJ Midterm II Study Guide 11142014 The cost of this hidden tax that Braman refers to comes in the form of financial constraints on the families of the incarcerated Oftentimes the incarcerated is the financial provider as over two thirds of the incarcerated population was gainfully employed prior to arrest This means that other family members need to step in and drain their funds to get by Things like childcare eldercare bills repairs or even just help with everyday tasks as is the case with Kenny are all demanded of the families whose primary supporter has been removed Families are disrupted as the cash they transact and the services they perform are stripped when someone gets incarcerated The reciprocal effect primarily financial debilitates not only the current generation but future generations as well who do not get a large inheritance if they get one at all It also can compound debt as in the case of Edwina in which she had to take out a second mortgage just to provide for Kenny s family in his absence an issue that would not have been a problem had Kenny not been incarcerated The dilemma that Braman mentions is that families of the incarcerated are forced to shoulder the burdens that accompany the incarceration such as suffering significant material hardship and emotional strain or they can withdraw from their social commitments sacrificing the norms of trust and mutual responsibility that give meaning to their lives This is tragic as the very form of punishment meant to bring justice is in some instances bringing turmoil to families and forcing them to decide between loved ones or financial survival Absolutely mass incarceration is encouraging a societal decay as people are being ripped from their households leaving their family members left to cope and get over it This suggests that people are being coerced into withdrawing their care and concern for one another which as Braman states is the building blocks of social life itself This will ultimately lead to a morally deprived society James Wierman LSJ 200 Reading Question Responses LSJ Midterm II Study Guide 11142014 The difference between the criminal court model and the juvenile justice model is the first is offense driven while the second is offender driven The first follows all traditional proceedings with due process and keeps the protection of society at the forefront by allowing for punishment of all criminals The second forgoes these typical due process rights and supplants them with information about the offender s past and in uences They differ because juveniles are more malleable and thus need rehabilitation to be prioritized The hybrid model that Kupchick describes is called the sequential justice model and it initiates with the offensebased evaluation through formal procedures and then transitions to offenderbased criteria informal proceedings and steps to rehabilitation It emerged because when it divided the court system up into the two parts it allowed for the due process rights not to be left out while still tailoring to the defendant s background and rehabilitative needs The court actors use a criminal model to illustrate the defendant as guilty or innocent throughout the due process system They have to stay as bipartisan as possible until they can look at things like offense severity and prior record and of course the need for rehabilitation Rehabilitation is the primary goal in a case with a juvenile offender Juveniles should be treated in the court system as criminals regardless of upbringing or external influences The fact that they broke a law defines them as a criminal The line is drawn however when they have to be punished Typically the punishment is incarceration with the length depending on the crime but for juveniles who may not be fully developed mentally rehabilitation is the best reformative action to take James Wierman LSJ Reading Question Responses LSJ Midterm II Study Guide 11142014 Juveniles end up in adult jails in the state of Washington through a process of declination Declination dictates that if the juvenile s offense is serious enough the juvenile court can decline the case and then transfer it to an adult court thus explaining why juveniles end up in jail Whether a juvenile ends up in jail or not depends on a few factors How severe the charge is and if it warrants jail time what county heshe is in and if they allow it and what race they are blacks are overrepresented in the juvenile jail population One could argue that it is fine as different counties differ on factors including demographics and crime rates that would warrant more or less juveniles being incarcerated This could be problematic however as it makes it hard to enact any universal rules and regulations thus leading to confusion and ambiguity Juveniles should be held in juvenile detention centers prior to the case resolution because the transition to an adult jail should only be done when proper evidence is brought forward and the charge is given They should not because we have a guilty until proven innocent court system and no criminal should be treated better over another all are criminals Other than receiving more rehabilitation treatment juveniles should not be treated differently or else it will create massive discord in the prison system Any inequality will lead to fights and riots Washington state law should be changed by revising the declination charges and enacting the removal of the check the box option on job applications and housing records that states if the person has been arrested James Wierman LSJ Reading Question Responses LSJ Midterm II Study Guide 11142014 Santeria never formally institutionalized itself for a few reasons One it is based on oral traditions and its symbolism and meaning were only discovered through rituals and initiations It also had an unusually high amount of devotion to Catholic saints and hardly any to Jesus Christ or scripture and was thuds seen as pagan until about 60 years ago Catholicism however was more accommodating to the worshippers of orishas O Brien is pointing out the fact that the opposition that the Church of the Lukumi faced was not based on race Both the white upper class and black lower class Cubans rejected the religion Neither wanted to be associated with a bad public image and public embarrassment As antianimal cruelty beliefs became laws people were becoming very opposed to the Lukumi Church that regularly sacrificed animals most notably cutting off the heads of chickens More and more people grew opposed to the church that its lights were shut off and it was hit with zoning restrictions that required it to move Also the Catholic hierarchy asserted that it did not want animal sacrifice associated with a religion that was an offshoot of Catholicism Justice Brennan in the Sherbert vs Verner case set forth a two sided test for state vs religion claims The first is for the state to burden or restrict the church in any way it must have overwhelming support from the general public or compelling state interest Also it cannot be advanced by least restrictive means which is exemplified in the case as how South Carolina denied benefits and thus restricted Sherbert s religious freedom James Wierman LSJ 200 Reading Question Responses The distinction between belief and action was central to this case because each side had a compelling argument The church of Lukumi argued that it had a Constitutional right to freedom of religion and the practices that it entails while the legal side argued that animal safety and public health and wellness should never be jeopardized by religious practices Overall it came down to what argument the judge found most compelling This case illustrates how tensions can arise between the democratic process and the free exercise of civil rights because when there is compelling state interest in a matter exemplified by the public resentment of the animal sacrifice done by the church of Lukumi then there is reason for the government to step in and appease the majority However pleasing the majority as we see in this case oftentimes is at the expense of the minority s rights and freedoms This case does not set a precedent over how these conflictions should be handled It really is up to the judge and what arguments he finds most compelling and what possible resolution can implemented by least restrictive means So the confliction between public opinion and religious freedom is really casesensitive I think it was resolved in the correct way The ordinances set forth on the church were not outrageous and it satisfied the public perception In addition allowing the church of Lukumi to LSJ Midterm II Study Guide 11142014 perform animal sacrifices would not have been fair given that other religions Were and had been barred from the same practice in the past It upheld religious equality in the eyes of the government and appeased the public Only criticism is that the judge threw out the church s Constitutionality argument a little too early in my opinion
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