Ⅵ. Supplementary reading.
Criminal Punishment
Capital Punishment
The death penalty was widely accepted at the time the U.S. Constitution and the Bill of Rights were ratified. The only reference to capital punishment in the Constitution is found in the Fifth Amendment, which reads:“No person shall be held to answer for a capital, or otherwise infamous crimes, unless...”
In 1972, the Supreme Court handed down a decision in the death penalties cases of Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas. Each of the three defendants had been convicted and sentenced to death（Furman for murder, Jackson and Branch for rape）. In a long, confusing decision with nine separate opinions and no true majority position, five of the justices held that in the three cases before them, the death penalty was cruel and unusual. Justices Marshall and Brennan concluded that the death penalty was totally impermissible. The Chief Justices Powell, Rehnquist, and Blackmum dissented in separate opinions.
The Position ofthe Majority in the Furman Case
The majority of five did not hold that capital punishment was in and of itself cruel and unusual. They held that the way in which the punishment was inflicted on the three defendants in the cases before the Court was cruel and unusual. They also argued that the death penalty was so seldomly imposed that it was no longer a deterrent to crime and that when it was imposed, it was imposed in a discriminatory fashion. Justice Marshall 69 wrote:“It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of minority groups who are least able to voice their complaints against capital punishment. ”
Not only did each of the five majority justices file a separate opinion in the Furman case, but each of the four dissenting justices also wrote separate opinions.
The Death Penalty After Furman v. Georgia
The 5/4 decision of Furman v. Georgia invalidated the death penalty statutes of 41 states as well as legislation enacted by Congress. The U.S. Supreme Court pointed out that after Furman v. Georgia：
In response to that decision, roughly two-thirds of the States promptly redrafted their capital sentencing statutes in an effort to limit jury discretion and avoid arbitrary and inconsistent results. All of the new statutes provide for automatic appeal of death sentences. Most, such as Georgia's, require the reviewing court, to some extent at least, to determine whether, considering both the crime and the defendant, the sentence is disproportionate to that imposed in similar cases. Not every State has adopted such a procedure. In some States, such as Florida, the appellate court performs proportionality review despite the absence of a statutory requirement; in others, suchas California and Texas, it does not.
In 1976, the U.S. Supreme Court reviewed the new death penalty statutes of Georgia, Florida, and Texas. In the 1984 California death case of Pulley v. Harris, the U.S. Supreme Court quoted their 1976 Jurek v. Texas decision in affirming the death penalty procedure used by California：
Texas'capital sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be“wantonly”or“freakishly”imposed, it does not violate the Constitution. 70
By requiring the jury to find at least one special circumstance beyond a reasonable doubt, the statute limits the death sentence to a small sub-class of capital-eligible cases.
Standards to Guide Sentencing Deliberations in Capital Punishment Cases
The death penalty differs from other penalties that may be imposed because of its severity and because it is irrevocable. In Furman v. Georgia, the U.S. Supreme Court held that the death penalty“could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. ”
In the 1976 case of Gregg v. Georgia, the U.S. Supreme Court again held that the death penalty was not unconstitutionally“cruel and unusual”punishment. The Court pointed out that the use of the death penalty for murder“has a long history of acceptance both in the United States and in England”and that“it is apparent from the text of the Constitution that the existence of capital punishment was accepted by the Framers. ”
In the 1984 case of Pulley v. Harris, the U.S. Supreme Court reviewed the statute and procedures used by California in considering the death penalty. Harris had deliberately and ruthlessly killed two teenage boys by gunfire in order to steal their car to use in a bank robbery. After killing the boys, Harris finished eating the hamburgers the boys had been eating. After considering California's statutory special circumstances, the statutory list of relevant factors, and the procedures used in California, the U.S. Supreme Court held：
By requiring the jury to find at least one special circumstance beyond a reasonable doubt, the statute limits the death sentence to a small sub-class of capital-eligible cases.
Imprisonment as a Punishment
Under early Roman law, imprisonment was illegal as punishment and was used for detention only. Imprisonment is as old as the law of England, but only rarely did statutes in early England provide for imprisonment as punishment for crime.
The U.S. Supreme Court stated in 1970 that“a State has wide latitude in fixing the punishment for state crime. ”But a filthy, dirty prison or brutality within the prison can be held to be a violation of the Eighth Amendment“cruel and unusual punishment”clause. The following Supreme Court cases have to do with the use of imprisonment as a punishment.
Williams v. Illinois,399 U.S.235,90 S. Ct.2018
The defendant was convicted in Illinois of petty theft and received the maximum 71 sentence provided by state law:one year imprisonment and a$500 fine. The judgment of the court also provided that if at the end of the one-year sentence, the defendant could not pay the fine, he would“work off”the fine at the rate of five dollars per day. This provision was permitted by state law. The defendant showed that he was without funds and petitioned to be released at the end of the year so that he could get a job and pay the fine and court costs. The Supreme Court of Illinois rejected the petition and the Supreme Court of the United States reversed stating：
The mere fact that an indigent in a particular case may be imprisoned for a longer time than a non-indigent convicted of the same offense does not, of course, give rise to a violation of the Equal Protection Clause. Sentencing judges are vested with wide discretion in the exceedingly difficult task of determining the appropriate punishment in the countless variety of situations that appear. The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences.
The State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.
It is unnecessary for us to canvass the numerous alternatives to which the State by legislative enactment—or judges within the scope of their authority—may resort in order to avoid imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs. Appellant has suggested several plans, some of which are already utilized in some States, while others resemble those proposed by various studies. The State is free to choose from among the variety of solutions already proposed and, of course, it may devise new ones.
We conclude that when the aggregate imprisonment exceeds the maximum period fixed by the statute and results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability to pay, and accordingly, we vacate the judgment below.
Tate v. Short,401 U.S.395,91 S. Ct.668
The defendant accumulated fines of $425 on nine traffic offenses in Houston, Texas. The defendant showed that he was indigent, but he was required to satisfy the fines at the rate of five dollars per day by serving 85 days at a prison farm. In reversing the court order, the Supreme Court stated：
Our opinion in Williams stated the premise of this conclusion in saying that“the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status. ”Since Texas has legislated a“fine only”policy for traffic offenses, that statutory ceiling cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine. Imprisonment in such a case is not imposed to further any penal objectives of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose; the defendant cannot pay because he is indigent and his imprisonment, rather than aiding collection of the revenue, saddles the State with the cost of feeding and housing him for the period of his imprisonment.
In footnote 19 of the Williams case, the Court stated:“We wish to make clear that nothing in our decision today precludes imprisonment for willful refusal to pay a fine or court costs. ”Therefore, a person who has money or an income may be imprisoned for refusal to pay either a fine or court costs.
Forfeiture as a Punishment
The concept and use of forfeiture goes back to early English law. Seizing the property that was used to commit a crime is a strong deterrent to crime. Seizing the profits of crime is also a deterrent in crimes committed for profit.
Forfeiture was first used in custom violations, such as smuggling. In addition to the traditional criminal punishments of death and fines, the economic sanction of forfeiture was imposed with seizure of ships, implements, and the goods being smuggled.
Forfeiture not only punished the wrongdoer by depriving them of ships（or boats）, implements, and goods, but it also rewarded the king and government who benefited from the use and sale of these items.
The concept of forfeiture came to America with English common law. It was used over the years in various forms. During the period when beer and other alcoholic beverage were contraband（Prohibition）, forfeiture was used extensively to deter and discourage violations of the manufacture, sale, and use of illegal alcohol.
Federal statutes today authorize the forfeiture not only of contraband property, but also of instrumentalities used in narcotics, gambling, and untaxed alcohol and tobacco. For example, Section 55 of the Uniform Controlled Substance Act, which has 73 been adopted by many states and the federal government, provides for forfeiture not only of controlled substances in violation of the law, but also of all raw material, all vehicles—“used, or intended for use”—weapons, records and books, all property,“including money”and profits. Section of 55.5 of the act details forfeiture proceedings.
In 1980, Florida extended the use of forfeiture under the Florida Contraband Forfeiture Act, which permits the seizure and forfeiture of any instrumentality of a felony. Under this statute, the vehicle used by a burglar could be seized and forfeited;money used in any felony as well as items, such as a Rolex watch used by a drug trafficker to time his deliveries, may be seized and forfeited.
Cars, boats and planes that have been seized under Florida statutes and the statutes of other states and the federal government are often used by law enforcement agencies in their work. Under Florida's Forfeiture Act, municipalities cannot reduce the normal funding of their police agencies. Money obtained from forfeiture or the sale of goods is used to expand the ability of law enforcement agencies'capacities to fight crime.
The Internal Revenue Service also seizes property of persons charged or convicted of crimes under tax liens. As persons involved in marijuana, cocaine, and other narcotics often make huge profits without paying proper taxes, tax liens may be filed against them. Property belonged to these persons may be seized. Such property could include homes, furniture, cars, stereo equipment, video games, gems, and real estate. （Thomas J. Gardener, Criminal Law Principles and Cases）
Answer the following questions according to the passage you have just read.
1. What is the significance of the case Furman v. Georgia？
2. Was the capital punishment in and of itself cruel and unusual punishment according to the position of the majority opinion in Furman？
3. What influence did the decision of Furman bring to the death penalty statutes of most of the states？
4. Did the Framers of the U.S. Constitution accept the death penalty？
5. Was imprisonment legally used as punishment under early Roman law？
6. What happened in Williams v. Illinois? Was imprisonment used as a punishment？
7. What happened in Tate v. Short? Was imprisonment used as a punishment？
8. Under what circumstances can forfeiture be used as a punishment？
9. What kinds of punishment are used in the Criminal Law in China？
10. What is your opinion about the capital punishment？