QUINNEY:
What is the ground upon which we stand, the ground upon which we act? The question, as with all related questions, is of far more interest to us as criminologists than any question about crime. What is importance in the study of crime is everything that happens before crime occurs. Thus,
the elementary ontological question of the nature of reality remains a pressing one for us. Everything else follows from our understanding--our stance--toward the question of reality.
1) What is it we.re trying to do with the CJ System?
2) Who do we protect?
3) What.s being enforced, and to what end?
4) On what does it all rest?
Reality: A 5-4 decision by the Supreme Court
QUESTION: DURKHEIM
-- Mechanical solidarity (united by shared values and common bonds)
-- Organic solidarity (mutual dependence on division of labor)
For DURKHEIM, law exhibits two main types of sanctions: Repressive & Restitutive.
REPRESSIVE LAW is associated with 1) the existence of strong and enduring social sentiments; its violation gives rise to sanctions that impinge upon the fortune, liberty and life
of the individuals, and also upon one's honor.
Since repressive law is diffuse, its existence is not dependent upon the existence of nay special judicial machninery, but rather
Durkheim sees it being enforced by the collective as a whole.
RESTITUTIVE LAW, On the other hand, is concerned with the adjustment of social relations
which arise from the differential division of labor. He distinguishes between POSITIVE and NEGATIVE Sanctions.
If, as Durkheim argued, societies become more complex and move toward an organic form of social solidarity as division of labor becomes more specialized, then we would expect social reactions to deviance to shift from punitive to restitutive.
Has this happened?
Why?
Amy Newman: 8th Amendment
Courts must show intent/culpability in treatment of prisons by staff
Estelle v Gamble (1976): Challenged medical care: DELIBERATE INDIFFERENCE established
the standard.
HELD: Deliberate indifference by prison personnel to a prisoner's serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment. Here, however, respondent's claims against Gray do not suggest such indifference, the allegations revealing that Gray and other medical personnel saw respondent on 17 occasions during a 3-month span and treated his injury and other problems. The failure to perform an X-ray or to use additional diagnostic techniques does not constitute cruel and unusual punishment but is at most medical
malpractice recognizable in the state courts. The question whether respondent has stated a constitutional claim against the other petitioners, the Director of the Department of Corrections and the warden of the prison, was not separately evaluated by the Court of Appeals and should be considered on remand. Pp. 101-108.
WILSON v. Seiter: (1971)
1. A prisoner claiming that the conditions of his confinement violate the Eighth Amendment must show a culpable state of mind on the part of prison officials. See, e.g., Whitley v. Albers, 475 U.S. 312, 319. Rhodes v. Chapman, 452 U.S. 337, distinguished. An intent requirement is implicit in that Amendment's ban on cruel and unusual punishment. Wilson's suggested distinction between "short-term" or "one-time" prison conditions (in which a state of mind requirement would apply) and "continuing" or "systemic" conditions (where official state of mind would be irrelevant) is rejected. Pp. 296-302.
2. The "deliberate indifference" standard applied in Estelle v. Gamble, 429 U.S. 97, 106, to claims involving medical care applies generally to prisoner challenges to conditions of confinement. There is no merit to respondents' contention that that standard should be applied only in cases involving personal, physical injury, and that a malice standard is appropriate in cases challenging conditions. As Whitley teaches, the "wantonness" of conduct depends not on its effect on the prisoner, but on the constraints facing the official. Pp. 302-304.
3. The Court of Appeals erred in failing to consider Wilson's claims under the "deliberate indifference" standard and applying instead a standard of "behavior marked by persistent malicious cruelty." It is possible that the error was harmless, since the court said that Wilson's affidavits established "[a]t best . . . negligence." Conceivably, however, the court would have reached a different disposition under the correct [p295] standard, and so the case is remanded for reconsideration on that basis. Pp. 304-306.
RHODES V CHAPMAN (1981)
Dana Priest: Secret prisons:
Intelligence conclusion: Not a good idea; secrecy not sustainable, and policy not ultimately
workable
USDOJ - Guidelines for the future:
Does the concept of restorative justice reflected in this document indicate retributive or
repressive justice?