NCJ Number
39771
Journal
Southern California Law Review Volume: 50 Issue: 2 Dated: (JANUARY 1977) Pages: 215-270
Date Published
1977
Length
56 pages
Annotation
PROGRESS IN SEVERAL BIOMEDICAL TEHCNOLOGIES SUGGESTS THAT PROPENSITIES FOR CERTAIN TYPES OF ACTS NOW PUNISHABLE UNDER THE CRIMINAL LAW ARE CAPABLE OF BEING MODIFIED OR ELIMINATED.
Abstract
SUCH TERAPIES AS ELECTRONIC BRAIN STIMULATION, PHARMACOLOGICAL TREATMENT, AND PSYCHOSURGERY RAISE THE POSSIBILITY THAT A NUMBER OF ASSUMPTIONS INTEGRAL TO OUR CONCEPT OF CRIMINAL JUSTICE WILL GIVE WAY, INCLUDING THAT (1) THE MORAL JUSTIFICATION FOR PUNISHMENT REMAINS CONSTANT DURING A PRISONER'S CONFINEMENT; AND (2) AN OFFENDER'S IDENTITY REMAINS UNCHANGED THROUGHOUT THE SAME PERIOD. ANY SIGNIFICANT EROSION OF THESE ASSUMPTIONS NECESSARILY WEAKENS THE CONNECTION BETWEEN PUNISHMENT AND THE TRADITIONAL GOALS AND OBJECTIVES WHICH PUNISHMENT IS SUPPOSED TO SERVE. INSISTENCE BY COURT ON A CLOSE MEANS-ENDS FIT IN PRISON LAW CASES INVOLVING THE INFRINGEMENT OF PARTICULAR LIBERTIES, TOGETHER WITH INCREASED WILLINGNESS TO SCRUTINIZE PRISON SENTENCES THEMSELVES UNDER SUCH THEORIES AS CRUEL AND UNUSUAL PUNISHMENT, THERAPEUTIC INCARCERATION, AND A MORE STRINGENT CONSTRUCTION OF LEGISLATIVE INTENT, SUGGESTS THAT EROSION MAY GIVE BIRTH TO A CONSTITUTIONAL RIGHT TO RELEASE. EXISTING CHANNELS ARE NOT IDEALLY SUITED TO CONSIDER CLAIMS BASED ON SUCH A RELEASE RIGHT, AND NEW REMEDIES WILL BE NEEDED. THE CONTOURS OF SUCH A REMEDY HAVE BEEN SKETCHED. IT IS PROPOSED THAT RELEASE BE AVAILABLE AS A MATTER OF RIGHT, RATHER THAN DISCRETION, ONCE THE APPROPRIATE FACTUAL SHOWING HAS BEEN MADE. IN ORDER TO PROTECT AGAINST THE POSSIBILITY OF OVERREACHING BY PRISON OFFICIALS AND AS A FURTHER PROTECTION OF THE RIGHT TO REFUSE TREATMENT WHEN CONSENT HAS NOT BEEN FREELY AND KNOWINGLY GIVEN, THE RIGHT TO RELEASE WOULD BE PROTECTED BY CERTAIN PROCEDURAL PRESUMPTIONS AND INFERENCES. RECOGNITION OF A RELEASE RIGHT FOR ORGANICALLY REHABILITATED OFFENDERS IS CONSISTENT WITH THE VIEW THAT PUNISHMENT SHOULD SERVE REHABILITATIVE ENDS. AT THE SAME TIME, IT RECOGNIZES THAT PUNISHMENT RESPONDS TO INTERESTS OTHER THAN REHABILITATION AND ACCEPTS THE NECESSITY OF DETERMINING, IN EACH CASE, THE EXTENT TO WHICH OTHER INTERESTS MILITATE FOR OR AGAINST RELEASE. THE NEED TO DETERMINE MORE PRECISELY THE WEIGHT TO BE ASSIGNED SUCH NONREHABILITATIVE INTERESTS AS GENERAL DETERRENCE AND RETRIBUTION WILL CALL FOR GREATER ATTENTION BY COURTS AND LEGISLATURES TO THESE. (AUTHOR ABSTRACT)...ELW