This course explores the nature and evolution of criminal punishment, from the death penalty to imprisonment and beyond. Its approach is multidisciplinary in blending positive law, litigation strategy, criminology, sociology, history, and law & literature. We will notably focus on the retention of capital punishment and rise of mass incarceration in modern America, which have fueled vigorous social debates about crime, victimization, discrimination, race, and many other issues. In-depth comparisons with other Western democracies, which have abolished the death penalty and have far lower incarceration rates, will shed light on the United States’ distinctive historical evolution. This social context will provide foundation to understand competing sentencing principles, especially retribution, deterrence, incapacitation, proportionality, individualization, rehabilitation, and human rights rooted in dignity. While modern America has gravitated toward comparatively harsh practices, we will consider how it once was a trailblazer in introducing humane and rehabilitative approaches. To go further, we will analyze how litigators have strategically addressed sentencing principles in landmark cases by dissecting Supreme Court briefs and oral arguments, which will allow students to develop practical skills. We will equally explore the intersection of gender and criminal justice, from the decriminalization of homosexuality to the recriminalization of abortion in the United States. Throughout our course we will see how criminal justice is a microcosm of society and a window into a host of key questions. Because criminal punishment cannot be understood in a vacuum, the course will tie sentencing to the wider dynamics of criminal justice, including the role of legislators, judges, prosecutors, defense counsel, defendants, prisoners, victims, voters, the media, and social reformers. All of these actors shape criminal punishment in countless ways based on distinct expectations of what the penal system is or should be. Certain questions will arise recurrently in various contexts, such as institutional structures, socioeconomic inequality, race, humanity, and democracy.
