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Wednesday, June 04, 2008

Poetic Justice Instantiated

Literally. Turns out a bunch of teens near Middlebury College trashed the former home of poet Robert Frost.

On December 28, a 17-year-old former Middlebury College employee decided to hold a party and gave a friend $100 to buy beer. Word spread. Up to 50 people descended on the farm, the revelry turning destructive after a chair broke and someone threw it into the fireplace. When it was over, windows, antique furniture and china had been broken, fire extinguishers discharged, and carpeting soiled with vomit and urine. Empty beer cans and drug paraphernalia were left behind. The damage was put at $10,600. Twenty-eight people -- all but two of them teenagers -- were charged, mostly with trespassing.

Now Frost's biographer, Jay Parini, will be teaching them Frost's poetry as part of their punishment. It's an unusual and creative form of what I call "guilt punishments," and discuss at length in this article from Vanderbilt LR in 2001. Unlike public shaming punishments, these guilt punishments can occur in relative privacy without any participation of the public; moreover, they prototypically are designed to induce some form of moral contrition by the defendants, many of whom will not have to face a permanent record if they complete the "diversion" conditions successfully.

Years ago, I endorsed guilt punishments -- as opposed to shaming punishments -- as a good retributivist alternative to incarceration. But in the last few years I have also worried about the kind of sentencing flexibility (and potential breach of rule of law values) needed to create an effective guilt punishment, such as the one suggested in this case in Middlebury. My tentative view, and it's only a rough sense at this point, is that the concern for reducing unwarranted sentencing disparities is enhanced in cases involving more severe punishments--such as incarceration.  But in truth it might be that this view is the product of a pragmatic compromise.  After all, there is no obvious logical relationship between the values promoted by a commitment to equal justice under the law and the degree of punishment.    I'm open to suggestions.
H/t: Andrew Epstein.

Posted by Administrators on June 4, 2008 at 12:22 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink


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As a poet, I just want to register my distress that studying poetry is now literally a form of punishment.

Posted by: Paul | Jun 5, 2008 12:48:17 PM

The punishment here seems designed to teach the social value of Frost's poetry ("Look at whose home you destroyed!"). Once the offenders internalize what was so offensive about breaking into Frost's home to ransack it, one would imagine that they would be deterred in the future. This punishment may be problematic precisely because it is likely to be effective; the lesson learned may be "I will never break into Robert Frost's home again" or "I will never break into the houses of famous dead poets again" or "I will respect the property of luminaries who have made valuable contributions to Western civilization". But the destruction of a living person's home would have been even more devastating, and no creative guilt punishment would have been available in the case of a victim who has few accomplishments. A broader respect for the property rights of others should be inculcated, which probably explains why the kids were also fined:

"Some will also have to pay for some of the damage, and most were ordered to perform community service in addition to the classroom sessions. The man who bought the beer is the only one who went to jail; he got three days behind bars."

Posted by: Oliphant | Jun 4, 2008 4:48:49 PM

"concern for reducing unwarranted sentencing disparities is enhanced in cases involving more severe punishments"
since there's so much more at stake, thinking empathetically of justice rendered.

Of "pragmatic compromise" - at least the process reveals and then discards any of the idealistic-based, therefore impractical, choices

"there is no obvious logical relationship between the values promoted by a commitment to equal justice under the law and the degree of punishment."
this is a great conclusion. In the end, of the purposes for punishment - which ought to prevail: deterrence, repentence/realization of wrongdoing, removal of threat, or some satisfaction for the interested parties (especially the victims)?

Thanks for this - much food for thought.

Posted by: TomG | Jun 4, 2008 5:20:19 AM

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