I must say, I have heard of people’s past crimes being brought during sentencing. Take former Speaker of the House Dennis Haskert. He was convicted of breaking banking laws. But all they could talk about were his past sexual molestations of boys. Now I don’t if they were allowed to do that. Or if they were just using it as a character assessment. But they did it.
But what about punishing someone for future crimes, i.e., crimes you didn’t even commit yet, but that (they assume) you have a high proclivity to do? I have heard some people say the registry of sex offenders is kind of that way. But that strictly speaking isn’t a punishment. So I don’t know if that would apply here.
But is it constitutional? And do judges (conservative/liberal) even agree on it. Punishing people for things they did in the past. And punishing them for things they didn’t even do yet.
FWIW, Hastert pled guilty to a structuring charge (related to his hush money scheme for keeping his victims quiet.) Part of the plea agreement involved admitting to his past criminal sexual behavior, which is why the judge was able to consider that behavior during sentencing.
Generally a judge can take into consideration anything he or she wants in consideration of sentencing except for improper factors like race. Of course, the judge cannot give you more than the maximum penalty for the crime.
So, let’s say that mopery carries up to 5 years in prison. The judge could say that he feels that if you were only in for 1 year, you would probably mope against, so it is 5 years for you. He couldn’t give you 6 years for any reason at all.
I think that would instead fall under the concept of “your character shows no sign of remorse or contrition, so therefore a harsher sentence is called for to emphasize the severity of the crime.” it may be a hair-splitting distinction to say it’s not about “I think you will offend again, so I’m punishing you for that” vs “your attitude does not convey to me that you will reform with just a standard length of sentence”.
The pre-crime arrests in Philip K Dick’s Minority Report are about psychic warnings of future crimes. But in the real world, to punish someone for crimes not yet committed, you would need some indication the crimes will likely be committed if not thwarted. Other than direct evidence of premeditation or planning, how would you do that? (What’s the crime for a conspiracy of one?)
The sex offender registry is the best example of what you ask. It simply says, “based on past history, we think you will repeat the offense” thus must register so your neighbours can be warned. In fact, it has turned into the modern Scarlet Letter, tarring people who have no evidence they will re-offend with as serious a collection of life-long punishments as can possibly meted out; prosecutors boost their statistics at the expense of those who cannot fight back. (I.e. threatening teenage girls with sex offender status for taking nude selfies)
Come to think of it, the factors for bail are likelihood of showing up and dangerousness to the community. So, in essence, you are punished for the possibility of future crimes before ever being convicted of any crime.
The registry of sex offenders is something you get onto because of something you did, from which they extrapolate the likelihood of you doing it again. The entire criminal justice system is based on the notion that if you did something you might do it again if you aren’t given a disincentive. (And other people, a deterrent by seeing what happens to people who do).
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The primary venue in which people are incarcerated or their activities curtailed because of something they might do is the psychiatric system. Which theoretically isn’t punishing the person, it’s “treating” them. Those of us who organize against forced treatment often argue that it should not be legal to do things (on an involuntary basis) to people who haven’t actually done anything antisocial / illegal / wrong, but just on the basis of what we might do.
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You are punished for attempted murder, not out of fear that you might complete a murder in the future, but because trying to kill someone is a crime in and of itself.
In Canada, people can be designated a “dangerous offender”. When that happens, it means that even if the crime they were convicted of carries a finite sentence, they can nonetheless be detained indefinitely.
There is another way (in Canada) to restrict convicts’ freedoms when they’ve reached the end of their sentence but have not been designated as a ‘dangerous offender’. The Canadian criminal code allows for strict conditions to be imposed on criminals when they are released from prison (i.e. not for parole but at the end of their sentence). This was done in an abortive way around the time Karla Homolka was to be released.
I believe the Three Strikes Law applies here. People are sentenced to life in prison because of their continued execution of certain crimes, which shows a high likelihood of lack of remorse for their crimes and high likelihood they would commit those same or similar crimes again in the future.
