Intro/Theories of Punishment Flashcards
Outline of Criminal Case
Government Investigation -> Grand Jury Indictment -> Preliminary Proceedings -> Motion to Dismiss -> Discovery -> Trial and Related Motions -> Sentencing -> Appeal -> Post-Conviction Review
Four Theories of Punishment
Retribution, Deterrence, Incapacitation, Rehabilitation
Utilitarian Theories of Punishment
(Last 3) Deterrence, Incapacitation, Rehabilitation
Utilitarian = Designed to benefit society more than they cost. In utilitarianism, the likely consequences determine the morality of the action.
Unlike retribution, we are trying to use punishment to achieve a positive societal outcome.
Retribution
Offenders should be punished in proportion to their crime.
Goal is punishment (not a utilitarian purpose). Focuses on the concept of proportionality… giving someone their just desserts. Also honors defendant’s agency. If Chad wants to keep engaging in barfights, he must be willing to be sent to jail every time.
Example: Fines can be used as form of retribution for financial crimes
Deterrence (2 Types)
General – punish offenders to dissuade the public at large from engaging in that crime
Specific – punish offender to dissuade that specific person from committing that crime again
Example: Harsher sentences / unpleasant consequences like license suspension for drunk drivers
Incapacitation
Prevents offenders from committing future crimes by removing them from society
Ex: a violent offender is sentenced to 25 years in prison to physically prevent them from committing further crimes
Rehabilitation
Helps offenders change their behavior and re-enter society as productive members
Goal is to address the root causes of crime to decrease recidivism rate
Ex: Drug court, addiction treatment, educational training programs
Rehab can imply that people have no free will, they’re just products of their environment.
Sources of Criminal Law
English Common Law (court created crimes) —>
Development of Statutory Schemes (common law crimes supplemented and replaced by statutes) —->
MPC (drafted in 20th Century to improve criminal codes)
How does MPC differ from Common Law?
MPC serves as a set of guidelines to help states define criminal acts and codify respective laws.
Major developments of MPC:
1. Removed judicial discretion in interpreting and creating criminal offenses
- Created analytical structure
a. Complete criminal code, integrated structure, with general principles and then definitions of crimes that build upon the general principles
b. Element analysis (analyze crime at elemental level and require mental states for each element). Replaces offense analysis from common law (intent applicable to whole crime)
c. Replaced confusing common law intent (e.g. “malice aforethought”) with clear terms: purpose, knowledge, recklessness, negligence. - MPC is more utilitarian focused, though addresses all theories
Principle of Legality
American legal system espouses principle of nullum crimin sine lege, nulla poena sina lege: “No crime without law, no punishment without law”
Essence of Principle of Legality + Essence of criminal law = RETROACTIVE CRIMINAL LAWMAKING IS PROHIBITED (per the Constitution, Art I Sec 9-10).
Cruel and unusual punishment is prohibited by 8th Am., and one cannot be deprived of life liberty and property w/o due process of law (5th Am. + 14th Am.).
Three Interrelated corollaries of Principle of Legality:
(1) criminal statutes should be understandable to ordinary law-abiding persons.
(2) criminal statutes should be crafted such that they do not “delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc basis,”
(3) The Lenity Doctrine.
Lenity Doctrine
Judicial interpretation of ambiguous statutes should be biased in favor of the accused, a concept known as the lenity doctrine.
Objections to Common Law Crime Creation (and in favor of Statutory Crimes)
- Notice Problem
- Discretion Problem
- Consistency/Uniformity Problem
- Separation of powers problem
- Democratic accountability problem
Notice Problem (and Hessick rebuttal)
Objection: Because a change to a common law crime can be announced and applied to a defendant in the same case, a defendant can be convicted for conduct that was not clearly forbidden at the time the defendant acted.
Rebuttal: In statutory schemes, prosecutors can similarly pursue. novel theories of criminality under vaguely worded statutes and rarely justify these; further, CL has restraints in that only crimes which exist in case law can be considered crimes.
Discretion problem
Objection: CL gives judges too much discretion
Rebuttal: CL requires both court and prosecutors to agree on what is a crime; difficult to see how judges have less discretion in statutory system.
Consistency/Uniformity Problem
Objection: CL crimes can be inconsistently applied
Rebuttal: Statutory crimes must be interpreted and bound by precedent just like CL, thus no evidence they are easier to understand/more likely to deter criminals
Separation of Powers Problem
Objection: Legislature is supposed to write law, not judiciary.
Rebuttal: Under CL, you need all three branches to operate, thus more checks and balances; and legislature can always overrule CL by passing laws.
Democratic Accountability Problem
Objection: Statutory sceme puts decisions in the hands of those democratically accountable (elected legislators)
Rebuttal: State judges are largely elected which provides democratic accountability
Potential benefits of CL beyond Hessick
Fills in gaps in statutes, judges are potentially better at drafting criminal law than legislators, CL reasoning is more flexible and adaptable than statutes (and can better account for individual circumstances)
