Principles Of Punishment Flashcards
What is the Utilitarian theory of punishment?
punishment serves useful societal function; justified b/c of societal benefit
Utilitarianism holds that the general object of all laws is to augment the total happiness of the community by excluding, as much as possible, everything that subtracts from happiness (i.e. everything that causes pain).
Are Utilitarians forward or backward thinking?
Forward Thinking!
Punishment is justified because its end benefits will be better.
Utilitarian
Define Special Deterrence
Deters a specific person.
Here, ∆ is punished in order to deter ∆ from future criminal activity.
Define General Deterrence
Deters community/society.
∆ is punished to send a message to others that crime does not pay. Those contemplating committing crimes and learning of threatened punishment will decide not to do so
Define Incapacitation
Physically prevents persons of dangerous disposition from acting; prevents offenders from reoffending
▪ Ex: imprisonment, probation/parole supervision, random drug tests, prohibition from use of alcohol or firearms, etc.
▪ Justified only to the extent that the sentencing authority can reliably predict the future dangerousness of offenders and then only if the predicted reduction in crime from the incapacitation o/w the hardships that will be imposed on those incarcerated and the economic costs of their incarceration.
▪ Incarcerating more persons for longer terms is sometimes justified on dual grounds:
- Specific Deterrence – incarcerated criminals cannot commit more crimes while imprisoned
- General Deterrence – likelihood of long prison sentences dissuade others from committing crimes
Define Reform/ Rehabilitation:
Criminal law can prevent future crime by reforming an individual by providing her with rehabilitation, employment skills, psychological aid, etc., so that she will not want or need to commit offenses in the future.
▪ May require indeterminate sentence for each criminal b/c the symptoms and cure would differ with each criminal.
▪ Incarceration is rarely imposed today for rehabilitative purposes. There was little proof that it worked.
When will a Utilitarian not justify punishment?
when it is :
1) Groundless/no mischief;
2) inefficacious;
3) unprofitable/too expensive;
4) needless mischief will cease without punishment.
What is the theory of Retributivism?
Retributivism – criminals deserve to be punished
Retributivists argue that punishment justified b/c ∆ deserves it. Thus, as long as a person has freely chosen to commit an offense, punishment is justified. To the extent that a person lacks free choice, punishment is morally wrong.
▪ Retributivist would not allow state to punish those who [mentally ill or duressed] had no (or little) choice.
▪ Would not allow criminal confinement based on prediction of future acts.
▪ Retributivism is backwards looking in that the justification is found in prior wrongdoing.
▪ Critics of retributivism have argued that it validates hatred and that there is no point in punishment if it does no good.
What is Negative Retribution?
It is morally wrong to punish an innocent person even if society would benefit from the action.
What is Positive Retribution?
Not only must an innocent person never be punished, but, affirmatively, one who is guilty of an offense must be punished.
What is Harm Based Retributivism?
Seeks to fit punishment in accordance with the gravity of the social harm inflicted on the community. Also takes into account culpability and morality, focus is on the harm.
What is Intent Based Retributivism?
The focus is on the intent and moral blameworthiness of the ∆. If his actions were not intentional, or he acted in ignorance, punishment should be lowered accordingly.
Thus the focus is on the actor, not the act.
People v. Du – (Liquor Store Shooting Over OJ) – Utilitarian Court Opinion
∆ convicted of voluntary manslaughter, sentenced to 10 years. Sentence was suspended and ∆ was placed on probation.
▪ There is presumption against probation in this case b/c firearm was used but presumption can be overcome if court finds the case to be UNUSUAL.
▪Case is unusual for three reasons –
(1) statute is aimed at criminals who arm themselves when they go out and commit crimes not shopkeepers who lawfully possess firearms for protection
(2) Du has no past criminal record
(3) Du participated in the crime under circumstances of great provocation, coercion and duress
– these reasons overcome statutory presumption against probation.
▪ Rule: Probation is a permissible punishment for voluntary manslaughter in unusual cases. Consider many factors.
▪ MPC §1.02 (2)(c)- General purpose of provisions governing sentencing and treatment of offenders are…to safeguard offenders against excessive, disproportionate or arbitrary punishment. . .
USA v. Gementera- (Punishment Proportionality; post office)
▪ Gementera stole people’s mail. Was told to wear a sign by mail office (shaming and rehabilitation).
Bentham Mill- Punishment is enough to deter conduct.
Kant- retributivist eye for an eye- punishment sufficient for stealing the mail.
United States v. Jackson – (Robbed bank after release from jail)
▪ Issue – is imposition of a life sentence permissible punishment for a career criminal.
▪ Holding – The imposition of life in prison is permissible punishment for career criminals. The statute reflects judgment that career criminals who persist in possessing weapons should be dealt with most severely.
