Punishment

Question 1

Retributivism

Answer 1

Punish to degree of moral fault. Focus is moral culpability (desert).

Backward looking.

Question 2

Lex Talonis

Answer 2

Eye for an Eye / Vengeance focused–commonly mistaken for retributivism. (Retributivism is NOT this)

Question 3

Utilitarianism

Answer 3

Focus on social protection. Forward looking.

1. General Deterrence: discourage potential offenders.
2. Specific Deterrence: discourage individual D from committing crime in the future.

Question 4

Rehabilitation

Answer 4

Make criminal safe to return to society

Questionable effectiveness and tension w/ general deterrence.

Question 5

Incapacitation (Problems)

Answer 5

1. Cost of incapacitation > cost of crime committed
2. Moral issues w/ predicting recidivism
3. False positives and overinclusiveness

Question 6

Mixed Theory

Answer 6

1. Utilitarian Aim

2. Retributive Cap

Question 7

Gementera

Answer 7

Facts:

1. D made to wear sandwich board (shaming)

BLL: shaming conditions in a sentence can be reasonably related tothe legitimate purpose of rehabilitation

Question 8

Jackson

Answer 8

Facts:

1. After being released from prison commits 4th robbery; sentenced to life in prison

BLL: selection of sentence within the statutory range is free of appelate review

Harshness of the Sentence:

1. Majority (Easterbrook): punishment reflects societal judgment about repeat offenders–>general deterrence
2. Minority (Posner): doesn’t match level of culpability; aging out suggests little utility

Question 9

Requirements for Punishment (LCP)

Answer 9

1. Legality
2. Culpability
3. Proportionality

Question 10

Legality (definition, requirements)

Answer 10

Definition: no punishment without law

Requirements:

1. Bars retroactivity
2. Bars vagueness (Morales)

Question 11

Vagueness (legality)

Answer 11

1. Laws must provide “fair warning” to citizens (awareness of what conduct is criminal and severity of penalty) (McBoyle)
2. Laws must avoid arbitrary and discriminatory enforcement (avoid vagueness–don’t want to give too much discretion to judge, jury, police)

Question 12

Mochan

Answer 12

Stands for conviction of common law crime even though the crime hasn’t been enacted into legislation. (this is NOT good law)

Question 13

McBoyle

Answer 13

Government needs to have clear law in place before it can convict someone of violating the law. (implicates rule of lenity)

Question 14

Morales

Answer 14

Facts:

1. Chicago anti-loitering statute meant to target gangs.
2. Language: “remain in any place with no apparent purpose”; “order to disperse)

BLL: Criminal statute is unconstitutionally vague on its face if it fails to give sufficient notice as to which conduct is prohibited and grants police absolute discretion in deciding when to enforce the statute; needs to be safe harbor

Dissent (Thomas): police need discretion to deal with this sort of activity

Question 15

Elements of Culpability

Answer 15

1. Actus Reus

2. Mens Rea