Theories of Punishment

Question 1

What are the utilitarian justifications?

Answer 1

Deterrence
Incapacitation
Rehabilitation

Question 2

What is the non utilitarian justification?

Answer 2

Retribution

Question 3

What is retribution?

Answer 3

Payment owed to society/ punishment for the crime. All about blameworthiness.

Question 4

What are the problems of retribution?

Answer 4

Doesn’t account for underlying causes of why the criminal committed the crime. Culpability can be subjective (depends on judge weighing the culpability factors)

Question 5

What is a good thing about retribution?

Answer 5

Limiting principle - the punishment should fit the crime, and can’t be excessive. Other theories don’t have this:
Deterrence - benefits society to make an example of people
Rehab/ incapacitation - works better with long sentences
Utilitarianism is fine with unfair result for benefit of society

Question 6

What are the kinds of deterrence

Answer 6

General - making an example of someone so society at large learns their lesson

Specific - preventing one guy in particular from recidivism

Question 7

What are the problems of deterrence

Answer 7

• No one thinks they will get caught
• Assumes people are doing rational cost-benefit
• People have different risk tolerances
• Some people aren’t capable of understanding consequences
• Who actually knows the letter of the law

Question 8

What kind of crimes is deterrence effective for?

Answer 8

Crimes where people actually do a cost-benefit: traffic, white collar, economic

Question 9

What is incapacitation?

Answer 9

Locking someone up so they can’t do crime

Question 10

What are the problems of incapacitation?

Answer 10

• Punishment might not fit the crime
• Crime school
• Guy just does crime in jail instead of street
• Crime has a deep bench

Question 11

What is rehabilitation?

Answer 11

Taking someone out of bad environment and putting them in good environment so they will learn the error of their ways

Question 12

What are the problems of rehabilitation?

Answer 12

• Needs long sentences to ‘fix’ people
• Crime school
• Prison has big housing/employment effects that prevent people from getting back to normal life afterwards

Question 13

What is the expressive functions of punishment?

Answer 13

Educates ∆ and society about what we do and don’t tolerate

Question 14

Is civil commitment a punishment?

Answer 14

NO
Majority rule: civil commitment of potential released inmates based on sex offenses isn’t criminal punishment and isn’t double jeopardy

Question 15

How do we determine if a punishment violates the proportionality principle (no cruel and unusual)?

Answer 15

1. Categorical approach

2. Term of years approach

Question 16

What is the categorical approach to the proportionality principle?

Answer 16

Two prong test
1. Objective - Society’s Standards
Look at different states’ practices (sentencing statutes and conviction rates/ real sentences) to see if there is a national consensus for or against this type of sentencing

2. Subjective - Judge’s Opinion on Constitutionality
   Judge will try to find a justification within theories of punishment– if they can’t, it’s cruel and unusual

Question 17

What are the constitutional bars on punishment?

Answer 17

1. Juveniles can’t get the death penalty
2. Retarded adults can’t get the death penalty
3. Juveniles can’t get LWOP for non-homicide
4. Juveniles can’t get mandatory LWOP for homicide - must be meaningful POSSIBILITY of parole
5. ONLY murder and treason can get death penalty

Question 18

What is a mandatory minimum?

Answer 18

Statutory limit to the smallest possible sentence a judge can give a convicted defendant for an offense

Question 19

What is a sentencing guideline?

Answer 19

Written by judges, lawyers, academics – not that strict, just a starting point, legislature doesn’t approve them, just ‘advisory’

Supposed to fine tune, promote predictability, uniformity

Main considerations are gravity of offense/ criminal history

Question 20

What is the majority rule around any facts that might affect sentencing?

Answer 20

All facts that affect sentencing must be proven at trial beyond a reasonable doubt

NOT at sentencing hearing