Theories of Punishment Flashcards
What is “Crime”?
Conduct, if duly shown to have taken place, that incurs the formal and solemn pronouncement of the moral condemnation of the community.
SIXTH AMENDMENT
T
What are “Collateral Consequences”?
Consequences resulting from a criminal conviction but are “collateral” to the punishment imposed for it
What are the beneficial consequences of utilitarianism?
- General Deterrence
- Individual Deterrence
- Incapacitation (and other forms of risk management)
- Rehabilitation / Reform
“Retributivism”?
A policy or theory of criminal justice that advocates the punishment of criminals in retribution for the harm they have inflicted.
Argues that punishment is justified if it corrects the wrongful act.
Focuses on “just deserts”, “an eye for an eye”
“Utilitarianism”?
Actions are right if they are useful or for the benefit of a majority.
Argues that punishment is justified if it maximizes good consequences.
Act Utilitarianism
An act is right if and only if it results in at least as much overall well-being as any act the agent could have performed. In other words, in any situation, an agent acts rightly if she maximizes overall well-being, and wrongly if she does not.
Rule Utilitarianism
Instead of looking at the consequences of a particular act, rule utilitarianism says an action is right as it conforms to a rule that leads to the greatest good.
Model Penal Code (MPC)
A code that many states draw upon when writing their own criminal codes. NOT THE LAW IN ITSELF.
Proportionality
Punishment should fit the crime.
Punishment is proportionate if and only if its severity is commensurate to the seriousness of the crime, where seriousness is some function of the harm or wrong caused or risked and the offender’s culpability
“An Eye for An Eye”
If all punishments were the same, there would be no incentive to commit the lesser rather than the greater offense
Proportionality: Retributive Approach
The right amount of punishment is the amount that the offender deserves based on the offender’s moral blameworthiness (related to mental state) and the degree of harm inflicted by the crime (Kant’s Principle of Equality)
Proportionality: Utilitarian Approach
The right amount of punishment is the amount that is required to prevent crime such that the benefits to society outweigh the costs associated with the punishment (Bentham’s Rules of Proportionality)
Bentham’s Rules of Proportionality
(1) The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.
(2) The greater the mischief of the offence, the greater is the expense, which it may be worth while to be at, in the way of punishment.
(3) Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.
(4) The punishment should be adjusted in such manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it.
(5) The punishment ought in no case be more than what is necessary to bring it into conformity with the rules here given.
EITH AMMENDMENT
