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theories of punishment Flashcards

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1
Q

Retributive theories

A
  • Coherence between punishment and guilt in the sense of culpability
  • A crime can only be repaid with punishment if it has been committed freely - person is a subject
  • Crime is central not the offender
  • Absolute theory because punishment is imposed regardless
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2
Q

Why should people be punished according to retributive theories ?

A
  • Punishment is intrinsically good because its purifying
  • Restores the status quo ante
  • Restores the balance between benefits and burdens
  • Satisfying feelings of vengeance
  • Expresses moral disapproval
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3
Q

severity of punishment in retributive theories

A
  • Depends on the seriousness of the criminal act
  • Punishment lies on measure of guilt
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4
Q

positive vs negative retributive theories

A

positive = a crime should be repaid in full to the seriousness of the crime and to the extent of the guilt

negative = a crime can be repaid in full but that is not necessary
- harsh consequences of retrubutivisim are litigated by utilitarian
- technically a mixed theory bc it also has utalitarian elements

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5
Q

criticism of retributive theories

A
  • punishing offenders is an unverifiable dogma
  • punishment rarely has a purifying effect on the offender as they cannot easily re-integrate into society
  • the past cannot be undone so it is difficult to return to the original status quo
  • one wrong cannot be erased by another wrong
  • not all crimes create an advantage for the offender- e.g. attempts
  • some crimes are better described as putting the victim at a disadvantage
  • the need for revenge embodies something of the need of justice
  • contradicts the basic moral intuition that you shall not harm others
  • moral rejection should take place within the community not criminal law
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6
Q

utilitarian theories of punishment

A
  • culpability doesn’t matter
  • centred around whether the offender will act differently in the future
  • offender is the main focus
  • punishment is a measure to protect society
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7
Q

severity of punishment in utilitarian theories

A
  • crime is viewed as a social risk that should be controlled by means of punishment
  • punishment is justified when;
    • it actually prevents future crimes
    • subsidiarity = no instrument or lesser evil exists that has at least the same preventative effect
    • proportionality = it does not inflict more damage on the offender than would be inflicted on the victim if the crime were to remain unpunished
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8
Q

criticism of utilitarian theories

A
  • the realisation of prevention by punishment can hardly be measured in practice
  • disputed realisation of prevention by means of punishment
  • may be punishing innocent people
  • may be dehumanising since it views people as objects
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9
Q

punishment concerns - utilitarian

A
  • incapacitation
  • deterrence
  • social re-integration
  • strengthening of norms
  • prevention of taking justice into one’s hand by channelled state vengeance
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10
Q

mixed theories

A

1) retribution constitutes the general justification for punishment
- demands of retribution are mitigated through utilitarian considerations
- may decide not to inflict punishment on utilitarian grounds
- continental doctrine

2) prevention forms the general justification for punishment but excessive punishments are prevented by using criteria that are central to the framework of retribution
- only someone who has been found guilty of committing a crime can be punished
- punishment cannot be more severe than is proportional to the seriousness of the crime and culpability of the offender
- anglo-saxon doctrine

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11
Q

criticism of mixed theories

A
  • trying to unite two contradicting theories that clash
  • difficulty balancing the concepts
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12
Q

risk society

A
  • a phase of development of modern society in which the social, political, ecological and individual risks created by the momentum of innovation increasingly allude the control and protective institutions of industrial society
  • how the risks and hazards systematically produced as part of modernisation can be prevented
  • successor of the welfare state
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13
Q

impacts of risk management

A
  • may lead to over criminalisation
  • punishment creates order
  • increased political concern has had a significant impact on contemporary concept of crime
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14
Q

culture of control

A
  • emphasis is on the consequences of crime and how to contain and control them
  • re-emergence of punitive sanctioning
  • decline of rehabilitation ideal
  • fore-grounding of the victim
  • increased focus on prevention
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15
Q

consequences of culture of control

A
  • changed the culture that enlivens the structure of the justice system
    • E.g penal modalities like parol have become more security-minded instruments for crime control
    • E.g drug users committing drug related crimes are not seen as victims of poor social circumstance but as a risk to public security that needs to be controlled
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16
Q

legal paternalism

A

the state may limit people’s autonomy and right to self-determination as long as it is in their best interest

17
Q

principle of welfare

A
  • individual autonomy needs to be balanced against the state’s duty to maintain the social conditions that allow the flourishing of autonomy
  • this principle is dangerous because it may lead to political abuse
    • risk of discriminating and marginalising others
18
Q

harm principle

A

people should be allowed to do and say what they want unless their conduct is harmful or increases unreasonable risk of harm to others
- harm to self or safeguarding society’s moral values are not enough ground for intervention
- conduct has to be wrongful

19
Q

principle of individual autonomy

A
  • an individual’s capacity to be one’s own person, to govern oneself, to take action based on one’s own reflections
  • focuses on individual choice
  • building block for criminal liability
    • people should only be held liable for their voluntary behaviour
  • militates against legal paternalism
  • related to harm principle
20
Q

exclusionist version of harm principle

A
  • harm is the sole necessary ground for criminalisation
  • criminalisation is not permissible in order to prevent immoral/ offensive, but harmless conduct
21
Q

inclusionist version of harm principle

A
  • offence is a legitimate ground for criminalisation - limited to most serious cases
  • ## more central role should be given to moral wrongfulness
22
Q

harm prevention principle vs harmful conduct principle

A

HPP
- focuses on the consequences intended by the criminalisation itself
- if it is ineffective then no grounds for legislation
- may provide legitimate grounds for criminalisation without HCP being fulfilled

HCP
- focuses on the harmful consequences of the criminalised acts
- criminalisation of conduct is justified if its harmful
- doesn’t depend on preventative effects

23
Q

abstract endangerment offences

A

the statutory offence description prohibits conduct that is not harmful or poses any concrete risk, but conduct that creates danger only in the abstract
- e.g. drunks driving, speeding

24
Q

definition of harm

A

Feinberg
- twarthing, setting back or defeating of an interest
- interest = all things which one has at stake
- when one is harmed one or more of their interests are left in a worse state than before

simester and von Hirsch
- relate harm to an impairment of a person’s resources
- resources = longer terms means or capabilities that someone possesses
- the things that one can rely upon to sustain or enhance well being
- moral wrongfulness is a necessary condition for criminalisation
- defend negative version of legal moralism

25
Q

wrongfulness

A
  • harm must also be wrongful
  • concepts of wrongfulness
    • moral wrongfulness
      • plays a central role for legal moralists in guiding criminal policies
      • a harmful conduct that is not immoral should not be criminalised
    • political-legal wrongfulness
      • types of conduct that have an impact on a persons rights
      • wrongfulness is a necessary condition for criminalisation and harm principle must be satisfied
26
Q

public wrong

A
  • conduct harmful to the public as a whole
  • threatens polity institutions
    • E.g crimes against state security, social security fraud, tax evasion
  • public interest is directly harmed by generating social instability or creating serious unfairness in relation to fellow citizens

Duff
- wrongful harm done to individuals becomes public wrong when the community no longer perceives it as something that is only a private concern
- recognises it as an issue that belongs to the polity as a whole

27
Q

penal warfarism

A
28
Q

criminalising violations of morality: legal moralism

A
  • negative version - no moral wrongfulness = no criminalisation
  • Lord Devlin (1960, UK)
    • society’s well-being depends on its moral values that are essential for its structural framework
    • the main justification for penal legislation ought to lie in the violation of rights

come back to this

29
Q

remote harm

A
  • criminalises conduct that in itself is harmless but may create opportunities for serious harm in the future

prophylactic crimes
- the prohibited conduct may lead to harm only because of a subsequent autonomous act committed by another person independent person
- there should be some form of normative involvement between the act of the remote harm-doer and the harm that the other independent parties may cause
- conduct that affirmed the subsequent third party’s criminal actions
- e.g. advocacy and encouragement of crimes
- harm doer should have the intention of encouraging criminal behaviour in others

30
Q

doctrine of legal goods- Germany

A
  • any interest that does not qualify as a legal good cannot enjoy protection through criminal law
    • legal good = a good which a community recognises as being necessary for individual welfare
  • a criminal statute that aims to protect a legal good may be illegitimate if the norm is not necessary to achieve this end
  • plays an important role in the teleological interpretation of legal norms
  • systematic classification of the offences of the special part of the criminal code
  • internal constraint of criminalisation - theory claims to fulfil an inherently critical function by circumscribing the legislator’s freedom which conduct ought to be criminalised
31
Q

limitations of the theory of legal goods

A
  • developing a definition that can cover all legitimate criminal offences but avoids losing its critical edge by becoming overly broad
  • ## unclear scope of the context
32
Q

ultima ratio principle

A
  • criminal law should not be used when other legal means are sufficient to protect legitimate values
  • concern that criminal sanctioning may have a negative economic and societal effect
    criminalisation may be so counterproductive that it causes more harm than it can remedy
    because criminal sanctions are the most intrusive means of law enforcement they should only be used when this is in agreement with the requirements of Rechtsstaat and respecting the individual rights of citizens

Criminal law (10 decks)

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