Theories of Punishment - Rules of lenity/vagueness Flashcards
Retributivism
General
Positive
Negative
General
- We punish because people deserve punishment. Backwards looking ideology that focusses on the offenders past actions.
Positive
- Society has a moral duty to punish the blameworthy, lest society themselves become morally culpable.
- Punish as severely as we can
Negative
- Retributivism sets the upper limit to a permissible punishment, the offender should never be punished more than he deserves; however, he may be punished less than the upper limit if the state so chooses
Utilitarianism
Definition,
Cost benefit analysis
Forward looking. Punishment should be based on the good consequences that it will achieve in the future. There are three main benefits punishment can have for society:
- Deterrence,
- Rehabilitation, and
- Incapacitation
Cost benefit approach (people are rational actors that calculate). Perceived pain of punishment v. Benefit of the crime
Deterrence
General Deterrence
- Offender is punished with the hope that this will deter the general community - and potentially other criminal offender - to forego the criminal conduct in the future. Treats offender punishment as a means to achieving a net reduction in crime through detertrence.
Specific deterrence
- The punishment serves as a deterrence on the offenders future misconduct. Serves as a warning not to behave this way again.
Rehabilitation
Moores two theories of rehabilitation
- Achieved when criminals are made safe to return to the streets.
- Geared towards making US feel safer. Rehabilitation is good because it makes us better of if the treatment is completed.
- Achieved when criminals are released and can lead flourishing and succesful lives.
- Punishment is justified in the defendants own name.
Crime rates went up as a result of implementation in the 1960s.
Incapacitation
Imprisoning an offender prevents him from committing future crimes for the duration of his confinement.
- Benefits society because it takes criminals off the streets,
- Makes us feel safer in the knowledge that he cannot continue to commit crimes,
- Cost effective, prison is cheaper than combatting violent crime.
Selective incapacitation: target those most likely to commit crimes at higher rates.
The harm principle
Mill
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to PREVENT HARM TO OTHERS.
Criminal punishment should only be applied to prevent harm to others.
Victimless crimes: prostitution and drugs…
Legality Principle
No crime without law, no punishment without law
A person may not be punished UNLESS his conduct was defined as criminal BEFORE he acted:
- Criminal statutes should be understandable to a reasonable, law abiding person,
- Criminal statutes should be crafted so as not to delegate basic policy matters to policemen, judges, prosecutors and juries for resolution on an ad-hoc, subjective basis,
- Judicial interpretation of ambiguous statutory language should be resolved in favour of the defendant (rule of lenity).
Fair notice
- All individuals deserve a fair opportunity to conform their behaviour to the law. If there was no criminal statutes and the government could retroactively punish the individual, they would be punishing someone who at the time of the conduct was not breacking the law.
- Fair notice ENHANCES the deterent effect. There is NO DETERRENCE VALUE in a VAGUE law.
- Remember, we want to CONTROL
- Discretion of system actors,
- Police, judges, prosecutors
- Discretion of system actors,
- Remember, we want to CONTROL
Kolender v. Lawson
What are the constitutional limits on the criminal law?
- Notice,
- Vagueness, and
- Proportionality
A criminal statute or ordinance must establish minimum guidelines to govern law enforcement, lest the statute or ordinance permit a standardless sweep that allows policemen, prosecutors, or juries to pursue their own personal predilections
Rule of Lenity
Ambiguity concerning the ambit of criminal statutes should be resolved in favour of lenity. Why?
- Ensures that criminal statutes provide fair warning concernning conduct regarded as illegal and strikes the appropriate balance between the legislature, the prosecutor and the court in defining criminal liability.
- Modern usage. Doctrine comes in ONLY AS A LAST RESORT when all other tools of statutory interpretation fail to clarify the stautes meaning.
McBoyle v. United States
Strong, broad rule of lenity (old, passe)
An aeroplane is not a “motor vehicle” within the meaning of the national motor vehicle theft act.
- Court uses PLAIN MEANING of the word “motor vehicle.” A laymans understanding of this word is unlikely to include aircraft THUS there is no notice.
- Legislative history made no mention of aircraft in the congressional debates. Fair warning must be given IN A MANNER THAT THE COMMON WORLD will understand.
- The rule of lenity requires the ambiguous language to be read in favour of the defendant.
Yates v. United States
Commonly used modern rule of lenity.
Tangible object in S1519 refers to documents and other electronic documents, not fish.
Courts means of interpretation = CANONS of statutory interpretation + The Rule of Lenity.
- Noscitur a sociis. The meaning of the ambiguous words can be ascertained BY THE WORDS SURROUNDING IT.
- Ejusdem generis. If the word is part of a list of items, the other items in the list can limit the meaning of the ambiguous term.
- If ambiguity remains, THEY USE the rule of lenity.
v. Dissent
- Rule of lenity is only to be used as a tie breaker,
- Here the legislative history showed that abroad reading was intended.
Smith v. US
5-Year min. for anyone who during and in relation to drug trafficking USES or carries a firearm. Court interprets “uses” as exchanges as currency. This is a VERY GENEROUS INTERPRETATION that is inconsistent with McBoyle and to an extent Yates.
- A layman would not interpret the word uses in this manner; however:
- Court may be more eager to convict here because the crime is more serious,
- Court may be sending a message to Congress to write clearer laws, but gets them out of trouble this time.
- Example of MODERN USAGE of the rule of lenity, it is ONLY A LAST RESORT when all other tools of interpretation have been exhausted.
Vagueness
Two ways that a statute can be vague
- If it fails to provide notice to enable people to understand what sort of conduct is being prohibited, or
- It authorizes arbitrary and discriminatory enforcement.
See. City of Chicago v. Morales.
City of Chicago v. Morales
Issues
- Provided absolute discretion to police officers to determine WHAT CONSTITUTES LOITERING,
- When ordered to disperse, no information on HOW LONG they have to disperse for, or how long the must remain sepertated before they can meet up again,
- Triggering mechanism NO-APPARENT PURPOSE is wholly subjective upon the officer at the scene and whether he perceives there to be a purpose. Moreover, if their purpose was merely to enjoy the fresh air and make idle conversation, a police officer thinking this frivolous or suspecting ulterior motives had a license to target the group.
Dorothy Roberts = Disproportionate amount of blacks and hispanics prosecuted under the ordinance. ISSUE OF RACE DISCRIMINATION IN THE ENFORCEMENT OF VAGRANCY LAWS IN GENERAL.
