Earle Mack School of Law – Drexel University
Criminal Law – Spring 2009
THEORIES of PUNISHMENT
I. RETRIBUTIVISM: “Eye for an eye” – people are punished because they deserve it – typically involves a one-step process: if a person’s guilty, they should be punished, but it’s grounded in PROPORTIONALITY
A. 2 Sub-Categories
1. Negative Retributivism
2. Positive Retributivism – every guilty person should be punished
B. THEORY (Morally Blameworthiness)one
a. A person who chooses to do wrong deserves punishment b/c they are morally culpable.
b. Punishment should be imposed even if serves no utilitarian purpose.
c. Punishment cannot exceed the level of moral culpability of D. REQUIRES PREPORTIONALITY
i. No more than an eye, even if inflicting blindness would deter more offenders.
C. ANALYSIS POINTS
a. SEEKS TO PUNISH
i. People made moral willing choices
i. Those acting under duress or mentally ill.
i. Punishment makes up for injury to society.
i. What is proportional for bribery or theft?
ii. Proportionality is fluid, lies in eyes of beholder
iii. Ewing…stole golf clubs, 25-life without parole, 3 strike
i. One major advocate once said it is morally right for the public to hate criminals.
II. UTILITARIAN: believe that punishment of crimes serves a SOCIAL BENEFIT to society in general – the general object of law is to augment the “happiness” of the community
· Punishment is justified only when the social benefit outweighs the harm caused
A. PURPOSES of Utilitarian Punishment:
1. Specific Deterrence: the actual imposition of punishment creates fear in the individual that if he repeats the crime he’ll be punished
2. General Deterrence
a. Punishment is itself an evil b/c deliberately inflict pain on human being
b. Hurt criminals only if some “good” is achieved
c. The “good” is found in various social benefits to the law abiding public (mainly by preventing future harms)
d. There are 4 social benefits
e. Deterrence requires: THREAT
i. Law to threaten potential D with serious enough pen. to dissuade.
ii. Threat must be credible
iii. It is the THREAT and not the ACTUAL PUNISHMENT that brings about detterance.
iv. Looks to FUTURE TO JUSTIFY PUNISHMENT
C. Analysis Points:
a. General Deterrence (PUBLIC)
i. association between punishment and crime that may constrain them even where little chance of being caught.
ii. greater the temptation to commit and the smaller the chance of detection, the more severe the penalty should be.” P.35
b. Specific Deterrence (INDIVIDUAL)
i. Create fear in INDIVIDUAL to deter offender from repeating the act.
c. Incapacitation and other forms of risk management
i. prevent society from future harms by dangerous persons.
ii. Less drastic forms = parole, supervision, prohibitions (use of firearms, alcohol, associations with certain persons)
iii. Prevent recidivism
AND CHARACTERISTICS OF THE (D)”
2-Part Test to determine if condition meets statutory purpose
(1) The court must determine whether the sentencing judge imposed the conditions for permissible purposes
(2) Then it must determine whether the condition reasonably relates to the purposes
1.) People v. Du: store owner shot young girl in back of the head – sentenced only to probation (court notes it was in light of the “unusual circumstances”)
2.) U.S. v. Gementera: shaming is acceptable alternative punishment – “I stole mail, this is my punishment”
3.) Coker v. Georgia: death penalty for rape is excessive and unconstitutional
4.) Ewing v. CA: “3-Strikes Rule” – Ewing sentenced to min. 25 yrs without parole for stealing golf clubs because it was his 3rd felony offense
“actus” (voluntary physical movement) – “reus” (the harm that is done)
(D) not guilty unless his conduct actually included some “act”
*CL defines “act” to mean some bodily movement, whether voluntary or involuntary
(D) must perform the physical act for each element of crime that has actus reus component
*No liability for omission
§2.01: person is not guilty of an act or offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable
Distinguishes between “voluntary” and “involuntary”
Involuntary acts: reflexes or convulsions, movements while sleeping or unconscious, or any action not otherwise a product of the actor’s determination.
Possession may be treated as an “act”, if the possessor (1) knowingly procured or received the thing possessed or was (2) aware of his control thereof for (3) a sufficient period to have been able to terminate his possession
Important Distinctions: CL permits “involuntary” acts but no liability for “omission”;
I. In General:
· The actus reus of a crime requires a voluntary act (or omission) in commission of a crime that includes both the conduct and the harmful result