Criminal Law
Ch. 1 Principles of Punishment
I.Theories of punishment
Utilitarianism and retribution are the most important tools we will use to study the criminal justice system. We have a duty to be able to explain why we are punishing people. There are two questions involved in how we distribute justice: (1) Whom do we punish? (2) How much punishment is appropriate? How do we distribute justice on a case-by-case basis?
1.Utilitarianism
Utilitarianism is forward-looking and tries to deter future bad conduct while increasing happiness and reducing pain. Utilitarians believe that both crime and punishment are evils to be avoided. A utilitarian doesn’t like punishment. Human beings must be characterized by seeking pleasure and avoiding pain. We must be able to do the calculations; we must be rational.
Forms of utilitarianism: (1) General deterrence – when you punish one person for a crime in order to send a message to society. (2) Specific deterrence – when you deter person X by punishing person X: (a) By incapacitation – you keep the person off the streets or (b) by intimidation – you make the person scared to do it again because they remember how unpleasant the experience was being punished the first time. (3) Rehabilitation – when you use the penal system to change the person such that they won’t want to do bad acts in the future; you diagnose the problem and then solve it.
2.Retributivism
“The punishment of a wrongdoer is justified because it is a deserved response to the wrongdoing.” You can’t be angry at someone unless you believe they have the capacity to choose to either do right or wrong. Retributivists focus on people having free choice or free will. The retributivist says that it is society’s duty to punish and that this duty is independent of the consequences or costs or benefits.
Forms of Retributivism: (1) Negative retribution (utilitarianism*) – utilitarians, except punishing an innocent person is never justified. (2) Positive retribution – pure retributivism: you must punish guilty people, and you must never punish an innocent person. (3) Assaultive – anger and hatred are morally right when directed at criminals. This is kind of a disguised utilitarianism: if people hate a criminal, they will institution private justice. So with the criminal justice system, we prevent vigilantism. This views a criminal as a worthless human being who deserves what they get. (4) Protective – Morris, and the classic modern retributive theory. The importance of the theory is that it views the criminal as having the right to be punished. (5) Victim vindication – we vindicate the victim’s moral rights by punishing the perpetrator.
Differences between the theories
Utilitarians don’t see punishment as inherently good; retributivists view punishment as inherently good and justifiable because there is a right and a duty to punish even if it doesn’t do any future good. Utilitarians sound like economists trying to come up with an empirical justification for punishment and talk about profit. Retributivists think as moralists do and talk about just deserts. Retributivism makes us look to our moral roots. Actually, some forms of retributivism turn out to be forms of utilitarianism.
It is plausible to argue as a utilitarian, given a particular situation, that punishing an innocent person would be the right thing to do. Is this enough to abandon utilitarianism? Could a retributivist punish an innocent person? Categorically: no. You may only punish a person who is guilty.
The Queen v. Dudley and Stephens (Who should be punished)– We will use Dudley and Stephens as an object lesson for the purpose of general deterrence. Even if Dudley and Stephens aren’t deterrable in their particular case, the utilitarian must still find they are a useful example to others. This case would send a message to be certain you are prepared when you go out on a boat
abs son, claims conditioned response defense.
Conditioned Response- an act or pattern of activity occurring so rapidly, so uniformly as to be automatic in response to a certain stimulus.
This is a viable defense separate from mental incapacity, but Utter has no evidence to prove that he was acting under an unconscious state.
Unconscious act is really no act at all. However, if you put yourself in that state, it isn’t a defense. There must be a voluntary act.
“Voluntary act” vs. “mens rea”-
mens rea- signifies the actor’s state of mind regarding the social harm of the offense
voluntary act- applies to the act that caused the social harm
Ex/ X shoots a bullet at a target and hits Y. Act was voluntary, but no guilty mind.
Omissions (Negative Acts)- Failure to act
1. General Principles
People v. Beardsley-Rule: Omission is defined as the neglect of a legal duty, rather than a merely moral duty. Beardsley had no legal duty to help Blanche.
5 situations in which a failure to act constitutes breach of legal duty:
1. Where a statute imposes a duty
2. Special relationship- Married, children, employer, etc.
3. Contractual duty- assisted living, guardian, etc
4. Voluntary assumption of care- you can’t try to help then stop and make it worse
5. Creation of a risk of harm to another- cause a car accident, have to make sure other person gets medical care
Distinguishing acts from omissions
Barber v. Superior Court- Doctor/patient duty. Doctors have a duty to act. Taking away the IV that nourished the patient is an omission of care.
