WHY PUNISH?
Case: Queen v. Dudley and Stephens page 7
Lifeboat case – (why wasn’t the third eater prosecuted? He’s the snitch). They killed the weakest link, no drawing of lots. Death sentence commuted to six months.
Common Law: Necessity is never a defense against Murder. The Jury will not even hear the case.
MPC § 3.02(1) page 898: Any Necessity can be considered a valid defense if the JURY thinks that it is Justifiable, “choice of evils” [also MPC § 2.09 Duress p.896]
General Justifications of Punishment
1) Restrain and deter – the offender from causing further harm. Can be achieved in two ways: 1) incarceration(or execution) physically removes offender from being able to affect others. 2) it is hoped to likely affect the offender’s inclination to commit other crimes since the acts may lead to unpleasant consequences.
2) Reform – relevant even when offenders do not present a continuing danger. The process of punishment will make their lives and prospects better. Depends on two assumptions: 1) that we generally know how to reform offenders and can do so without compromising their legal rights; 2) we have and are willing to use the economic resources to bring about these results.
3) General Deterrence – considers effects on society in general rather than effects on offenders. Persons seeing and knowing others are punished from committing crimes, will be deterred from committing such offenses themselves
Bentham – Inverse relationship b/w the severity of punishment and its certainty: the more certain it is that a potential offender will be punished, the less severe the punishment has to be (to achieve the same deterrent effect).
Problems: what about those who commit crimes on impulse or who are excessive risk takers – those that calculate odds in ways that don’t echo the legislature’s thinking. Deterrence doesn’t work in a society where rational calculation doesn’t universally determine action.
4) Moral Impact – on society in general. Courts reinforce the values that those prohibitions represent. Punishment is society expressing – offender did something blameworthy, the act inexcusable, and the offended values deserve protection.
Problems: presupposes that a moral consensus
Backward and forward looking – it expresses values that have come to define our society, while reinforcing values is to anticipate the survival of those values in the future.
Retribution theory: Kant – eye for an eye (jus talonis), and guilt is the only factor
Murphy: questions Kant’s pov.
is guilt sufficient? why eye for eye?
this is based on a just and fair world – which we do not have
too rigid – where does public policy come in? Mitigating factors?
Is the criminal really morally less than society? Or did society not commit the crime out of fear (self-preservation – not better morals).
What about with multiple criminals?
Rehabilitation – Prisons through Modern Eyes – Menninger
Deterrence – Realizing Deterrence – andenaes
WHAT TO PUNISH?
Prenatal Delivery of Drugs
Johnson v. State page 14 Prenatal Delivery of Drugs (delivered through umbilical cord at the moment of birth before it is cut) as “Passing Controlled Substance to Minors” conviction overturned.
Example of the conviction being overturned due to ruling being both against the spirit and the intention of the statute. Constitutionally “void-for-vagueness” – forbids legislature delegating lawmaking to the courts. The prosecution was trying to move public policy.
Prostitution
People v. James, People v. McCray page 16 Discretion of the Judge to rule that it is better for society to show leniency “in the interests of justice” in releasing two first-time offending prostitutes despite a new statute demanding harsher punishment.
HOW SEVERELY TO PUNISH?
United States v. Bergman – committed several serious offenses. Retributive reasoning suggests whether one looks at the harm he intended or the harm caused – punishment is deserved. And the Utilitarian approach considerations of general deterrence require significant punishment. Should a fine have been taken more seriously then in this case? Set at whatever level imposes the same disutility on the Δ and thus yields the same deterrence?
Punishment and Desert
The Harris Case
Alternative Sentencing – Fairness- one idea is that they are made available disproportionately to those of advantages of class or wealth. May be viewed as leniency by the media with famous actors/actresses b/c they are able to pay a fine and get away with something they did. Freedom – involve greater form of freedom, maybe control over offenders is compromised. Political – what are the political obstacles? Punishment fit – what would constitute an appropriate alternative sentence for a given offender? What kind of information do we have to know? Grading punishment – do comparative judgements about seriousness of an offense reflect a value consensous? Or preference to one social or economic class over another?
Criticism – legislatures in setting penalties treat white cllar criminals more leniently than others. Judges and court identify white collar criminals as people with similar backgrounds and attitudes to themselves. Defenders of leniency argue that whit
ct), there must be a showing that the defendant made some conscious and volitional movement.
Act must be “volitional” – reflexes, convulsions, movements during sleep (should be documented and medical testimony), and conduct during hypnosis or resulting from hypnosis are not sufficient “acts” b/c they are not volitional. Criminal liability cannot ordinarily be based on movements made why the defendant was unconscious.
INVOLUNTARY ACTS
Unconsciousness – People v. Newton – Plane stops b/c captain suspects D has gun. Police and D begin to argue, D is shot in stomach and while unconscious still begins to struggle, the officer’s gun discharged, killing the officer instantly. D did not subject himself to criminal liability, the plane was not supposed to stop and he was unconscious. If Δ was at fault in causing unconsciousness, however, there is a sufficient act.
Exceptions – Aware of tendencies – if the person is aware of their tendencies to have such issues and undertakes a dangerous activity anyway, they may still be held responsible.
(People v. Decina)- epileptic was criminally liable for deaths due to accident caused by a seizure while driving when he knew he was prone to epileptic seizures. Seizure wasn’t culpable act; the culpable act was getting behind the wheel in the first place.
OMISSIONS:
Liability may be based upon a defendant’s failure to act only if Δ was under a legal duty to act; Defendant had the necessary knowledge; and It would have been possible for defendant to act.
Duty Requirement – (Jones v. United States) – man held criminally liable for allowing his friends to rape wife. There at are least four situations in which the failure to act may constitute a legal duty:
a statute imposes a duty – statutory obligation to file tax returns and report automobile accidents.
When one stands in a certain status relationship to another -parents have legal duty to their children.
A contractual duty – Δ under contractual duty to protect or care for others
One has voluntarily assumed the care of another and prevented others from rendering aid.
