I. TheJustification for Punishment
A. What theories of punishment generally justify the infliction of criminal punishment and stigma?
1. Retribution—Punishment is justified because the criminal deserves it; being guilty is necessary and sufficient to determine punishment. It is NOT:
a) about how much or what kind of punishment is deserved, but WHY it is deserved
b) not about revenge for victims; needs of society, prevention of crime
c) even if in a perfect society where crimes wouldn’t need to be prevented, people should still be punished
(1) In Analyzing whether someone should be punished retributivists have to answer:
(a) Is what the person did wrong? Is the person blameworthy? If the answer to both of these is yes, there should be punishment.
(b) When analyzing from a retributivist perspective—must consider how to determine what kind of punishment is deserved. Do you always punish everyone the same way for the same crime?
(i) Ex. If you punish a rich guy and a poor guy, and you fine them, should you fine the rich guy and the poor guy the same amount?
2. Consequentialist—seeks to maximize something (utilitarian-seeks to maximize pleasure and minimize pain); makes calculations to determine if punishment should be inflicted
a) Prevention of crime
(1) General Prevention—so that everyone commits less crime
(a) By fear (General Deterrence)
(b) By education
(c) By respect/habit—law instills norms; Counterarg below as to why even in calculations of a consequentialist, retributivist principles still must be considered:
(i) If the law has moral credibility (seen as a legitimate source of rules) then one is more likely to regard the law’s judgments about right and wrong actions as an appropriate input to one’s own moral thinking, thereby making one more likely to obey the law. The Q is—has the criminal law earned a reputation as an institution whose focus is morally condemnable conduct or is it about deterrents—if it is seen as focusing on deterrence, then moral credibility becomes less likely.
(ii) Key point: The criminal law’s power in nurturing societal norms and its power to have people defer to it is directly proportional to its moral credibility—to its reputation for criminalizing and punishing only that which deserves moral condemnation and for decriminalizing and not punishing that which does not.
(iii)Increasing the criminal law’s moral credibility requires that the public believes that the system’s overriding concern is doing justice. (distributing liability and punishment
fully deal with. This led, however, to punishment that was deemed appropriate for particular groups of offenders w/o any significant regard to the characters of the crimes that they commit (youth offenders, etc; but what if a youth offender commits a very heinous crime? Theories of Rehabilitation
(i) Paternalistic Theory—fixing them for their own good; It justifies punishment in the offender’s own name, even though it’s contrary to their own expressed wishes.
(a) This kind of theory can’t stand because:
(i) it allocates scarce societal resources away from more deserving groups that actually want them
(ii) if our country is about liberty, paternalism has to be regarded w/ suspicion
(iii) it lends to moral blindness that is dangerous.
(ii) The ideal achieved when we make criminals safe to return to the streets. This theory justifies punishment by appealing to how much better all of us (society) will be if treatment is completed because the streets will be much safer (it’s about cost effectiveness).
