· A process – defines what you must and must not do
· Applies to all
· Enforceable sanctions
· Refers to those acts called ‘crimes’ – acts which compel “moral condemnation
· Legislatures deal with crimes prior to their commission
· Judiciaries ascertain guilt in individual cases
· Most intrusive power government is given
· Strongest governmental response to abuses
CLASS NOTES 8/26/09
Two General Frameworks for Understanding Punishment
Justifications for punishment
· Bentham – states that human well-being reduces to pain and pleasure. “The principle of utility” – actions are right or wrong in that they maximize pleasure and minimize pain. The goal of the criminal justice system as a whole should be to promote human well-being and minimize harms. Human beings are largely self-interested. Given that, the way to shape human behavior is rewards and punishments. Motivational force of pain is dependent on intensity, duration, certainty, and remoteness. (increase prison sentences or increase police presence)
What should be criminalized?
· There are certain things which shouldn’t be punished: no mischief to prevent, when punishment cannot act to prevent mischief, when it is unprofitable/expensive, and when needless.
o For Bentham, the suffering of the offender is a “cost” of punishment.
Four Methods of Harm Prevention
01. General deterrence – knowledge that punishment will follow crime which deters other from committing those crimes
02. Individual deterrence – one who is punished fears punishment again
03. Incapacitation/risk management – protect people from their own destructive tendencies
04. Reform – punishment may reform criminal so his desire to commit crime is lessened
· Not a general theory of morality, as utilitarianism is. – concerned only with punishment.
· Moore: Simply the view that morally culpable people who commit wrongs deserve to be punished. The fact that they deserve to be punishment is sufficient reason to punish him/her.
· Morris: In society certain rules result in mutual benefit. In order to enjoy that benefit, we must observe the burden of self-restraint. When someone violates those rules, they get the benefit and relieve themselves of the burden. This situation is unfair. Punishment is designed to extract that advantage and to nullify it.
· Hampton: When people commit crimes, they assert a moral majority over the victim. Punishment is designed to nullify this assertion of moral majority.
THE QUEEN v. DUDLEY AND STEPHENS
· Facts: Crew of seamen were cast out to sea and killed and ate a weak shipmate in order to survive without starving. It was likely that the entire crew would have died and it was apparent that no help was on the way.
· Was this murder? Yes – they intentionally killed the boy to eat him.
· Do Dudley and Stephens deserve to be punished?
One of Bentham’s provisions releases the men from culpability – punishment isn’t deserved if the offense occurs where those offenders’ hands are forced.
The punishment is potentially inefficacious and if you were not to eat the boy, punishment was quite remote (since they thought they would die anyway).
2. HOW MUCH (AND WHAT) PUNISHMENT SHOULD BE IMPOSED? Pg 50
PEOPLE v. SUPERIOR COURT (Du)
Facts: Soon Ja Du was convicted of voluntary manslaughter after shooting 15-year-old Latasha Harlins during a fight ensuing from Du’s suspicious that Harlins was in the process of stealing a bottle of orange juice from Du’s liquor store, at which she was working. The gun used in the killing was never used by Du before and was shown to have been altered so as to make the firing of the gun require less effort. In convicting Du of voluntary manslaughter,
the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offense.” – the greater the mischief, the greater the punishment.
1) Utilitarian Meaning: In a utilitarian system of criminal justice, punishment is proportional if it inflicts no more pain than is necessary to fulfill its deterrent goal.
(2) Retributive Meaning: Under retributive theory, punishment should be proportional to the harm caused on the present occasion, taking into consideration the actor’s degree of culpability for the conduct.
2. Constitutional principles
· 8th Amendment provides “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
COKER v. GEORGIA
Facts: Coker was convicted of rape and sentenced to death. Contends that the death penalty for rape violates the 8th Amendment proscription against cruel and unusual punishment.
· “A punishment is excessive if it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering, or is grossly out of proportion to the severity of the crime.”
Holding: The sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the 8th Amendment as cruel and unusual punishment.
Negative retributivism – Under the 8th Amendment, the proportionality principle states that the punishment for the crime cannot exceed the punishment given for the crime.