Pain inflicted by punishment justifiable if and only if reduction (“cost & benefit analysis”)
Humans act hedonistically and rationally.
3 Forms (General Deterrence, Personal Deterrence, Reform)
“Free will” – “just deserts”
Forms (assaultive, protective, victim retribution)
Queen v. Dudley Stevens
Retributive (reasons for punishing Dudley) – everyone assumed to the risk of being a victim. But in this case, Dudley put more value on his own life – put himself above boy Parker. (moral balance of values)àDudley owes a debt to society – if all of society agrees to share a duty not to kill others.
Retributive (why it’s not wrong) – either it’s not morally wrong or there’s an excuse for morally wrong act (extreme duress: if they didn’t possess freedom of will, they weren’t under rational conditions to freely choose to do evil (lesser of two evils – not at all in your right state of mind = not operating under free choice, since there is none)
BUT, Dudley seems so organized and reasons out killing Parker. It looks calculated before that level of duress. What about Stevens? He rejects idea at first and then after days – he concedes to kill Parker. Maybe he would fit more closely in the defense of “duress”.
AND, Dudley put himself in this dangerous situation. So defense of duress wouldn’t apply to him.
Utilitarian (reasons for punishing Dudley) – so principle used by Dudley wouldn’t be applied for everyone (deterrence)
Utilitarian defense for exonerating – # of survivors v. death of Parker
Plus, won’t deter: you punish the insane – you’re sending message that you’re going to punish those who can’t reasonably comprehend their duties. Pointless!
Principle of Legality
“No crime without law, no punishment without law.”
Law should be clear:
1. Utilitarian: Deterrence – no one got the msg it is wrong, so how can they be deterred from doing it?
2. Retributivism: if you want people to agree to do the right thing, you have to tell them to do the right thing.
“mallum in se” – broad à must show cause in fa
ul and unlawful in terms of “loitering”.
Answer: give up small liberties to ensure public safety-perfectly harmless activities forbidden – if it has a risk of harm.
Rebuttal: But “order to disperse” is vague – for how long and how far should they disperse??
U.S. v. Morris
Gov.’t view: “intentionally” does not modify “prevent authorized use” because of punctuation that comes after “access”.
MPC 2.02 (4): When law defining an offense prescribes the kind of culpability that is sufficient for proving an offense, without distinguishing among the material elements, then it applies to EVERY element.
However, the comma in the Missouri statute of Morris’ case may be the “contrary purpose” that separates the elements.
a. Voluntary act required
e.g. MPC 2.01 definition
No voluntary act