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Criminal Law
St. Johns University School of Law
Simons, Michael A.

Criminal Law

Michael Simons

Spring 2011

Principles of Punishment


· Forward looking

· Prevent crime with minimal cost

o Minimal punishment

o Goal: increase overall human happiness

· Arguments:

o General deterrence

§ Deterring society in general

ú Cost of crime should outweigh the benefit

· Likelihood of getting arrested is the most effective deterrent, yet it is easier and less costly for legislatures to create a minor increase in deterrence by upping sentences

o Specific deterrence

§ Deterring the specific actor from repeating

o Incapacitation

§ Keeping the specific actor off the streets

o Rehabilitation

§ Reforming the actor’s behavior, character, or skills


· Backward looking

· Views

o Negative Retribution: desert allows punishment

o Positive Retribution: desert requires punishment

· Arguments

o Harm: injury caused

o Culpability: choice made

§ Blameworthiness (just deserts), free-will, victim vindication



· Indeterminate (NY)

o Court has discretion within broad legislative parameters

o Parole may be granted for good behavior

· Determinate

o Legislature sets a specified sentence, but may allow lower or higher if specific mitigating or aggravating circumstances are proven

o May be sentencing guidelines rather than exact sentences

o Parole boards do not exist

§ Defendant knows exactly how long they will be in jail for

· Alternatives

o Restorative

§ Victim-offender mediation

§ More often used with lesser crimes

o Shaming (Gementera)

§ Must be reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant

§ And proportional to the crime

ú Only as much punishment as reasonably necessary for deterrence and rehabilitation


· Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”

· Test (Coker):

o Punishment is cruel and unusual, thus unconstitutional, if…

o It makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain & suffering

§ The legislature must have a reasonable basis for believing that the sentence advances the goals of its criminal justice system in any substantial way (Ewing)

ú Thus, even if statistics prove the sentence does not in fact deter it can still be upheld as long as the legislature’s belief is reasonable

ú This gives great deference to the legislature

o Or, It is grossly out of proportion to the severity of the crime

§ Ex: the death penalty has been ruled cruel and unusual punishment for rape

§ Proof problems, prediction problems, freedom of thought, danger of punishing innocents, overdeterrence of cathartic relief (ex: journal writing), social unease


· A criminal failure to act

· In order for there to have been a punishable omission, there had to have been a legal duty (Jones)

o Types:

§ Statutorily imposed

§ Status relationships (Beardsley)

ú Parent, master, husband, etc.

§ Contractual duties

ú Babysitter, teacher, doctor, etc.

§ Voluntary assumption of the care of another and seclusion as to prevent others from rendering aid

§ Creation of the risk of harm to the other person

· There also must have been wherewithal

o Knowledge of the peril

o Ability to help

o Knowledge of the facts giving rise to the duty

· Good Samaritan Laws

o Punish failures to act, without an existing traditional legal duty

o Are symbolic and rarely enacted or enforced

o Pros: May deter the bystander effect (tendency of people on the street not to help when they believe someone else can help)

o Cons: Inhibits American sense of individual freedom and may overdeter (intervention may make matters worse sometimes)