Criminal Law
Michael Simons
Spring 2011
Principles of Punishment
Utilitarian
· 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
Retributive
· 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
Sentencing
Types
· 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
Proportionality
· 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
Omission
· 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)
