· The useful purposes that punishment serves
· Looks forwardà punishment is justified on the basis of the supposed benefits that will accrue from its imposition.
· We determine the harm and what benefit can occur from punishment
· In deciding whether to punish for a crime, what purpose would punishment serve? Is there a future benefit to be achieved through punishment?
· Laws should augment the total happiness of the community. Punishment should only be admitted when it serves to exclude some greater evil.
In the following cases punishment should not be inflicted:
Where it is groundless and there is no mischief for it to prevent
Where it is inefficacious and will not prevent the mischief
Where it is unprofitable or too expensive
Where it is needless
Four Utilitarian Purposes of Punishment:
General deterrence – knowledge that punishment will follow deters people from committing crimes.
Individual/Specific deterrence – punishment creates fear in the offender that if he repeats his act, he will be punished again. Here, a penalty should be severe enough to outweigh in his mind the benefits of the crime.
Incapacitation – imprisonment puts criminals out of general circulation and physically prevents them from acting upon their destructive tendencies.
Reform – punishment may attempt to reform the criminal so his desire to commit crimes will be lessened and so that he can function in society without destructive tendencies.
Punishment is justified because people who commit crimes deserve to be punished. The justification is found in the prior wrongdoing.
Moral culpability of an offender + crime prevention = gives society a duty to punish.
Negative retributivists – choice. Only call someone a criminal if it is clear that the person has made a bad choice in their life to do something harmful. If there is no evidence that a person made a bad choice, then they should not be punished even if it would save the world.
Positive retributivists – must always punish every guilty person always.
Assaultive – deters private vengeance and sends symbolic message of general deterrence.
Protective – a just society has a right to punish culpable wrongdoers and criminals have right to be punished, restoring moral equilibrium between criminal and greater society.
Victim-oriented – reaffirms the value of victim and restores equilibrium between criminal and victim
Queen v. Dudley and Stephens – Sailors are shipwrecked. Dudley suggests they draw lots to see who will be sacrificed for the crew to eat. Parker is not consulted about drawing lots. They pick Parker because he’s very ill from drinking the sea water. . Dudley and Stephens decide that they don’t need Brooks and on day 21 Dudley kills Parker and all three survive by eating Parker. Day 25 they are rescued. They go back to England and get thrown into jail and charged with murder.
First question – are Dudley and Stevens actually guilty of a crime?
Arguments for No:
Policy argument that you’d rather have 3 alive and 1 dead, then 0 alive and 4 dead.
Customary for sailors to understand that within the sailing community this type of thing might happen.
State of mind defense – they were starving and thirsty and weren’t thinking rationally. Survival kicked in.
Arguments for Yes:
Who are the sailors to put a value on human life?
Parker would have died on his own anyway.
Second question – Assuming that they are all criminals, how much punishment would you give them?
· Will punishment deter future sailors from acting the way that Dudley did?
Dudley and Stephens Utilitarian v. Retributivist Chart
Did right thing =
Did wrong thing =
Still no punishment
Did wrong thing =
excessive fines imposed, nor cruel and unusual punishment inflicted.
Cruel and unusual punishment = all punishments which by their excessive length or severity are greatly disproportionate to the offense charged.
ü Coker v. Georgia – Does the Georgia statute punishment of death for rape violate the 8th Amendment?
Judge feels that a death sentence is grossly disproportionate and excessive for the crime of rape and is therefore barred under the 8th A.
Test for Non-Death Penalty Cases:
1. Gravity of the offense and the harshness of the penalty
2. The sentences imposed on other criminals in the same jurisdiction. What other crimes in this state received the same sentence as defendant did?
3. The sentences imposed for commission of the same crime in other jurisdictions. What would defendant have been sentenced to in other states?
ü Ewing v. California – Does the 8th Amend. prohibit the state of California from sentencing a repeat felon to a prison term of 25 years to life under the State’s “3 strikes and you’re out” law?
Δ stole $1200 worth of golf equipment. Because of Ewing’s priors and the 3 strikes law he was sentenced to 25 to life.
Court holds that the sentence does not violate the 8th Amend because it is not grossly disproportionate and it is justified by the State’s public safety interest in incapacitating and deterring repeat felons.
Test for Death Penalty Cases:
A capital punishment is excessive and unconstitutional if:
It makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless and needless imposition of pain and suffering; OR
If it is grossly out of proportion to the severity of the crime.