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Criminal Law
SUNY Buffalo Law School
Binder, Guyora

Binder, Fall 2006

I. Theories of Punishment:
A) Four Questions to ask when analyzing theories of punishment:
1) Temporal – Is the punishment to prevent future crimes or to punish past misconduct?
2) Causal – Does the theory of punishment assume that the crime was caused by the individual or social problems?
3) Expressive – Does the theory express blame for the proscribed act and actor?
4) Perception – What is the relationship between the criminal and the rest of society? Is the criminal part of society or excluded from society?
B) Utilitarianism(No Unnecessary Punishment) – says we should evaluate laws only on the future consequences… we are concerned with human happiness. It suggests that prima facie that punishment is a bad thing because it always causes pain. The reason to punish is to prevent future crime and the limit is to punish only if the pain is outweighed by the happiness it creates.
1) Purpose – threatening punishment creates an incentive to not commit crimes.
(a) Punishment is only worth doing if it creates benefits, and the cost to society isn’t too great.
(b) Utilitarianism doesn’t want to cause harm, just deter crime.
(c) Limit: no unnecessary punishment
2) Deterrence Justification:
(a) Punishment will stop rational choosers form choosing things that will not be to their ultimate benefit – assume that actors do a cost benefit analysis.
(b) The only way deterrence works is if people are aware of the punishment, the threat is credible, and those committing the crimes are calculating the costs and benefits of the crime, crime can’t pay.
3) Cause of Crime:
(a) Society causes crime, individual is understood through her background
4) Blame:
(a) Not interested in blame, just interested in results
(b) Get better results with certainty, than severity
(c) Kahan- people act as they see their neighbors acting “Broken Windows” effect, idea that people don’t commit crimes because of social pressures.
(d) When people hear that someone has been punished it is an expression of society’s disapproval.
5) Problems:
(a) Assumes equal opportunity.
(b) People may be trying to express something, rather than acting to gain somethi

t or not punishing at all you violate the notion of desert
(b) Contractarian: the criminal has broken the social contract, and by breaking the contract the criminal is receiving an unfair advantage over the rest of us
(i) Refutation: This holds as long as everyone got the same and fair shake from society in the first instance.
(c) Rather than justifying punishment, almost justifying offending
(d) Expressive: offender is saying that they are more important than the victim therefore, the argument is that when society is punishing the offender, it is a refutation to the false claim that the offender is worth more than other people.
(i) Refutation: society sends messages about what people are worth in many ways: schools, job opportunities, etc. Likelihood offenders will have been told that they are worth less than everybody else, become tough to make this argument.