I. Theories of Punishment:
A) Four Question 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: COST BENEFIT ANALYSIS
(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
(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.
(a) Assumes equal opportunity.
(b) People may be trying to express something, rather than acting to gain something.
(c) Assumes that when people engage in rational calculations they will determine that crime doesn’t pay, look at costs of offending and look at opportunity costs. Crime just might pay.
C) Retributivism (No undeserved Punishment) – holds that you should only punish people if they have done something wrong and in proportion to the wrong committed. There are two limits (wrongdoing is necessary and punishment be commensurate with the crime). Further, it suggests that punishment is inherently a good thing, no matter what the outcome.
(a) Corrective view that punishes past behavior and expresses blame
(b) Unlike utilitarianism, want to inflict pain
(c) Limit: no undeserved punishment
(a) Crime is caused by the individual
(a) Implies blame
(b) When you blame one party, you say that the rest of society is innocent for that particular act.
(c) When society blames society is saying that we don’t condone this act.
4) Arguments for Retributivism:
(a) Intuitionist: feels right to punish people who do bad things
(i) Refutation: Innocent can get punished; only if you don’t punish anyone will this not be a problem. Either by punishing the innocent or not punishing at all you violate the notion of desert
(b) Contractarian: the criminal has broken the social contract, and by breaking the K 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.
1) Forward looking. It is means of preventing offenders from committing future crimes.
2) Assumptions behind incapacitation theory (Wilson):
(a) There is not another offender waiting to take the place of the individual being incapacitated.
(b) People who have offended in the past will offend again in the future. (People are repeat offenders)
(c) Incapacitation does not train these offenders in committing more crimes upon release.
(d) One assumption that Wilson does not talk about is that either crime does not take place in prison or that if it does, it does not matter. That is, preventing crime in prison is not part of the goal. Why would this be (crime in prison does not count)? We tend to think of incapacitation as offenders relinquishing their rights. This gives it some retributive elements. “Bearing the risk of crime is des
uress, necessity). Typically, the burden of proof is placed on the defendant to establish their excuse by at least a preponderance of the evidence (51%).
(Responsibility opposite burden than justification)
A) Actus Reus – The Defendant must have committed a voluntary act or failed to act under circumstances imposing a legal duty to act. The defendant’s act must be a conscious exercise of his will (e.g. conduct that is not the product of the actor’s determination, reflexive or convulsive, or acts performed while actor was asleep or unconscious unless there is forewarning are not voluntary acts). The rationale behind this requirement is that an involuntary act will not be deterred by punishment. The burden of proof falls to the prosecutor.
ACTUS REUS – Proved by Prosecution
1) Proctor v. State, (1918) (Mere thoughts alone are not an act). D charged under state statute prohibiting the keeping of a place with the intent to sell liquor. It is basic to the criminal justice system that criminal intent alone is insufficient to convict a person. Some sort of illegal act must be performed in furtherance of the intent. Here, all that Proctor did was “keep a place.” He did not actually perform any illegal activity there. Keeping a place is not illegal. There are considerable problems with punishing intent such as proving it and the criminal law is meant to shape conduct. Since no illegal act was performed by Proctor, the statute under which he was convicted is invalid and the conviction must be vacated. Rule: A criminal conviction requires an overt illegal act.
Jones v. United States, (1962) (Omissions – failure to act). Woman gives baby born out of wedlock to friend (Jones) in order to care for him (to not incur any embarrassment). Baby ends up being admitted to the hospital at ten months of age with severe malnutrition and bedsores. Baby dies shortly after admission. Can Jones be charged with involuntary manslaughter for the failure to act? The court held that the failure to act may constitute a breach of a legal duty and be held criminally liable in the following four situations: