Strazella – fall 2015 – CRIMINAL LAW OUTLINE
I. Justifications of Punishment – Why Punish?
i. Three Assertions:
1. Offender voluntarily committed a crime.
a. Punish because offender deserves it; has committed a crime.
2. Severity of punishment must be proportionate to wickedness of the offense.
a. Principle of Equality
i. Evil committed to another should be regarded as perpetrated on oneself; e.g., one who commits murder must die.
3. Punishment for crime is itself just or morally good.
a. “It is better that one man should die than that the whole people should perish.”
b. Society has a duty to punish.
Negative retributivism – only guilty may be punished. Necessary but not sufficient condition. Sets upper limit 2 permissible punishment. (limits severity). Issue is desert is elastic. It is hard 2 quantify and can be shaped by different arbitrary factors eg fear disgust racial bias.
Positive – guilt is sufficient condition 4 punishment
Immanuel kant: viewed utilitarianism sort of as the bartering of justice for lofty considerations. First find him guilty b4 such considerations for benefits of society be taken in2 account. Upheld right of retaliation (jus talionis). Whatever u do 2 another, u do 2 urself so be prepared 2 face music. (positive)
Moore: Offenders punished because they “deserve it.” Legal revenge. No concern for the future; nor care about satisfying victim’s vengeance or society’s preferences; the social good of expressing condemnation NOT a concern. Society merely has a duty to revenge against state wrongs.
ii. Arguments Against:
1. Two evils of moral wickedness and suffering do not make a right.
2. Abandons any serious attempt to provide moral justification for punishment,
3. Confuses principle of punishment with those of compensation to the victim.
4. Jeffrey murphy – It assumes a community of shared values and rules and the man who disobeys must be punished because as a rational man, sees that the rules benefit everyone and must be obeyed.
a. Most criminals are not rational in this sense. Most are alienated from the prevailing socio-economic structure and see no need for “paying a debt to society”.
b. Focuses on the advantage the criminal might have gained, instead of the wrongness of his act and the harm that he has done or tried to do.
5. Theory supposes individuals who constrain themselves from crime impose cost on themselves and as such criminals are free riders. Only makes sense if we view crime as desirable
iii. Arguments For:
1. Punishing restores the equilibrium of benefits and burdens.
a. Society takes on self-restraint by adhering to rules. The one who violates the rules gains an advantage over others and causes an unfair distribution of benefits and burdens.
a. It is morally right to hate criminals; criminal law sentences express this.
b. Rhode Island nightclub fire. “4 years for 100 people”.
c. Victim Impact Statements
i. Booth v. Maryland (1987); Eighth Amendment allows for death penalty when defendant’s actions are sufficiently blameworthy. These statements do not bear on defendant’s blameworthiness because he is unaware of victim characteristics
ii. Payne v.
i. Economic Approach
1. Everyone consciously or subconsciously calculates costs and benefits, even in the context of “crimes of passion”.
– prevent crime by threatening to unleash swift painful punishment on those who commit them.
– The magnitude of pain has 2 be greater than magnitude of pleasure from crime commission
ii. The Rational-Actor Model
1. Do Criminals Calculate?
a. Three Assumptions for Deterrence to Work (but are usually not met):
i. Potential offender must know of the rule.
ii. He must perceive the cost of violation as greater than the perceived benefit
iii. He must be able and willing to bring such knowledge to bear on his conduct decision at the time of the offense.
b. Certain criminals cannot calculate because their situations are a series of defaults, not choice.
c. some might think they may never get caught since there are so many cold cases out there. Plus some cases go on forever. Even such a severe punishment like the death penalty, numerous years and appeals can separate the day of sentencing from day of execution so punishment isn’t always swift