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Criminal Law
Temple University School of Law
Strazzella, James A.

Ch. 2 The Justification of Punishment
Why Punish?


punishment is justified by the moral culpability of those who receive it because and only because the offender deserves it
can be considered the doctrine of legal revenge – to make wrongdoer suffer from retaliation even if there is no benefit to himself or others
If retribution is defined differently there can be more articulated reasons why retribution could be an appropriate standard by tying in morals
social cohesiveness can be promoted by forming a moral boundary where we punish just for the wrongness


justified to prevent the commission of future offenses
general deterrent: punishment deters potential offenders in the general community
specific deterrent: punishment of convicted defendant makes him less likely to engage in future offenses
Social cohesion: formal shaming to deter people from recommitting crimes and to deter others
Question of effectiveness: are people deterred by seeing punishment for similar offences (general deterrence)? Is public even aware of the punishment in various cases?
Ritter: deterrence will have an effect on crimes resulting from rational planning but not for crimes committed on frenzied emotional impulse
Dudley & Stephens: general deterrence to stop cannibalism in society
Two ways to increase the deterrence effect: (1) increase risk of conviction (more police officers); (2) increase severity of punishment

Rational-Actor model/ cost benefit analysis: Do potential offenders weight the costs and benefits of their actions and think about what the punishment would be?
both sentencing and convictions are too discretionary (celebrities, judges, jurisdictions, etc.)


To make criminals safe to return to interact with society
Another option is to make the criminal better so they can be productive in society
Debate on whether it has an effect on recidivism. To have an effect it requires a lot of money/resources


Action of detaining or depriving the offender to make it impossible for him to commit further crimes – incapacitation is vital to the protection of society
Collective incapacitation: impose identical sentence on all offenders of a specific crime
Selective incapacitation: individualized sentences based on predictions about a criminal’s likelihood of recidivism
incapacitation is very expensive and we are tapping out prison space
Ritter: incapacitation should last until the threat to society ends ; if the person has violent tendencies incapacitation is not sufficient to keep the offender from committing further crimes and the death penalty is justified


Facts: defendant killed lover in jealous rage and tried to kill himself; defendant pled guilty to murder
Issue: When a defendant commits first degree murder in an emotional frenzy and is unlikely to re-offend should the punishment by death or life imprisonment.
Holding: For first degree murder the death penalty should be imposed if it either deters others or if it is the only way to prevent them from committing future crimes.
Rationale: Judge evaluates the 4 justifications of punishment. Rejects retribution and rehabilitation. Chooses Life imprisonment because the death penalty is not necessary under deterrence for murders from a deliberate sordid motive and not necessary under restrain because the defendant was not a lurking menace (would not do further crimes)


f a crime
o Deterrence is not effective because you can’t deter if they don’t have control over their actions; retribution not effective because no moral wrong committed because no need for punishment; rehabilitation is not effective because there is nothing to change that wouldn’t make them do it again; incapacitation – if someone has involuntary acts that are harmful to society they may need medication or hospitalization but not jail
o Martin, Newton, and Jones in one rule: If you act voluntarily or if you fail to act and have a legal duty to do so and your actions cause a crime, then you are criminally liable for those actions.
o MARTIN v. STATE (AL 1944)
§ Facts: officers arrested at home already intoxicated and taken onto highway where he manifested drunken condition and was charged with public drunkenness
§ Issue: Can a person be convicted of public drunkenness if he his appearance in public was involuntary?
§ Holding: A person cannot be convicted of a crime if that person did not voluntarily carry out the act
§ Rationale: Judge discusses that the statute presupposes that the appearance in public is voluntary.
§ Class Notes: if it’s foreseeable that they will be taken into public then it’s still voluntary.
· example: People v. Decina: though involuntary, his epileptic fit was foreseeable
· See BAKER (Where involuntary action would otherwise be a defense to a strict liability crime, the choice to use non-essential equipment that later malfunctions does not qualify as a defense.)