CRIMINAL LAW with Professor Anders Kaye
5 Classic Conventional Theories of Punishment
These 4 are Utilitarian Theory
General Deterrence
Moral Influence
Incapacitation
Rehabilitation
Retribution
Payne
Yes
Yes
Yes
Yes
Yes
Secret Punishment
No
No
Yes
Yes
Yes
Innocent but Looks Guilty
Yes
Yes
No
No
No
Innocent but Dangerous
x
x
Yes
Yes
No
This course is about the violence people commit to each other
This course is also about the state punishing criminals, the state is violent to its citizens
Imprisonment is taking away a persons rights, exposing them to threats of physical violence, being in prison is being in jeopardy of attacks all the time
This course is how the law regulates the state’s use of violence against its citizens
Topic: When’s it justified (ok) for the state to inflict violence on (punish) its citizens?
Theory of General Deterrence
When doing so discourages people from committing crimes
It scares people from committing crimes by sending a message to society –> Utilitarian view
It brings about enough benefit to society as a whole (cost/benefit)
Specific Deterrence: Punishing the specific criminal himself to keep him from committing more crimes in the future
This theory sometimes punishes innocent people – counterintuitive – argumentative
Need to set level of degree of punishment high enough so that benefits of crime are outweighed by punishment
This theorys more concerned about sending out a message to society rather than ‘how bad’ the criminal is
Moral Influence – Educational form of punishment
Punishment will influence the values/norms that society abides by, norms/values that make us not want to commit crimes
Punishing the defender educates, shape and instills values on the rest of society
Most of us by default want to be good people which means we’re open to guidance from parents, teachers, peers, criminal justice system
Difference between Deterrence and MI? Not deterring people, but educating/shaping/constructing us so that we don’t want to commit crimes
Utilitarian theory of punishment
Under GD and MI, publicity is essential to support these theories
· Both theories are justified in punishing innocent people unfortunately, counter-intuitive result
· Justified to teach society on what they should / should not do. This is not using criminal law to scare us out of committing crimes
Incapacitation
Punishments justified when it incapacitates a person who might otherwise commit more crimes in the future – imprison the criminal
Costs outweigh the benefits to society by incapacitating criminal, this is good for society as a whole (ie. Someone in prison can’t shoot your sister)
Premised upon our ability to predict people who are genuinely dangerous – we are bad at predicting this, it appears that we are wrong more times than we are right
Rehabilitation
Most complex of the theories of punishment cause it involves 2 different ideals of rehabilitation that’re usually confused
Achieved when we make criminals safe to return to the streets
2) Seeks to rehabilitate offenders not just so they can be returned safely to the streets, but so they can lead flourishing and successful lives
· 3 Reasons why this wouldn’t work
o 1) It allocates scarce societal recources away from other, more deserving groups that want them (the poor, autistic children etc)
o 2) Paternalistic intentions are suspicious, criminals aren’t in the same class of society where paternalistic state interventions appropriate
o 3) Viewing punishment as a ‘treatment’ for the good of the criminal makes it a moral blindness that’s dangerous
· This theory sounds compassionate but consider outlandish ideas (ie. Labotomy)
· Problems: Crim may be beyond rehabilitation, un-willing to rehabilitate, may not be possible to rehab a crim
· Paternalistic & disrespectful way to treat crim, intrusive into privacy of offender
Retribution – Slippery theory
View that punishments justified by the moral culpability of those who receive it, moral culpability gives society the duty to punish
A retributivist punishes only cause the offender deserves it, it contrasts with utilitarian views that justify punishment of past offenses by the greater good of preventing future offenses
Contrasts with rehabilitative views where punishments justified by the reforming good it does the criminal
A states justified in punishing crim under this theory when they deserve it
How do you determine what crim ‘deserves’ punishment? Person deserves punishment when they do something bad & are responsible for doing it
Just concerned with individual, not concerned with benefits society
How should they be punished? How much should you punish them? It should be proportionate to their crime (ie. If they’re very bad then punish them a lot)
Irrational superstiton / vengence
Common and widespread way of thinking of punishment
Only one which always protects innocent people from punishment
Formula for a Crime
A + (R) + AC + MS
Hybrid Theory: 2 Things have to be true to punish someone: Retributive condition & Must show that theres Utilitarian benefit from punishing this person
Today’s modern theory
Act Element
An act is required
The act must be voluntary
Physical coercion? Involuntary
Threats / Commands? Voluntary cause you had a choice
Seizures / Reflex? Involuntary
Hypnotion? MPC (model penal code) Involuntary …. (It can be voluntary if you ask to be hypnotized, depends on the jurisdiction)
Unconsciousness? (ie. Newton case) Involuntary – deals with awareness of what you’re doing, law says humans can be on autopilot and unaware of their actions
Sleepwalking? (Note on Cogden case, Mother killed her daughter while she was asleep)
Elements
Act
Result
Attendent Circumstances
Mental State
Examples
A
(+R)
(+AC)
(+MS)
Selling Drugs
Sell Dr
(+MS)
Good Sam Statute
Fail to help
Cause some sort of harm
Grave danger, reasonable assistant, without danger to yourself
Knowledge
Murder
Some act
Cause death
Purpose / knowledge
Invol MS
“”
“”
“”
Reckless
Negligent Homicide
”
”
”
Negligent
Negligent homicide is least serious type of homicide
· To treat your failure to act a crime, prosecution has to show that you had a legal duty to act (ie. Jones v. U.S. case)
Parents have statutory duty to act, he / she can be liable for one of the above crimes (listed in chart above)
Special relationships create a duty to act (ie. Spouse, parental, ship captains have duty to passengers etc.)
3) Contractual legal duty (ie. Nursing home)
4) Assumed care, you voluntary care for someone and seclude them from the public so that someone else cannot care for them
Must show that the person was in need when you took them in, they were vulnerable
You have to seclude them
Jones v. U.S.
· Quite possible that D does not have legal duty because…
· Baby starved to death
· If this jurisdiction had good samaritan statute, she might have been convicted under this
· She probably did not have a statutory duty to act cause of her relationship to the child
· Did she have a special relationship? No, not according to the law. Parents have a special relationship, not friends or strangers
· Contractual duty? We don’t know for sure, need more facts. If she had a contractual contract then yes, but we don’t know. This was a chaotic random relationship. Most likely no.
· Assumed care? We don’t know, need more facts. Did she voluntarily care for child? Don’t know.
· Legal duties are interpreted narrowly and stingily so that we are not punishing innocent people
People v. Beardsley
Manslaughter charges
Is there a statutory duty to care for a lover? No
Assumed care? No, she wasn’t vulnerable / in need when he took her in, no facts that suggest that she was not in need of care
