Criminal Law
Professor Jacobs
Fall 2012
University of Florida Levin College of Law
CRIMINAL LAW OUTLINE
I. Just Punishment
Chapter 1: The Purposes and Limits of Punishment
A. An Introductory Problem
B. Utilitarianism and Retributivism
Utilitarian View of Punishment:
· Utilitarianism is a form of “consequentialism”, which in its pure form holds that the justification of a practice depends only on its consequences.
· Bygones are bygones and only future consequences are material to present decisions. Punishment is justifiable only by reference to the probable consequences of maintaining it as one of the devices of the social order.
· Forward looking.
Retributivism View of Punishment:
· Punishment is justified on the grounds that wrongdoing merits punishment.
· It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing.
· Backward looking.
UTILITARIAN THEORY OF PUNISHMENT
RETRIBUTIVISM THEORY OF PUNISHMENT
· Forward looking
· Believes that people are hedonistic and rational calculators
· Backward looking
· Believes that humans generally possess free will or free choice, and therefore may be justly blamed when they choose to violate society’s laws.
C. Utilitarian Punishment
1. The Utility Principle as a Limit on Punishment
According to Utilitarianism there are four cases in which punishment ought not to be inflicted;
Jeremy Bentham, The theory of Legislation:
One: Punishments Misapplied
· Punishments are misapplied wherever there is no real offence, or no evil.
Two: Inefficacious Punishments
· Punishments which have no power to produce an effect upon the will and prevent similar acts; for example punishing someone who acted without intent, by irresistible constraint, or inability of knowing the law.
Three: Superfluous Punishments
· Punishments are Superfluous when the same end can be obtained by means more mild-instruction, rewards, etc.
Four: Punishments Too Expensive
· If the evil of the punishment exceeds the evil of the offense.
2. Deterrence
General Deterrence: Punishing an offender in order to convince the general community to forego criminal conduct in the future.
Specific Deterrence: Punishing an offender in order to prevent future criminal conduct by that specific offender.
James Q. Wilson, Thinking About Crime
In order for Deterrence to be effective, the following rules must apply:
First Rule: The evil of the punishment must be made to exceed the advantage of the offense.
· The punishment must be more an object of dread than the offense is an object of desire.
Second Rule: The more deficient in certainty a punishment is, the severer it should be.
· The more likely it is that a criminal will get caught (certainty of punishment), the less severe the punishment should be.
· The less likely it is that a criminal will get caught (lower likelihood of punishment), the more severe the punishment should be, in order to deter.
Third Rule: Where two offenses are in conjunction, the greater offense ought to be subjected to severer punishment, in order that the delinquent may have a motive stop at the lesser.
· Example: If a man wants to rob another, and is willing to kill him in order to get the money, the murder must be punished more harshly than the robbery, in order to incentivize the criminal to stop at the lesser offense (the robbery).
Fourth Rule: The greater an offense is, the greater reason there is to hazard a severe punishment for the chance of preventing it.
· To apply great punishments to small offenses is to pay very dearly for the chance of escaping a slight evil. The greater the offense, the better the reason there is to punish it severely.
Anthony N. Doob & Cheryl Marie Webster, Sentence Severity and Crime: Accepting the Null Hypothesis
· Improving marginal deterrence would require that such people-currently inclined to offend-be persuaded not to offend because of the enhanced penalty. This practice is unlikely if the possible penalty is not part of their decision making process.
Louis Seidman, Soldiers, Martyrs, and Criminal Law: Utilitarianism and the Problem of Crime Control
· Punishment tends to be “front-loaded.” Fines, for example, cannot exceed the amount of money the defendant has, because at some point, increasing the theoretical size of the fine produces no increase in deterre
ty to “hurt him back.”
Two: Protective Retribution
· Punishment is not to hurt the wrongdoer but to secure a moral balance in society.
Three: Victim Vindication
· Punishment is a way to “right a wrong.”
H.J. McCloskey, A Non-Utilitarian Approach to Punishment
If the greatest good, or the greatest happiness of the greatest number of is the foundation of morality and justice of punishment (utilitarian POV), then this can lead to great injustices: suppose we can achieve deterrence by framing an innocent man, or suppose we can eliminate crimes such as car stealing and shoplifting by torturing and executing a few offenders…this would lead to an even greater injustice.
E. Criticisms of the Theories of Punishment
Criticisms of Utilitarianism
1. Deterrence
· Deterrence theory justifies using persons solely as a means to an end.
· Utilitarianism can justify the punishment of a person known to be innocent of wrongdoing.
2. Rehabilitation
· Critics doubt that criminals can be reformed. They argue that if family, school, and religion have failed, then prisons or psychiatric care will not succeed.
· The theory removes from punishment the concept of “desert”. When we cease to consider what the criminal deserves and consider only what will cure him, we have removed him from the sphere of justice altogether.
Criticisms of Retributivism
· Utilitarians argue that the intentional infliction of pain through punishment is senseless and even cruel if it does no good; and yet retributivists favor precisely that, the infliction of pain that need not result in future benefit.
· Utilitarians argue that retributivism glorifies anger and legitimizes hatred.
· Retributivism is irrational, because it is founded on emotions, such as anger, rather than on reason.
