Types of Arguments
Precedent
Counter-Precedent
Distinguishing Precedent – Dictum (opinions written that are not part of ruling; persuasive but not binding)
Analogy
Deontological
“First Principles”
“Natural Law”
Kant’s Categorical Imperatives
Ad Hominen: attacking the source of an argument
Utilitarian
Consequentialist
Slippery Slope
Flood Gates
Teleological
Textual
Historical
Purposes of Punishment
Retribution
Definition: punishing because the defendant deserves it (deontological argument)
Advocates:
Kant: Penal law is a categorical imperative; should not punish UNLESS the individual has committed the crime; principle of equality: punishment should fit the crime
Stephen: It is morally right to hate criminals; punishment should give expression to that hatred; criminal justice is to righteous disapprobation as marriage is to (sexual) passion
Royal Commission: Citizens (rightly) feel revulsion for criminals (retribution); society needs to punish in order to maintain respect for the law (utilitarian argument supporting official retribution)
Durkheim: Criminal should suffer in proportion to his crime to atone for his injury to society (deontological argument); official punishment necessary to maintain social cohesion (utilitarian argument supporting official retribution)
Commentators:
Moore: Clarifies that retribution in its purest sense is the belief that the moral deserts of the offender is a sufficient reason for punishment; retributivists also believe that only the guilty should be punished.
Morris: punishment of criminals is morally right (“fair, just”) because they have upset the balance of benefit/burden of non-interference with other persons or their property; punishment restores the balance; FORGIVENESS could also reset the balance
Moore: Mixed theory; punishment is justified if and only if it achieves a net social gain AND defendant deserves it. But do people really believe that or are they really retributivists at heart?
Critics:
Bentham: punishment is mischief; it is evil (because it reduces the happiness of a human being)
Murphy: Criminality is economically based; many commit crimes because they have need or deprivation; society is responsible for placing them into this position of need and deprivation; thus, not fair for society to punish them for crime. There is no equilibrium to be restored. (Capitalist society also fosters greed, the other source of crime)
Mackie: Retribution is repaying evil with evil. Can’t be morally defended, simply feels right due to biology and sociology.
Deterrence
Definition: Punishment is justified because it reduces (discourages) crime later, primarily through fear of punishment in the future.
General
Specific
Advocates:
Bentham: Punishment is only justified if it augments the total happiness in the community by preventing future crime; it is not justified if it is groundless, inefficacious, unprofitable, or needless. A person will not commit a crime if the expected pain of the punishment exceeds the expected value, pleasure, or good of the act.
Posner agrees with Bentham
Commentators:
Andenaes: Deterrence works through the strengthening of moral inhibitions and creation of law abiding habits.
Robinson & Darley: Deterrence works through the creation and reinforcement of shared norms – “norm-nurturing.” Very dependent on the law remaining morally credible, which requires doing justice, which means only punishing those who deserve it, to the extent that they deserve it. (A form of “mixed theory:” effective deterrence depends on being true to the public’s sense of retribution)
Critics:
Kant: Should never punish someone just to serve the public good. Punishment should fit the crime, period.
Rehabilitation
Definition: “punishing” or pursuing other alternatives to improve a criminal’s character and outlook so that he or she will function in society without committing future crimes.
Similar to specific deterrence
Wouldn’t let person out of jail until rehabilitated, so pot
Knowledge: Simply aware that one’s conduct is of the required nature or that the prohibited result is practically certain to follow. May not want it to happen.
Common Law Willful Blindness: When the defendant is subjectively aware of a high probability of illegal conduct, and that defendant purposely contrived to avoid learning of the illegal conduct.
Equal to knowledge under common law
“Ostrich Instruction”
Model Penal Code Section 2.02(7): “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.” (subjective, not objective/reasonable person standard)
Recklessness: Conscious disregard for some risk; conscious risk creation. (subjective, specific to individual)
Negligence: Gross deviation from standard of care to avoid some substantial risk one was not aware of but should have been aware of (reasonable person standard).
Tort negligence (criminal negligence (above) would be considered gross negligence in tort)
MPC: When requisite mens rea not prescribed, recklessness is the default mens rea.
Common Law: When requisite mens rea not prescribed, knowledge is usually the default, sometimes recklessness (In FL, general intent crimes generally mean knowledge).
Elements of a Crime
Conduct = actus reus MPC S2.01
Culpability = mens rea MPC S2.02
Attendant Circumstances = miscellaneous
Result = harm caused or risked
Negate Defenses
Statute of Lim.
Jurisdiction and Venue
Mens Rea attaches to the first 5 (material elements)
