Hurd Criminal Law Spring 2013
Justifying Punishment
Death penalty appropriate: there exists crimes so offensive and morally reprehensible that retribution only equalizes with the death of the perpetrator; some perpetrators are beyond the bounds of rehabilitation; corrective justice for a deceased victim requires a comparable outcome; and/or there exists no social utility in maintain the life of society’s worst offenders.
Death penalty inappropriate: there may always exist a social utility (deterrence/cost-benefit analysis) in life imprisonment over capital punishment; crime as a disease would dictate that rehabilitation is always achievable, only being dependent upon the amount of societal effort required; and/or corrective justice may weigh in favor of an eye-for-an-eye but the loss of the perpetrator will never fill the void left by the victim’s death.
Legally, capital punishment is allowed/fitting if a civilized society entrusts law & order in a criminal justice system that has a monopoly on violence to every degree.
I. Utilitarian Theory of Punishment
Punishment is legitimate if & only if (iff) it advances the interests (utility) of society as a whole, in terms of the greatest amount of good for the greatest share of society (net gain). Deterrence aspects: incarceration, specific deterrence (specifically offending actor only), and general deterrence (making example of D to other possible actors). Vigilantism is prevented by punishing actor more than maybe even deserved, tempering the harmed party. Moral indignation is expressed.
a. Pure Utilitarian Theory – would punish all even if not deserving and/or excessive punishment for the advancement/enhancement of net utility.
Problems:
i. lacks an internal mechanism to prevent over-punishment; and
ii. undeserved punishment (punishing the innocent/over-punishing the guilty)
Questions:
i. Punishment can create a gain in social utility by provided decentives against harmful behavior (incentives to behave better) with the knowledge that there exists a system to hold actors accountable for their harmful acts.
ii. Theorists would believe the system should bear the burden of proof on the deterrent effect of punishment because the theory rest on a social utility found in making society net better than without the punishment; it is fair to say that deterrence is a chiefly sought-after element.
iii. The cost of the death penalty should be one criterion in accessing if capital punishment enhances social utility, but it will be difficult b/c it then requires placing a cost on human life.
iv. The principal problems with a utilitarian approach are punishing the innocent/over-punishment, justified by the inevitable cases where they do enhance/further social good.
b. Mixed Theory – punishment is only justified iff both deserved + net utility enhancing/advancing.
Problems: risk of over-punishment and a possibility of under-punishment.
Questions:
i. Mixed theorists maintain punishment is justified iff “actually” deserved.
ii. Principal problems are that social utility can be enhanced in cases of undeserved punishment, even though not pursued, and still over-punishment is available to those guilty.
II. Corrective Justice Theory of Punishment
Punishment is legitimate iff it makes the victim whole, undoing the harm and arousing a vindication feeling to the victim (subjective). The goal is to hit the indifference curve b/t the preceding harm & damages where a victim is compensated to a point of inconsequence to actually being injured.
Problems include 2 main facets:
i. the subjective version –
a. secondary victim pool may require extreme/nonexistent punishment;
b. victim may not seek any punishment (under-punishment);
c. deterrence suffers, for example, if victim compensation is rationalized away by the perpetrator in the interest of continuing the harmful behavior; and
d. no making-whole action available regarding murder
ii. the objective version – there exists a collapse into retributivism
Questions:
i. Corrective justice bases justified punishment on correcting the specific harm done.
ii. This is an uncomfortable justification of capital punishment b/c vigilantism is not prevented if the victim wants death for the perpetrator and
a. subjectively, how expansive should the victim pool be to determine the appropriate level of correction sought b/c there can exist many who are harmed and objectively, we are just basing the penalty to match the offense on the victim
b. Principal problems with each version are extreme/nonexistent punishment or otherwise subjective punishment and retributivism, respectively.
III. Rehabilitation Theory of Punishment
Punishment is legitimate iff it would benefit the perpetrator of the crime (moral character redesign), no emphasis on social utility. Rehabilitation views crime as a social ill (disease) and needs to be treated.
Problems:
i. lacks internal check on quantity/quality of punishment;
ii. under/over-punishment;
iii. victim’s vindication is a non-factory; and
iv. indeterminate sentencing laws (unknown how long until actor is cured).
Questions:
i. Rehabilitationists justify punishment through a scientific/medical lens of making the perpetrator better by treatment.
ii. The principal problem with this theory is a subjective (unequal punishment for equal crimes) analysis discretely for each perpetrator to make them better, which may not correct the actual harm experienced by the victim.
IV. Retributive Justice of Punishment
Punishment is legitimate iff the punishment is deserved, matching the penalty to the offense. There is a just punishment argument of which punishment is required even when it will not benefit society: good within itself, a duty.
Problems: extraction of victim/societal input into punishment, presupposes that moral choice actually matters and that you can be held accountable for them.
Questions:
i. A retributivist maintains the punishment should match the crime, the good of punishment elevating the position of the victim in comparison to the perpetrator even if no net societal gain.
ii. Principal problem includes no moral indignation from society is accounted for nor the victim’s sense of compensation.
The prospects of error and inequality in the administration of punishments should affect justifications of punishment by being that actual mechanism to correct the wrongs experienced by vict
tutorily defined relationships)
2. Culpable causation of peril (i.e. caused the peril, increased its severity)
3. Innocent causation of peril (i.e. controls the instrumentality causing the harm)
4. Voluntary assumption of a responsibility to act (undertaking a rescue).
Actual Causation
A. But-For test is the most effective manner in determining if the harm would have occurred in the absence of the D’s act.
B. Problems with the test: fail the test
1. Independently sufficient causes
2. Coincidences
3. Omissions
Proximate Causation
Transferring intent applies in cases where the victim was not actually known/should have been known/foreseeable/intended/purposed to be harmed, including as the direct subject of the unreasonable risk/recklessness. For example, when within the same crime but not b/t or across crimes, i.e. intended to commit a battery on A and it actually occurs on B but not when intending to commit a battery on A and a false imprisonment results on B.
A. Arbitrary Space-Time Test (MINORITY RULE)
Test is an arbitrary temporal line test. For example, for murder, a victim must die w/in a year and one day for liability to be proximately connected.
B. The Harm w/in the Mental State Test (12 STATES ADHERE-MINORITY TEST IN 12 STATES)
D’s act X is a PC of harm Y iff Y is within the mental state required by the crime charged.
1. The test as applied to crimes requiring:
a. Negligence, Y w/in the class of risks that makes the activity negligence (should have been consciously aware)
b. Recklessness, Y w/in the class of risks consciously risking (conscious awareness of Y, substantial & unjustifiable risking)
c. Knowledge, belief that Y would come about (believed to a practical certainty would be brought about)
d. Purpose, conscious object to bring Y about
2. Problems with this test:
a. description problem, limits the harms to only those w/in the mental state test
b. intervening actors problem, does not account for the fact that free-intervening actors break causal chains
c. redundancy problem, mens rea analysis is partially preempted by this PC analysis
d. contradicts thin-skull Ps rule
C. The Foreseeability Test (NOT MAJORITY RULE IN CRIMLAW BUT HIGHEST MINORITY TEST)
D’s act X is a PC of harm Y iff it was w/in the type of harms reasonably foreseeable as a result of doing X
1. Test differs from the harm-w/in-the-mental state test b/c is more objective but extends criminal liability beyond just the mental state as dictated by the crime charged, relying more on a reasonable person standard for what harms could derive from D’s act/conduct.
2. Problems with the test
a. description problem, more details are analyzed, making it less foreseeable from actor-to-actor
b. intervening actors problem, does not account for free-intervening actors breaking causal chains even if the resulting harm it still foreseeable by the original actor (D)
c. redundancy problem,
d. other problems, vagueness
