CHAPTER 1: PURPOSE OF CRIMINAL PUNISHMENT
I. UTILITARIANISM/RETRIBUTIVISM
Must determine why some acts are criminal and others not.
For example, should we have a system of criminal punishment for defamation?
-Utilitarianism: cost/benefit analysis of future consequences
-yes: for specific and general deterrence
-no: already have civil liability
-Retributionism: deserved punishment of rational judgment (autonomy & responsibility)
-yes: the criminals intervene with autonomy of others
-no: free speech as a mitigating circumstance
II. NECESSITY KILLING
Queen v. Dudley and Stephens (12)
-Four crewmen are stranded at sea
-after seven days without food or water, prisoners suggested they draw lots (custom of the sea) to sacrifice a crewman to be eaten by the others, Brooks did not agree.
-Dudley, w/ assistance from Stephens, cut the killed the cabin boy.
-crew was rescued later and charged w/ murder
HOLDING: Prisoners were guilty of murder and sentenced to death (served 6 mos.)
-The law does not endorse the necessity killing defense in this case (slippery slope argument)
In Re A (15)
-Case of two newborn conjoined twins, Jodie and Mary
-Each was an individual, but they were joined at the hip
-Mary is the weaker twin; so, if doctors do not operate, both will die. If they do, Mary will die, but Jodie will live w/ 90+% chance of normal life
-hospital sought a declaration to operate, but the parents appealed against the order
HOLDING: For hospital. Necessity defense should be extended on a case by case basis and should apply to the case since there are conflicting duties to both patients.
Distinguish: In re A not likely to be a mistake since brought before a court before the action. No choice in who will die–>has to be Mary
A. SHOULD NECESSITY BE DEFENSE TO KILLING
Legal Issues
rvesting – you don’t have to kill a healthy person to get organs
Distinguish from Dudley–>usually get them from someone who is dead (Dudley didn’t have an alternative)
Distinguish from In re A–>taking no action will deprive one of autonomy – independence or freedom, as of the will or one’s actions
– It’s never justifiable on utilitarian grounds to take organs from a person
Coleridge’s Problems:
1. Who is to say if anyone should die? Arg for dudley: use objective approach
2. Who is to say who dies? Ut. Parker has no family, less chance of survival BUT Parker is a kid with longer to live
Ret: Dudley got them into the mess, doesn’t favor drawing lots,
Will law effect change in these situations? Arg. Probably not,
