I. Why punish?
A. Utilitarianism
1. Basic principles
a. Pain inflicted by punishment is justifiable if, but ONLY if, it is expected to result in a reduction in pain of crime that would otherwise occur
i. Ex: Executing someone is justifiable if it will prevent more than one death
b. Punishment is justifiable if it prevent future harm
c. Criminals contemplate crime by weighing (conduct) vs. (benefits, risks, punishment)
2. Forms of utilitarianism
a. Deterrence (see below)
i. D is punished in order to convince the community to forego criminal conduct in the future
b. Rehabilitation (see below)
i. Reformation of the wrongdoer will prevent future crime
c. Incapacitation (see below)
B. Deterrence
1. Basic principles
a. D is punished in order to convince community to forego criminal conduct in the future
2. Forms of deterrence
a. General deterrence
i. Convinces whole community to forego future criminal conduct
ii. D’s punishment serves as an object lesson to the rest of the community
iii. D is used as a means to a desired end (net reduction in crime)
iv. Instills fear of punishment in would-be violators of the law
v. Habituates us to act lawfully (even in absence of fear of punishment)
b. Specific deterrence
i. D’s punishment is meant to deter future misconduct BY D HIMSELF
ii. Two forms
1. Incapacitation (see below)
a. D’s imprisonment prevents him from committing crimes in the outside society during period of segregation
2. Intimidation
a. D’s punishment reminds him that if he returns to a life of crime, he will experience MORE pain
c. Criticisms
i. Uses person SOLELY as means to an end
ii. Can justify the punishment of a person known to be innocent of wrongdoing
C. Rehabilitation
1. Basic principles
a. Reformation of the wrongdoer will prevent future crime
b. Considered punishment because does NOT require D’s consent
2. Criticisms
a. Removes element of what D deserves
b. NOT effective
c. NOT humane
d. NOT fair
D. Incapacitation
1. Basic principles
a. D’s imprisonment prevents him from committing crimes in the outside society during period of segregation
b. Least complicated, least studied, more important
c. Incapacitation vs. utilitarianism
i. To a utilitarian, punishment is unjustifiable in incapacitive grounds UNLESS D’s likely future anti-social behavior is expected to result in MORE pain in society than the pain inflicted on D and society
1. Costs of incarceration and the loss of D’s potential productivity in community by his lifetime imprisonment
2. Forms of incapacitation
a. Collective incapacitation
i. ALL people convicted of a designated offence would receive the same sentence
b. Selective incapacitation
i. Individualized sentences based on predictions that particular offenders would commit serious offenses at a high rate if NOT incarcerated
3. Thinking about crime (pg. 48)
a. Three conditions MUST be met for incapacitation to work
i. Some offenders MUST be repeaters
ii. Offenders taken off the streets MUST NOT be immediately and completely replaced by new recruits
iii. Prison MUST NOT increase the post-release criminal activity of those who have been incarcerated sufficiently to offset the crimes prevented by their stay in prison
E. Retribution
1. Basic principles
a. Punishment is justified when it is deserved
i. It is deserved when the wrongdoer freely chooses to violate society’s rules
b. D MUST pay debt to society for unjust enrichment resulting from breaking implied contracts in society
c. Retribution vs. utilitarianism
i. Retribution looks backward and justifies punishment solely on basis of voluntary commission of crime
1. Utilitarianism looks forward and cares about the past ONLY to the extent that it helps predict the future
ii. Retribution focuses on the view that humans generally possess free will and may justly be blamed when they choose to violate society’s mores
1. Utilitarianism views people as generally hedonistic and rational calculators
2. Forms of retribution
a. Assaultive retribution
i. Morally right to hurt criminals
b. Protective retribution
i. Punishment is a means to secure moral balance in society
c. Victim vindication
i. A way to right a wrong
ii. Corrects the false claim that the criminal has a higher worth than the victim
1. Communicative retribution
a. Society sends a message that the victim is equal despite wrongdoer’s actions indicating that he is NOT
3. Criticisms
a. Purposely causes MORE suffering in society
b. Glorifies anger and legitimizes hatred
c. Irrational because it is founded on emotions rather than on reason
F. Denunciation
1. Basic principles
a. Those who disobey criminal law should be held up to the rest of society and denounced as violators of the rules that define what the society represents
b. Society MUST register its disapproval of wrongful acts and reaffirm the values violated by these acts
2. Shame, Culture, and American Criminal Law (pg. 59)
a. Shaming practices are MOST effective when five conditions are met
i. Potential offenders MUST be members of an identifiable group
1. Ex: Close-knit religious or ethnic community
ii. Legal sanctions MUST actually compromise potential offenders’ group social standing
1. Affected group MUST concur with legal decisionmaker’s estimation of what is, or should be, humiliating to group members
iii. Shaming MUST be communicated to the group, and the group MUST withdraw from the offender physi
Current role of MPC
a. Some form of it adopted by 37 states
b. Become standard part of the furniture of the criminal law
c. Courts turn to it and its comments for guidance
III. The jury
A. Source of right
1. 6th Amendment
a. “In ALL criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed”
B. Purpose
1. Duncan v. Louisiana (1968; pg. 119)
a. Gives D a safeguard against the corrupt or overzealous prosecutor and against the compliant, based, or eccentric judge
i. Prevents oppression by the government
b. Reflects reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges
c. Fear of unchecked power
d. Community participation in the determination of guilt or innocence
2. The Law-Finding Function of the American Jury (1999; pg. 120; Harrington)
a. Over time, the power of the jury over the law has gone away
b. Now, jury ONLY has power over the facts
C. Jury nullification
1. Definition
a. Rendering of a verdict by a trial jury, disagreeing with the instructions by the judge concerning what the law is, or whether such law is applicable to the case, taking into account all of the evidence presented
2. United States v. Dougherty (1972; pg. 121; Ds, in order to protest the Vietnam war, broke into and vandalized a Dow Chemical Company office in Washington; Ds wanted a jury instruction on jury nullification)
a. Affirmed power of a jury to nullify the law BUT upheld the denial of D’s chance to instruct the jury about the power to nullify
b. Dissent
i. Jury should be instructed about their power to render the verdict according to their conscience if the law was unjust
ii. Rrefusal to allow the jury to be instructed constitutes a “deliberate lack of candor”
3. FAQs
a. Can a prosecutor appeal an acquittal where the jury does NOT follow the law?
i. NO
b. Can a defense lawyer successfully appeal a guilty verdict where the jury does NOT follow the law?
i. YES
c. Can judges tell juries about nullification?
i. YES, but they never do
Can lawyers tell juries about nullificatio
