· Theories of Punishment
o Utilitarianism – Pleasure/Pain
o Retributivism – Morality
· Bentham – Utilitarianism (pain and pleasure)
o Moral theory; practical
o “As a whole we maximize our happiness”
o Well being of the entire nation over those of smaller circles – Political
o Punish mischief – Why?
§ So that those who are committing crimes do not infringe upon the whole’s pleasure
o Only punish enough in which the pleasure will outweigh the pains involved.
§ More pain on society = harsher punishment
§ Punishment should outweigh the possible pleasure of the crime (deterrence)
o Pleasure > Pain
o Heavy Deterrence theory
· Kant – Retributivism
o “One man ought never be dealt with merely as a means subservient to the purpose of another”
o Idealistic/moral theory
o Rejects principle of utilitarianism on basis of deterrence (rejects deterrence)
o Necessary and sufficient to punish regardless of deterrence value
o No innocent person should be punished; not necessary or significant to punish someone with no guilt.
o Categorical Imperative
§ “Act only according to that maxim whereby you can at the same time will that it should become universal law.”
o “Act in such a way that you can treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means.”
o Must punish the guilty even when no pleasure for the societal whole are present because lack of punishment will bring a lesser government.
o Being humane is not being merciful
o Principle of Equality
§ Punishment must equal crime; “The scale of justice is made to incline no more to one side than the other”
§ No more, no less
o Must punish, regardless of deterrence.
· John Rawls
o “Veil of Ignorance”
§ Not sure where you will lie within legislation, then the law is just.
o Criminal laws are moral and just if we would agree to them under a veil of ignorance.
o Justice is about fairness
· Alternative Theories
§ At the root of all “We are animals”
§ Punishment repays debt
§ Violate rules of the whole, you owe a debt
§ Pain is festive (enjoy seeing pain onto others)
§ Punishment Civilizes
· Pain is best mnemonic
§ “Law breaker is a debtor . . . who has attacked his creditor”
§ Not justifying punishment, says “this is how it is.”
§ Why physical public punishment?
· Demonstrate power over the people (subjects) by the king
§ Punishment perpetuates post-aristocratic, bourgeois power-knowledge structure
§ Evolved over time, changed from body à spirit à soul (execution à jail)
· Legality Principle
o Crimes must be predefined.
o “No crime without law; no punishment without law”
o Constitutional Limits – Ex Post Facto à Legislature
§ Makes conduct lawful when committed unlawful
§ Makes crimes greater than when committed
§ Inflicts greater punishment than when committed
§ Allows less or different evidence for conviction than when committed.
o Judicial – Due Process
§ No retroactive application of judicial alteration of common law criminal doctrine that violates fair notice
· Unexpected and indefensible change from law prior to conduct.
· Proportionality of Punishment
o Cruel and Unusual punishment if:
§ No measurable advancement of deterrence or retribution
Judicial interpretation of ambiguous statutes should “be biased in favor of the accused” a concept known as the lenity doctrine
· Rule of Lenity – must conclude that there is a “grievous ambiguity or uncertainty” in a statute.
· Statutory Interpretation
o “Originalism” – Formal process of democracy legitimizes the law.
§ Original Public Meaning”
§ Interpret constitution as it is as written; original meaning of words at the time written
§ Process legitimizes the law
§ Look at word meanings at time of writing.
o “Purposivism” – Substantive
§ “A word is not a crystal, transparent and unchanged, it is the skin of a living thought” – Wendell Holmes
§ “Framers might have been more specific. they did not presume to have this insight.”
§ Words are thoughts
§ Purpose, Pragmatic, Partnership
§ Scalia says purposivism is dangerous because it brings our individual values into the interpretation.
o Steven’s 5 Steps (canons of statutory interpretation)
§ Read the statute
§ Read the entire statute
§ Read in its contemporary context
§ Consult legislative history
§ Use common sense.
§ Text, Reasonable meaning, Nothing Else
§ “process created the law” – only words matter.
§ The only law is the words.
§ “The objective indication of the words, rather than the intent of the legislature, is what constitutes the law . . .