Theories of Punishment
§ Utilitarianism
§ Purpose of all laws is to maximize the net happiness of society
§ Pain (punishment) is justifiable only if it is expected to result in a reduction in the pain of crime that would otherwise occur
§ Offender must weigh the costs (deterrence factor) and benefits of committing a crime
4 Specific Applications of Consequentialism/Utilitarianism:
1. General Deterrence
o Offender is punished so to convince the general community to forego criminal conduct in the future
o Deterring the population generally for committing crime by letting the population know that they will be punished
o There is no problem in punishing the innocent, unless it undermines deterrence and encourages crime
2. Specific Deterrence
o Punishment is meant to deter future misconduct of the offender (2 ways: incapacitation and intimidation upon release)
o Meant to deter a specific individual (not the general population) from committing a crime
3. Incapacitation
o By incapacitating a person, the person is clearly deterred from committing another crime
o Imprisonment + capital punishment are incapacitating; fines and other forms of punishment are not
o Tries to prevent you from committing a crime, though it does not rest on the assumption that you have already committed the crime (though incapacitating the innocent would be bad public policy); quite different than retributivist’s mentality of punishing for the sake of disciplining the offender for his/her action
4. Rehabilitation
o The correctional system reforms the wrongdoer, you are imprisoned until you are “healed”
o You use a criminal sentence to try to reform the criminal; to re-educate them
o Rules out certain forms of punishment (fines, death punishment)
o Might interfere with deterrence; criminals may believe that they can go to prison, talk to a psychiatrist, and leave prison prematurely (BUT this plan might not work)
o Might also interfere with retribution
§ Retributivism
§ Backward-looking: we punish people because they deserve it, not because we want to bring about a more pleasant society
§ Punishment is justified when it is deserved – wrongdoer chooses to break the rules of society
§ The offender should be punished, regardless of whether it will result in reduction of crime
§ The offender ought to suffer in proportion to his desert/culpable wrongdoing/what he deserves
§ People have free will over their actions, and will be punished if their actions are illegal to society
§ ASSAULTIVE Retributivism:
o “Eye for an eye;” it is morally right to hate criminals and “hurt them back” for their harm to society
§ PROTECTIVE Retributivism:
o Punishment is a means of securing a moral balance in society; the criminal upset this balance through his/her wrongdoing, so he/she owes a debt to society
§ VICTIM VINDICATION:
o Offender commits his crime as a way to elevate himself over his victim; punishment reverses that claim, and reaffirms victim’s worth in spite of the criminal’s challenge
· Strong Retributivism:
o Kant: We have obligation to see that those who deserve punishment get what they deserve
· Weak Retributivism:
o It is permissible to punish someone who is deserving; though it doesn’t give a reason to punish
· Moderate Position:
o For someone who deserves to be punished, we ought to punish them, though we are not obligated to do so, and we cannot punish them more than they deserve
· Deep-down, we are all retributivists; when someone commits a wrong, we feel they deserve punishment.
PROBLEMS WITH RETRIBUTIVISM: Determining the appropriate amount of punishment
· What do people deserve?
· What actions have we taken in the past? Precedent – BUT the past might be just as mistaken as the present.
· We must look at action AND intent – which is more important?
o State of mind of the actor: was the actor intending a harm? Knowingly risking a harm?
o More controversial: Consequences of the action
§ 2 camps: 1 group says consequences do matter – 1 group says state of mind is the only consideration, regardless of result.
· Environmental Circumstances: If we consider state of mind of the actor, are we punishing the character of the individual, or are we punishing the circumstances surrounding the individual?
o E.g. a wealthy person may have the character of a thief, but hasn’t had the circumstances to steal
· Character Change:We punish someone in a later point in time after the crime was committed:
o Does he now not reflect the individual who committed the crime? Character change?
o Are we punishing a new person not deserving of punishment?
· Free Will: The Issue of Free Will:
o Did the individual who committed the crime have free will in committing the crime?
· Psychopathic Criminals
o Quite intelligent individuals – they know difference between right and wrong, but lack moral understanding and emotions (indignation, blame, guilt)
· What punishment do they deserve? (“Moral Desert”)
o How to measure: should we look at punishment we are about to inflict? at their lives, hardships, etc?
· Standardization of Sentencing
o 2 people commit identical crimes: D1 gets 3 yrs in jail; D2 gets 5 yrs b/c he made a mistake with D1. Is this fair?
o Must we be comparative across jurisdictions? Across country lines (Saudi Arabia v. US)? Across eras of history (Neanderthal v. present day)?
§ NO – we don’t operate this way; we must make each decision in the most rational way we can.
· Giving people what they deserve comes at a cost.
· DETERENCE: Deserved punishment may conflict with deterrence of crime
o E.g. it’s very difficult to catch someone litter at the beach
· Deterrence:
o 1. How much you will be punished for the said crime, (multiplied by)
o 2. Probability of being convicted.
o Simple math: as probability of being detected lowers, punishment must increase to compensate.
· Proving crime/punishment is very costly to operate; guilty might go free due to lack of resources; not only is it a cost when the guilty go free, but also when the guilty think they’re going to go free, as they will commit more crimes.
· Innocent members of the criminal’s family: pain and suffering is frequently incurred
· Harms to society – brilliant scientist on the verge of cancer cure sentenced to jail time; which harm/benefit is greater?
Retributivist Values:
· Proportionality in Punishment
o Offender should get the punishment he deserves, though shouldn’t get more punishment that deserved (though error is inevitable in human-run system – OK so long as we are not knowingly giving disproportionate punishment)
· Cost Reduction – cost of criminal processes themselves; cost of excess punishment (to impose addt’l punishment); cost of excess deterrence (spill-over to innocent people; actions that prevent lawful activity due to risk of looking guilty)
· People should be able to defend themselves from crimes by putting obstacles in way of a criminal committing that crime (e.g. throwing purse in shark tank)
§ Denunciation
§ Punishment is justified as a means of expressing society’s condemnation, and the relative seriousness, of a crime
§ It is educative: we inform individuals that community considers certain conduct improper and values the victim’s worth
§ Channels community anger away from personal vengeance
§ Serves to maintain social cohesion
§ Serves to stigmatize the offender for his offense
§ U.S. Theory of Punishment
§ Criminal law developed in the U.S. not philosophically consistent; some rules are primarily retributive, others are utilitarian.
· Mixed theory of retributivism and consequentialism:
o You can’t be punished more than you deserve; how little you are punished depends on consequentialist views.
o Depends on the productivity of the individual (e.g. scientist on verge of cancer cure)
· Self-Defense
o Proportionality Principle: You can threaten anyone with any amount of harm (death, etc.) but you cannot carry out any more than what is proportional to the amount of harm you are in fear of
· Cruel & Unusual Punishment (8th A.)
o A matter of proportionality – your punishment must be proportional to the crime you inflicted
o A very weak constraint (e.g. CA “3 strikes, you’re out” remains constitutional, as it has been unsuccessfully challenged)
o 8th A: C&U Punishment as a matter for federal courts
o 14th A: Due Process Clause covers C&U Punishment for the states
· In the case of ordinary punishment:
o We make the threat (You try to steal my purse, I’ll throw purse in shark tank)
o The criminal makes the choice to commit the crime (dive into tank and snatch the purse/assume risk of shark bite)
o We make the choice to go through with the original threat (throw purse in shark tank)
§ Rules v. Standards
RULES:
§ Give the same specific guidance to everyone, despite differing values
o E.g. a stop sign: regardless of personal differences, a stop sign means the same thing to all
§ PRO: Predictability + coordination are promoted with rules
§ CON: However, rules don’t bend with certain circumstances; they are rigid and thus produce loopholes
o Since rules are finite and cr
he particular factual claim in question; the party with the burden of persuasion is responsible for convincing the jury of the truth of their claim
§ DUE PROCESS CLAUSE: states that a person charged with a crime is presumed innocent, and according to the WINSHIP DOCTRINE, the prosecution must persuade the jury that the defendant is guilty beyond a reasonable doubt of “every fact necessary to constitute the crime charged”
§ Confusion over WINSHIP as to what precisely are the facts for which the gov’t must constitutionally carry the burden of persuasion:
o Mullaney v. Wilbur: burden of persuasion falls on the prosecution because “heat of passion” is an excuse defense that makes it part of the statute itself for the prosecution to prove
o Patterson v. New York: burden of persuasion falls on defendant because “extreme emotional disturbance” is an affirmative defense to murder for which the defendant must prove
§ Prosecution must prove every element of an offense beyond a reasonable doubt, and, except in “certain limited circumstances,” a legislature may allocate to the defendant the burden of persuasion re. “facts not formally identified as elements of the offense charged”
o If affirmative defense, burden falls on defense
o Martin v. Ohio: self-defense is an affirmative defense; defendant must have burden to prove it
o Montana v. Egelhoff: question re. Montana statute relating to the definition of murder and a statute concerning actions caused by a voluntarily-induced intoxicated condition
MPC:
§ Prosecution must prove every element of an offense beyond a reasonable doubt
§ The prosecution has the duty to disprove defenses, assuming that the defendant has satisfied his burden of production; however, this doesn’t apply to defenses where proof by a preponderance of the evidence is expressly required by the MPC
§ Beyond a Reasonable Doubt/Defendant Acquittal
§ Requirement for prosecution from Due Process Clause
§ Highest burden recognized in the law; a “very high level of probability is required” (81)
§ Recent Interpretations:
o Commonwealth v. Webster: reasonable doubt exists when the “state of the case…leaves the minds of jurors in the condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge”
o Victor v. Nebraska: “moral certainty” (above) is outdated – should be replaced with “an abiding conviction” and a “settled and fixed conviction” of the defendant’s guilt
§ If the prosecution fails to prove each element of the case beyond a reasonable doubt, an acquittal must occur, in one of two ways:
o (1) Before the jury deliberates, D writes motion to acquit
o (2) If the judge believes the jury is rational and understands that acquittal is imminent, the case goes to the jury and the jury acquits the defendant, assuming it believes there is a reasonable doubt the D is innocent
§ § 1.12: MPC – Beyond a Reasonable Doubt
§ Each element of an offense MUST be proved beyond a reasonable doubt
o However, MPC does NOT require the disproof of an affirmative offense unless and until there is evidence supporting such defense, or apply to any defense where the statute stipulates that a preponderance of evidence must be proved by D
§ A ground of defense is affirmative when:
o The MPC states it is, or
o It involves a matter of excuse or justification peculiarly within the knowledge of the defendant on which D can fairly be required to adduce supporting evidence.
§ When a finding of a fact is not an element of the defense,
o The burden of proving the fact is on whichever party’s interest or contention will be furthered if the finding should be made; and
o The fact must be proved to the satisfaction of the Court or jury, as the case may be.
