Criminalization Policy
Theories of Justification
Retributionism: One who violates the strictures of the law, or offends morality, merits punishment whether or not the infliction of pain upon the offender can be demonstrated to have any desirable effects upon her or upon others. Adherents of this view contend that no society is moral if good goes unrewarded and evil unpunished. Retributionist theory asks for no further justification of the right to punish than that the offender has committed a wrong. Theorists are not concerned with the purpose of penal law but with the moral basis for sentencing a particular person and the kind and extent of the punishment imposed.
Just Deserts: No punishment is appropriate unless an evil has been done. Free will is an assumption of just deserts. The actor must have chosen to do wrong. The Punishment imposed must, in some general sense, be proportionate to the gravity of the offense.
Utilitarianism: Utilitarianism is predicated on the notion that the harm which is inherent in the infliction of punishment is justified only if it will be outweighed by the good for society to be achieved thereby.
The minimization of criminal violations: Whether through incarceration, fear, treatment, the internalization of the law’s commands, or the preclusion of self help- is the only justification for punishment
Justifications
Deterrence: Our conduct is adjusted because of the anticipation of undesirable consequences which may follow from indulging in the satisfaction of our desires
Moralization: It seems to be quite generally accepted among the members of society that the law should be obeyed even though one is dissatisfied with it and wants it changed. If true, the law creates conformity.
Punishment is a means of expressing social disapproval.
Criminal law and its enforcement supplement and enhance the moral influence aquired through education and other nonlegal processes.
Rehabilitation: Punishment provides an opportunity to alter the character of the offender so as to prevent future offenses.
Negligence Mens Rea and Justification: The deterrence theory of criminal law is based on the hypothesis that the prospective offender knows that he will be punished for any criminal activity, and, therefore, will adjust his behavior to avoid committing a criminal act. The punishment of a negligent offender in no way implements this theory, since the negligent hard-doer is, by definition, unaware of the risk he imposes on society. It is questionable whether holding an individual criminal liable for acts the risks of which he has failed to perceive will deter him from failing to perceive in the future. Retributive theory presupposes a moral guilt, which justifies society in seeking its revenge against the offender. However, the negligent harm-doer ha
eyond a reasonable doubt. (Sullivan v. Louisiana) Thus, treating an element of the crime as a matter of law and withdrawing it from jury consideration violates the defendant’s right to due process and to a jury trial. (U.S. v. Gaudin)
Defensive matters – burdens may be imposed on defendant: If a matter is not an element of the crime but rather relates to a defense, federal constitutional requirements are considerably more flexible.
Burden of going forward with evidence: The burden of going forward with evidence on a defensive matter may be placed on the defendant. Under this approach, the defendant must produce evidence supporting the defense before the jury will be instructed on the defensive matter.
Burden of proof or persuasion: With regard to some and perhaps all traditional defenses, due process permits placement of the burden of proving the defense on the defendant, even if that burden is a quite high one. In murder prosecution, burden of proof on self-defense can be placed on defendant (Martin v. Ohio) Burden of proof beyond a reasonable doubt on insanity can be placed on defendant. (Leland v. Oregon)
