Principles of Punishment
1. Fundamental Questions
a. Why impose punishment?
b. Who should be punished?
c. How much punishment is appropriate?
2. Dominant Theories
a. Retributive:
i. Punishment is justified because people deserve it
ii. Backward looking - the justification for punishment is found in the prior wrongdoing.
b. Utilitarian:
i. Justification lies in the useful purposes that punishment serves (costs vs. benefits analysis)
ii. Forward looking - punishment is justified on the basis of the supposed benefits that will accrue from its imposition
3. Utilitarian Theory
a. Economic based theory.
i. Since punishment involves harms, it can be justified only if it produces sufficient future benefits to outweigh costs.
ii. A rational criminal will avoid criminal activity if the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal rewards).
b. Utilitarian Justifications
i. General Deterrence: knowledge that punishment will follow crime deters people committing crimes, reducing future unhappiness and insecurity
ii. Individual deterrence: punishment creates fear in the offender that if he repeats his act he will be punished again
iii. Incapacitation: imprisonment temporarily puts convicted criminals out of general circulation.
iv. Rehabilitation/Reform: punishment may help reform the criminal so his wish to commit crimes will be lessened
4. Retributive Theory
a. Retributivism is not the view that only the guilty are to be punished, but that the “moral desert” of an offender is a sufficient reason to punish them.
i. Negative retributivism: guilt is a necessary, but not sufficient, condition of punishment
ii. Positive retributivism: guilt is both a necessary and sufficient condition for punishment
5. How Much Punishment?
a. Most criminal codes consider a mix of retributive and utilitarian factors when sentencing.
i. Indeterminate sentencing system: if trial judges have broad sentencing discretion.
ii. Determinate sentencing system: legislature sets specific sentence for each crime, or range of sentence considering mitigating or aggravating circumstances. (sentencing guidelines)
6. Proportionality
a. Model Penal Code: one purpose is “to render punishment within a range of severity proportionate to the gravity of the offenses, the harms done to crime victims, and the moral blameworthiness of offenders.”
b. Two Questions:
i. How much punishment is proportional to a given crime?
ii. Under what circumstances is disproportionate punishment unconstitutional?
c. Retribution and Proportionality
i. Punishment must be proportional to the gravity of the offense committed as measured by:
1. The harm caused by the offender
2. The offender’s moral blameworthiness
d. Utilitarianism and Proportionality
i. Punishment must exceed the potential reward from the crime.
ii. The greater the mischief, the greater the punishment.
iii. Punishment should be no more than is necessary to achieve utilitarian goals.
e. Eighth Amendment
i. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
ii. SCOTUS: Prohibits “punishments which by their excessive length or severity are greatly disproportioned to the offense charged.”
iii. Coker v. Georgia, SCOTUS 1977 (Plurality Opinion)
1. Does imposing death penalty for rape violate the Eighth Amendment?
2. Objective criteria
a. Georgia only jurisdiction that authorizes death penalty for the rape of an adult woman
b. Georgia juries have sentenced rapists to death only 6 times in 63 cases
3. Subjective Criteria
a. Rape “does not compare with murder”
b. “The murderer kills; the rapist, if no more than that, does not.”
iv. Kennedy v. Louisiana 2008, Kennedy’s opinion
1. Death penalty is also disproportionate for child rape.
2. Should not extend death penalty to crimes against individuals where the victim’s life is not taken during the commission of the crime.
3. Only relates to crimes against individuals, not necessarily to treason/terrorism/espionage.
1. Fundamental Questions
a. Why impose punishment?
b. Who should be punished?
c. How much punishment is appropriate?
2. Dominant Theories
a. Retributive:
i. Punishment is justified because people deserve it
ii. Backward looking - the justification for punishment is found in the prior wrongdoing.
b. Utilitarian:
i. Justification lies in the useful purposes that punishment serves (costs vs. benefits analysis)
ii. Forward looking - punishment is justified on the basis of the supposed benefits that will accrue from its imposition
3. Utilitarian Theory
a. Economic based theory.
i. Since punishment involves harms, it can be justified only if it produces sufficient future benefits to outweigh costs.
ii. A rational criminal will avoid criminal activity if the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal rewards).
b. Utilitarian Justifications
i. General Deterrence: knowledge that punishment will follow crime deters people committing crimes, reducing future unhappiness and insecurity
ii. Individual deterrence: punishment creates fear in the offender that if he repeats his act he will be punished again
iii. Incapacitation: imprisonment temporarily puts convicted criminals out of general circulation.
iv. Rehabilitation/Reform: punishment may help reform the criminal so his wish to commit crimes will be lessened
4. Retributive Theory
a. Retributivism is not the view that only the guilty are to be punished, but that the “moral desert” of an offender is a sufficient reason to punish them.
i. Negative retributivism: guilt is a necessary, but not sufficient, condition of punishment
ii. Positive retributivism: guilt is both a necessary and sufficient condition for punishment
5. How Much Punishment?
a. Most criminal codes consider a mix of retributive and utilitarian factors when sentencing.
i. Indeterminate sentencing system: if trial judges have broad sentencing discretion.
ii. Determinate sentencing system: legislature sets specific sentence for each crime, or range of sentence considering mitigating or aggravating circumstances. (sentencing guidelines)
6. Proportionality
a. Model Penal Code: one purpose is “to render punishment within a range of severity proportionate to the gravity of the offenses, the harms done to crime victims, and the moral blameworthiness of offenders.”
b. Two Questions:
i. How much punishment is proportional to a given crime?
ii. Under what circumstances is disproportionate punishment unconstitutional?
c. Retribution and Proportionality
i. Punishment must be proportional to the gravity of the offense committed as measured by:
1. The harm caused by the offender
2. The offender’s moral blameworthiness
d. Utilitarianism and Proportionality
i. Punishment must exceed the potential reward from the crime.
ii. The greater the mischief, the greater the punishment.
iii. Punishment should be no more than is necessary to achieve utilitarian goals.
e. Eighth Amendment
i. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
ii. SCOTUS: Prohibits “punishments which by their excessive length or severity are greatly disproportioned to the offense charged.”
iii. Coker v. Georgia, SCOTUS 1977 (Plurality Opinion)
1. Does imposing death penalty for rape violate the Eighth Amendment?
2. Objective criteria
a. Georgia only jurisdiction that authorizes death penalty for the rape of an adult woman
b. Georgia juries have sentenced rapists to death only 6 times in 63 cases
3. Subjective Criteria
a. Rape “does not compare with murder”
b. “The murderer kills; the rapist, if no more than that, does not.”
iv. Kennedy v. Louisiana 2008, Kennedy’s opinion
1. Death penalty is also disproportionate for child rape.
2. Should not extend death penalty to crimes against individuals where the victim’s life is not taken during the commission of the crime.
3. Only relates to crimes against individuals, not necessarily to treason/terrorism/espionage.
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