Purposes of Criminal Law

Supplemental Reading 9-11

A.  Retributive

Backward looking

Kant: penal law is categorical imperative.

·         Justice can only be served through punishment.

·         Right of retaliation: just penalty is equal e.g. whoever committed murder must die.

·         Utilitarian values undermine justice: it ceases to be justice if it can be bartered like any other commodity.

Moore: retributivist—punish only b/c the offender deserves it. Moral culpability of offender gives society a duty to punish

Hart: punishment is return of suffering for moral evil voluntarily done – punishment itself is thus a good thing.

            -but how does evil (offense) + evil (punishment) = good?

Morris: punishment restores just distribution of benefits and burdens – exacts debt.

-Murphy Marxist response: many criminals come from terrible socioeconomic backgrounds – “debt” to society? For what, when poor man never benefitted from society? No reciprocity of benefits

-Mackie response: why do you “repay” evil with evil? Doesn’t wipe out existing crime. Punish to eliminate advantage criminal got by trying to get ahead. Not to punish.

1. Vengeance

Fitzjames – Stephen: notion that punishment should be based on amount of resentment and outrage generated by the crime. Punishment is expression and solemn ratification of the hatred that is excited by the actor’s offense.

·         Problem: sentence may not be adequate for the family/community (e.g. less for negligent homicide, but family wants defendant’s life to be equally ruined)

·         Problem: victim impact statements—S.C. ruled they could be used in trial (blameworthiness of defendant) b/c murder has foreseeable consequences, like hurting a family.

2. Social Functions

Hart: public expression of condemnation is value in and of itself (close to utilitarian deterrence)

Durkheim: function of punishment is really to maintain cohesion of society by sustaining common consciousness. Punishment heals wounds inflicted on collective sentiments.

3. Mixed Theory

Hart: most system are retributive b/c punish murder more than robbery, even though an equal punish may deter both. However, by setting a max penalty the system is also utilitarian

Moore: Paternalistic utilitarian theory of punishment is bad because moral blindness is bad.

B.  Utilitarian

Forward looking

1. Deterrence Value

Rational Actor model:

Bentham: Criminals consciously or unconsciously calculate costs and benefits. Thus, must make the costs from punishment higher than the gains of committing the crime

-Many argue this doesn’t apply especially for crimes of passion.

-Robinson & Darley: criminals aren’t rational. May apply broadly, but not for minor changes in sentences

-May have perverse effects – severe punishment raises cost of addict buying drugs so the addict will commit robbery to finance his habit OR criminal has already hit max sentence, so no incentive to stop committing crimes/worse crimes

How to increase deterrent effect of punishment:

·         Increase risk/certainty of conviction, Increase severity of punishment

·         Note: Increased certainty has greater deterrent effect than increased severity

*some evidence that excessive penalties cause conviction rates to decline because juries are less willing to convict when they know penalties are huge.

·         Moral influence: don’t comply from rational cost/benefit but from external/communal norms and internal norms. So needs to educate public

2. Rehabilitation

Martinson: research on effectiveness is mixed: first said rehabilitation programs had not impact on recidivism. Later said they could reduce recidivism for some offenders under certain circumstances.

·         Notion became fixed in public mind that rehabilitation doesn’t work.

Von-Hirsh and Maher: rehabilitation programs will only work if more drastic.

Cullen and Gilbert: argue for return to treatment model, but worry there is potential problem with fairness / discretion of treatment providers.

3. Incapacitation

Zimring & Hawkins: prison meant to restrain those under its control – all other objectives are ancillary.

Diulio: incarceration is cost effective solution to restrain known criminals from murdering / raping / robbing. **doesn’t make sense for low-level, first time drug offenders.

            -Later honed his perspective, said nation maxed out value of incarceration in 90’s.