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Unformatted text preview: T HEORIES OF P UNISHMENT & C ONSTITUTIONAL L IMITATIONS ON C RIME , C RIMINAL S TATUTES A. Theories of Punishment 1. Retributivist – punishment is justified b/c people deserve it i. Backward-looking: If you commit a wrong, you should pay for it ii. Punishment must be imposed only b/c the individual on whom it is inflicted has committed a crime. Must be found guilty and punishable iii. Moral desert of an offender is sufficient reason to punish iv. Punishment is justified because and only because offenders deserve it. v. Moral culpability (“desert”) is both a sufficient and necessary condition of liability to punitive sanctions vi. Moral culpability gives society the duty to punish vii. “Negative” – morally wrong to punish an innocent person even if society would benefit from the action viii. “Positive” – not only must an innocent person never be punished, but one who is guilty must be punished 2. Utilitarian – justification lies in the useful purposes that punishment serves i. “For the good of society” – forward-looking; punishment serves ends that are valuable and outweighs the costs (to the individual punished and to society as a whole) ii. Benefits of Punishment • General Deterrence • Specific Deterrence • Incapacitation / Risk Management • Reform / Rehabilitation • Norm Reinforcement – emphasize power of state; punishment to teach lessons • Prevent Individual Vengeance • Create Security iii. All punishment in itself is evil. It ought only be used if it excludes some greater evil. iv. Punishment ought not be inflicted • Where it is groundless • Where it must be inefficacious • Where it is unprofitable or too expensive • Where it is needless v. Punishment can only be justified if it accomplished enough good consequences to outweigh the harm vi. Benefits of punishment depend on • Nature of offense • Type of offender involved • Perceived risk of detection, arrest, and conviction • Nature of severity of penalty B. Amount and Proportionality of Punishment 1. Under utilitarian views, how do you determine what is enough? i. Whatever amt/type is necessary to maintain the goals of punishment (only enough to serve the ends, NO MORE) 1 2. Under retributivist views, how do you determine what is enough? i. Depends on what the harm done was ii. Set the punishment to match the harm 3. “Shaming” Punishments i. Utilitarian – general deterrence, specific deterrence, rehabilitation ii. Retributivist – more “eye for an eye”, better fit to exactly what you did iii. Argument against these punishments if they are used solely for humiliation iv. Some cases meet the goals of punishment; other uses of shaming do not and aren’t upheld 4. Ewing v. California (golf club theft sentenced under “Three Strikes and You’re Out”) i. Challenged under 8 th Amendment – cruel and unusual punishment since it was not proportional to his crime ii. Majority opinion: sentence was not grossly disproportionate and therefore does not...
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This note was uploaded on 04/11/2008 for the course LAW crim taught by Professor Idk during the Spring '08 term at University of Michigan.
- Spring '08
- Ordinary People