crim_mandel_f05_4 - CRIMINAL LAW SUMMARY FALL 2005 MANDEL I...

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CRIMINAL LAW SUMMARY FALL 2005 MANDEL I. PURPOSES/JUSTIFICATIONS OF CRIMINAL LAW Theories of Punishment (s: 7 – 19) The Problem of Punishment - The mere existence of the criminal law demands justification because in the name of equality, it singles people out for deliberate deprivation. This may seem like a contradictory premise, because the deprivation is a prima facie violation of the right to equal treatment. Deterrence/Utilitarianism (Jeremy Bentham) Punishment is mainly justified by its potential to prevent crime Based on a cost/benefit analysis in order to ensure “the greatest good for the greatest number” of people. Thus, punishment is justified if it prevents more harm from crime than is inflicted through punishment. It is the lesser of two evils. 2 Categories of the methods of crime prevention: 1. General Deterrence The threat of punishment deters the acts. The threat is kept credible by actually punishing those who commit crimes. There are 2 qualifying principles in order to claim a given punishment is “justifiable” 1. The prevented harm to victims exceeds the inflicted harm to offenders 2. The punishment rendered must be the least harmful as possible in order to reach the desired result. There must be proportionality Variations in the likelihood of punishment do have a deterrent effect, whereas severity of punishment does not. 2. Individual Deterrence Seek to reduce the criminal activity of the person being punished Are not very theoretically sound in relation to the utilitarian justifications Two types: i. Rehabilitation/Reform - identifying those who are likely not to re-offend an offering them a lesser punishment ii. Incapacitation - Prevention of re-offending by control over the individual Problems – deterrence doesn’t work for every type of crime – i.e. when crimes are the result of ‘the heat of the moment’ or when crimes are the result of an accident (ex. Manslaughter) Retribution (Immanuel Kant; Herbert Morris) Kant : Punishment is a categorical imperative and thus, is justified because they deserve it for doing what they did. That s the end of it you don’t need any greater justification than that. If you inflict harm, you deserve harm done unto you, tit-for-tat. Morris : Individuals in society share a mutual benefit because they all share a burden – the burden to exercise self-restraint in the pursuit of self interested goals so as to not infringe on others’ rights. When people commit crimes they are giving themselves an unfair advantage over all other members of society – essentially they are breaching the contract. Criminals deserved to be punished by the mere fact that they committed a crime, b/c it levels the playing field and takes away they advantage they have given themselves Justified by ‘free-will’ - everyone freely chooses to commit crime or not Problems : The logic of restoring a balance b/w offender and victim, is the logic of compensation and would turn the criminal law into a tort system
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