Criminal
Law Class Notes
Today’s
assignment
A
thought experiment: you’re 8 years old and someone comes up to you and gives
you a gift out of the blue.
Say
someone comes up to you when you’re 8 years old and they punched you. What would you say, or what would you have
said to yourself? You might want to hit
them back. What else might be going
through your mind? You might be thinking
“why?” We don’t often ask why when
something good happens to us. Instinctually,
we ask why someone did something bad to me.
Theories
of punishment
Utilitarianism
and retribution are the most important tools we will use to study the criminal
justice system.
Mr.
Churchill says a good country treats its criminals well.
Criminal
law is “The People versus…” as opposed to “Jones v. Smith”. When any person is punished for a crime, the
entire society is punishing that person. Punishment is being done in our name. We have a duty to be able to explain why we
are inflicting pain on other people and denying them liberty, or even killing
them.
Today,
we look at how various theorists have answered this critical question.
Why
do we punish?
What
is the general justifying aim of the criminal law? Why have we set up criminal courts and
prisons? Utilitarians and
retributionists will have different, and sometimes
contradictory answers.
Say
a legislature doesn’t believe Dudley and Stephens should be punished. Let’s say we all agree that the next Dudley
and Stephens ought not to be punished. How
would we go about ensuring this?
How
would we write a statute to do this? How
about establishing either a justification or an excuse? We can give them a defense.
That
is to say, if you meet certain criteria, you will be able to make an argument
to let you off of the murder charge.
Distributive
justice
There
are two questions involved in how we distribute justice:
1. Whom do we
punish?
2. How much
punishment is appropriate?
We
will virtually never discuss the issue of whether we ought to have a criminal
justice system. It’s an important
question, but it’s not really on the table.
But we will ask the latter two questions all semester long. The same tools will be used to answer these
two tools that you’d use to answer the former question: utilitarianism and
retributivism.
How
do we distribute justice on a case-by-case basis?
There
is a poll on TWEN in regard to utilitarianism versus retributivism. We’ll do another poll at the end of the
semester. We’ll see as time goes on
which stance we’ll take. We’ll look at
the consequences of each theory and how they answer these important
questions. In turn, we’ll have a chance
to see where we ourselves stand.
Utilitarianism
What
do utilitarians believe about the criminal law?
Utilitarianism
is forward-looking.
Utilitarianism tries to deter future bad conduct.
What
must be true about human beings in order for utilitarianism to work? How will deterrence work, if it is going to
work? Human beings must be characterized
by seeking pleasure and avoiding pain.
In other words, human beings are hedonists.
What
does the utilitarian think about crime and punishment?
We
must be able to do the calculations; we must be rational.
Say
you’re considering committing a crime.
You may have pleasure coming to you from committing the crime. On the other hand, society will experience
pain. The potential criminal weighs the
costs and benefits of committing a crime.
If
we are not rational calculators, utilitarianism will not work.
Utilitarians don’t like crime,
because it’s a form of pain. But then
utilitarians don’t like punishment
either, because it’s a form of pain, too.
They will only favor the pain of punishment if there will be a net gain
in terms of pleasure to society.
There are various categories of utilitarianism, but
the general ideas are:
·
We’re looking forward.
·
We’re trying to prevent
future harm.
·
We will only extract
punishment when it results in a net societal benefit.
Categories of Utilitarianism
1. General deterrence – when you punish one person for a crime in order to
send a message to society
2. Specific deterrence – when you deter person X by punishing person X:
a.
By incapacitation – you keep
the person off the streets
b. By intimidation – you make the person scared to do it again because
they remember how unpleasant the experience was being punished the first time
3. Rehabilitation – when you use the penal system to change the person
such that they won’t want to do bad acts in the future; you diagnose the
problem and then solve it
All of these categories are forward-looking.
Bentham is the leading
exponent of this theory.
Retributivism
You
can’t be angry at someone unless you believe they have the capacity to choose
to either do right or wrong.
The
retributivist says that it is society’s duty to punish and that this duty is
independent of the consequences or costs or benefits.
So retributivists
focus on people having free choice or free will.
If
someone lacks free will, it will undermine the justification for retributive
theories.
Other
differences between the theories
Utilitarians
don’t see punishment as inherently good; retributivists view punishment as
inherently good and justifiable because there is a right and a duty to punish
even if it doesn’t do any future good.
What’s
different about the way that utilitarians and retributivists talk? From what field of study do utilitarians seem
to come? They sound like
economists. They are trying to come up
with an empirical justification for punishment.
Retributivists think as moralists do.
Utilitarians talk about profit.
Retributivists talk about just deserts.
These people come from two different worlds; they tend to talk past each
other.
Retributivism
makes us look to our moral roots.
Actually, some forms of retributivism turn out to be forms of
utilitarianism.
The
thought experiment on p. 37: the sheriff and the homeless man. Is it true that what you don’t know can’t
hurt you?
It
is plausible to argue as a utilitarian, given a particular situation, that
punishing an innocent person would be the right thing to do. Is this enough to abandon utilitarianism?
Could
a retributivist punish an innocent person?
Categorically: no. You may only
punish a person who is guilty.
Categories
of Retributivism
1. Negative
retribution (utilitarianism*) – utilitarians, except punishing an innocent
person is never justified
2. Positive
retribution – pure retributivism: you must punish guilty people,
and you must never punish an innocent person
a. Assultive – anger and hatred are morally right when directed at criminals. This is kind of a disguised utilitarianism:
if people hate a criminal, they will institution private justice. So with the criminal justice system, we
prevent vigilantism. This views a
criminal as a worthless human being who deserves what they get.
b. Protective – Morris, and the classic modern retributive theory. The importance of the theory is that it views
the criminal as having the right to be punished.
c. Victim vindication
– we vindicate the victim’s moral rights by punishing the perpetrator.
If
you’re a pure utilitarian, how do you respond to the case of the rapist on page
38?
Would
a utilitarian favor a three strikes law?
They might oppose it from an efficiency standpoint. They might also oppose it from the point of
view that punishment is a social cost.
Would it be cheaper to let them out?
Some
people who commit a crime are not likely to commit a crime again. Others have a high recidivism rate.
So most utilitarians are unhappy with a three strikes law like the one
in
Example
of Burglary
There
is a 7% chance that you will get arrested if you burgle. If you get arrested, 88% of them get
prosecuted. Of the 88%, 82% get
convicted and 77% of those who are convicted get jail time. That means with the current amount of jail
time, each burglary gets you an expected punishment of 5.4 days in prison. So it might be worth it.
What
should we do?
We
could increase the punishment. We could
retain the punishment, but increase the chance the burglars will get arrested.
Even
if you reduce the punishment by 50% but increase the chance of arrest
five-fold, you’d get even higher punishment.
It
is not inevitable that increasing punishment increases deterrence.
The
Queen v. Dudley and Stephens
We
were given the facts of this case, but we were not given the ruling.
Should
Dudley and Stephens have been punished for their conduct?
Did
Dudley and Stephens do the wrong thing?
What
if the people on the boat had drawn lots, and everyone
had agreed to it, but then the boy lost and he revoked his consent?
Does
their deliberation before the act make it more or less wrong?
Do
they have an excuse for their actions?
How
did the prosecutor in this case learn what took place? They must have gotten the information from
someone on the boat. Dudley and Stephens
admitted what they did. They felt
guilty. But also, at the time that this
took place, it was accepted behavior in maritime
common law to eat someone in dire circumstances. Dudley and Stephens thought they wouldn’t get
in trouble.
The
prosecutor actually decided it was time to change the maritime law, and that
killing would no longer be accepted as an alternative. We will use Dudley and Stephens as an object
lesson for the purpose of general deterrence.
Even if Dudley and Stephens aren’t deterrable
in their particular case, the utilitarian must still find they are a useful
example to others.
This
case would send a message to be certain you are prepared when you go out on a
boat because you’re going to be held liable for whatever goes on out there.
As
we proceed through the semester, we will see that each punishment decision is
not merely specific to the crime and criminal at hand. As utilitarians, we might or might not create
a defense; as retributivists, we might shape a defense based on our ideas of
right and wrong. We should always be
asking ourselves if a particular rule makes sense from a retributive
perspective or from a utilitarian perspective.
Why might we have a rule that neither utilitarians nor retributivists
could justify?