Criminal Law Class Notes 8/25/03


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.




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.




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 California.


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?


Back to Class Notes