CRIMINAL LAW
Lecture 8/24
Send email with name in subject line and criminal law and tell about yourself- where you
went to undergrad, any connection to crim law (work experience)
Bring name cards to class
Theories of Punishment
3 famous questions: why do we punish, who, and how
In US we used incarceration as punishment
US has highest number of incarceration in world, and highest per capita; has skyrocketed
since 80s
Has been subject of debate
We answer these questions through incarceration
Different sentencing theories:
1) utilitarianism: punishment should serve useful purpose, punishment is unpleasant;
goal > harm
-Jeremy Betham
-4 types:
*general deterrence- punishment sends a message and discourages others
*individual deterrence- encourages indiv. Not to do it again
-change behavior b/c youre afraid of being punished again
*incapacitation- prevent them from doing more harm
*reform/rehabilitation- person can learn through their mistakes by
becoming more productive
-changes your character
-fell out of favor in 1970s, replaced with retributive
-what works? And when is it fair to offer it?
*marginal deterrence- ex: if you steal $5 or more, get 100 year prison
sentence; person who might have wanted to steal $5 now might
steal
$5000
-whether or not deterrence works is a complicated question
-its the certainty of punishment, not the length, that can make the difference in deterrence
-if you get to high enough rate of incarceration in a city it can actually cause social instability
and actually cause more crime
Criticisms:
-uses people as an example, not respectable of persons free will
-can justify actions that are unfair (harm done to one person less than harm done to bunch of
people, so punish the one person)
2) retributive: focuses on free will; we punish you b/c you deserve it
-assault retrib.- its okay to hate criminals, they should be looked down upon
-protective retrib.- treating criminal as a human and giving the punishment they deserve; giving
respect to someone as a moral actor; restores moral balance
other things affect sentencing other than these theories, such as political pressures, social
pressures, etc.
ARTICLE
Utilitarianism: general deterrence, indiv. deterrence
Retributive element
just the pain and suffering of losing his daughter- natural punishment
Sanction- 1 day in prison for 7 years on her bday, volunteer 2 hrs a week, and do annual
blood drive on weekend following her death, 7 yrs probation, and monitoring/supervision by
social services
QUESTIONS TO THINK ABOUT:
What is the normative message that is sent through diff sanctions and how can they be
interpreted?
Imagine a parent without a spouse, would you send that person to prison?
