Theories of Punishment Flashcards
(20 cards)
What are the utilitarian justifications?
Deterrence
Incapacitation
Rehabilitation
What is the non utilitarian justification?
Retribution
What is retribution?
Payment owed to society/ punishment for the crime. All about blameworthiness.
What are the problems of retribution?
Doesn’t account for underlying causes of why the criminal committed the crime. Culpability can be subjective (depends on judge weighing the culpability factors)
What is a good thing about retribution?
Limiting principle - the punishment should fit the crime, and can’t be excessive. Other theories don’t have this:
Deterrence - benefits society to make an example of people
Rehab/ incapacitation - works better with long sentences
Utilitarianism is fine with unfair result for benefit of society
What are the kinds of deterrence
General - making an example of someone so society at large learns their lesson
Specific - preventing one guy in particular from recidivism
What are the problems of deterrence
- No one thinks they will get caught
- Assumes people are doing rational cost-benefit
- People have different risk tolerances
- Some people aren’t capable of understanding consequences
- Who actually knows the letter of the law
What kind of crimes is deterrence effective for?
Crimes where people actually do a cost-benefit: traffic, white collar, economic
What is incapacitation?
Locking someone up so they can’t do crime
What are the problems of incapacitation?
- Punishment might not fit the crime
- Crime school
- Guy just does crime in jail instead of street
- Crime has a deep bench
What is rehabilitation?
Taking someone out of bad environment and putting them in good environment so they will learn the error of their ways
What are the problems of rehabilitation?
- Needs long sentences to ‘fix’ people
- Crime school
- Prison has big housing/employment effects that prevent people from getting back to normal life afterwards
What is the expressive functions of punishment?
Educates ∆ and society about what we do and don’t tolerate
Is civil commitment a punishment?
NO
Majority rule: civil commitment of potential released inmates based on sex offenses isn’t criminal punishment and isn’t double jeopardy
How do we determine if a punishment violates the proportionality principle (no cruel and unusual)?
- Categorical approach
2. Term of years approach
What is the categorical approach to the proportionality principle?
Two prong test
1. Objective - Society’s Standards
Look at different states’ practices (sentencing statutes and conviction rates/ real sentences) to see if there is a national consensus for or against this type of sentencing
- Subjective - Judge’s Opinion on Constitutionality
Judge will try to find a justification within theories of punishment– if they can’t, it’s cruel and unusual
What are the constitutional bars on punishment?
- Juveniles can’t get the death penalty
- Retarded adults can’t get the death penalty
- Juveniles can’t get LWOP for non-homicide
- Juveniles can’t get mandatory LWOP for homicide - must be meaningful POSSIBILITY of parole
- ONLY murder and treason can get death penalty
What is a mandatory minimum?
Statutory limit to the smallest possible sentence a judge can give a convicted defendant for an offense
What is a sentencing guideline?
Written by judges, lawyers, academics – not that strict, just a starting point, legislature doesn’t approve them, just ‘advisory’
Supposed to fine tune, promote predictability, uniformity
Main considerations are gravity of offense/ criminal history
What is the majority rule around any facts that might affect sentencing?
All facts that affect sentencing must be proven at trial beyond a reasonable doubt
NOT at sentencing hearing
