Theories of Punishment

Question 1

Utilitarianism

Answer 1

Forward looking: Punish to the extent the benefits exceed the costs of doing so

Incentives need to be known, predictable, and effective

Critiques:

• Doesn’t care enough about individual rights
• Perverse consequences where individuals can escape punishment or receive very disproportionate sentences based on the effects
• Punishment of innocent to show that someone will be held accountable

Question 2

Deterrence Theory

Answer 2

philosophy of criminal justice arising from the notion that crime results from a rational calculation of its costs and benefits

Not clear that more punishment = more deterrence

Better to increase the expected punishment through higher probability of punishment than higher amount of punishment

specific vs. general deterrence

Question 3

Retributivism

Answer 3

Backward Looking: Punish to the extent that moral blame and proportionality allow

Proponents: Society MUST punish blameworthy

Critiques:

• two wrongs don’t make a right,
• Setting the right amount of punishment is difficult: Really easy to agree on rankings of crimes but not on absolute amount of punishment that’s appropriate.
• We may have biases/other bad reasons that inform how much punishment we think is deserved
• Unexpected Harm: How do you deal with the case when someone doesn’t intend to cause harm and does something that they don’t think will but it does (fire)

Negatives: Use moral blame to set the upper limits on punishment (may opt to punish less based on utilitarian concerns)

moral desert—people who commit crimes deserve to be punished. HATE SL.

Question 4

Expressive function

Answer 4

Law shapes norms of behavior. Law as teaching tool.

Question 5

Incapacitation

Answer 5

keeping criminals off the streets, rationale for “3 strikes rules”

Question 6

rehabilitation

Answer 6

everyone is reformable, time in prison can and should make prisoners contributing members of society

Question 7

Implications for sentencing (policy considerations)

Answer 7

Both utilitarian (deterrence) and retributivist concerns (desert) can impact sentence length

• Until 1970s was pretty much the trial judge’s prerogative.
• Majority of states still that way but others restrict his discretion through mandatory mins/maxes, sentencing guidelines, or appellate review.

Question 8

US v. Madoff

Answer 8

Issue: whether the judge would allow the maximum sentence (150 years based off stacking the individual ones) or something that might allow Mr. Madoff the possibility of getting out of jail within his lifetime (already an old man, limited life expectancy).

Holding: Judge upholds maximum sentencing b/c
> expressive function: Madoff’s conduct violated society’s trust in institutions that make it work; Wasn’t just hurting the rich, these were vulnerable people. We need to restore their/society’s trust.
> Retribution: M has a lot to be punished for, we need to set the rules and agreements for society and hold them up. He was evil
> Deterrence: Need to let others know they won’t get off the hook. Seems important for younger possible offenders.

Question 9

US v Jackson

Answer 9

Facts: Jackson put in “work release program” robs a bank in 30 mins

Easterbrook: career criminal, general deterrence has failed, need incapacitation

Posner: no point in locking him up for so much longer, bank-robbing is a young man’s job, unlikely to do it again if put in jail for shorter time