week 6 : civil disobedience and punishment Flashcards
(19 cards)
Theories of punishment: crime
A crime is a public wrong
Affects both particular victim and public at large
‘we should interpret a public wrong not as a wrong that injures the public, but as one that properly concerns the public, i.e. the polity as a whole’ (Duff 2007)
Concept of punishment
Content/nature of punishment is intentional infliction of suffering
Hart’s definition of punishment (5 cumulative elements of punishment):
1. it must involve pain/other consequences normally considered unpleasant
2. it must be for an offence against legal rules 3. it must be of an actual/supposed offender for his offence 4. it must be intentionally administered by human beings other than the offender; AND 5. it must be imposed and administered by an authority constituted by a legal system against which the offence is committed (jurisdiction)
Packer adds a sixth element: punishment serves retribution and/or prevention
Criminal sanctions
Punishment:
- Imprisonment
- Monetary sanctions
- Etc.
Non-punitive measures:
- Forced treatment in clinic, Etc.
Enlightenment and criminal law
Theories of punishment offer solid justification need in order to legitimise the inherently violent character of punishment
-> Limitation of punishment
Retributive theories of punishment
** Foundation:**
Man is in principle a reasonable individual w free will -> responsible for his conduct
An inextricable connection b/w punishment and guilt (culpability or blameworthiness)
- Only when a crime has been freely committed can it be repaid w punishment:
□ No punishment w/o guilt
□ Punish because a crime was committed (focus on the past)
Whom to punish:
The guilty offender
Why punish:
Bc a crime has been committed
- Punishment intrinsically good bc its purifying
- In order to ‘settle the score’
- To restore status quo ante
- To satisfy feelings of vengeance
- To express moral disapproval
- >Justifications include: purification, restoring balance, expressing moral condemnation
Severity of punishment should be proportional to:
- Seriousness of criminal act committed AND
- Culpability that can be attributed for it to offender
-> ‘just punishment’
Criticism:
punishment may not restore harm; retribution can be vengeful; justice not always achieved
Utilitarian theories of punishment
Foundation:
Man does not have free will and can be influenced by biological, psychological and social factors
-> theory of causal determinism (denying the traditional libertarian free will)
-> Punish to prevent future crimes (focus on the future)
Main question:
Will offender act differently in future if they are punished?
- Emphasis on deterrence, incapacitation, and rehabilitation
Punishment required so that future crimes may be prevented
How is prevention (special [s] and general [g]) to be achieved in practice?
- incapacitation (s)
- deterrence (g)
- social re-integration and rehabilitation (s)
- preventing of taking justice into ones own hands through state’s channelled vengeance (g)
Crime is a social risk that needs to be controlled by means of punishment
Concerned with social risk, not moral guilt
Severity of punishment determined by:
1. Seriousness of the crime AND
2. Risk offender poses to society
** Punishment justified when:**
- Acc prevents future crimes
- Subsidiarity:
□ No adequate instrument of lesser evil exists - Proportionality
**Criticisms: **
weak evidence of deterrence; dehumanization; justification of punishing innocents in theory
Hybrid theories of punishment
Reconciliation or synthesis of retributive and utilitarian theories of punishment
** Negative theories of retribution:**
Retribution is the general justification for punishment
BUT mitigated by utilitarian considerations (e.g. less punishment than demanded by retribution or no punishment at all)
Prevention is general justification for punishment
BUT mitigated by retributive considerations (e.g. only guilty offenders)
Combine retributive and utilitarian elements.
Two types:
- Retribution as foundation, tempered by utility.
- Prevention as foundation, limited by retributive constraints
–> Problems include internal conflict and difficulty balancing human views
Goals of punishment in criminal politics
After WW2- Penal Welfarism (1945-75):
○ focus on re-socialisation and re-integration of offenders
○ Criminals seen as reformable, attention to social causes
- > Social engineering of man
Rise of Retribution 1975-85:
○ ‘nothing works’ and re-invention of retribution and the prison
- Crime and recidivism increased
- Faith in resocialization declined
- Retribution resurged as just deserts
○ Prison seen as necessary despite criminogenic effects
-> Increase in imprisonment
Risk Management Era 1985-2001:
○ Crime control, risk management and negative prevention
- Efficiency and deterrence prioritized
- Law became instrumentalized
- Rise of negative prevention:
□ deterrence and incapacitation over rehabilitation
–> Diminishing legal safeguards, zero-tolerance policing
Security Politics : 9/11 and subsequent terrorist attacks: 2001-present:
○ Criminal law as main instrument of security politics
-> Security is main overarching goal of justice (e.g. risk assessments)
-> Instrumentalization of criminal law
-> Criminal law has become primum remedium as an instrument of security politics
· Criminal law used for counter-terrorism and risk prevention
increase in criminalisation and penalisation of high-risk behaviour and decrease in procedural safeguards if suspects
issues in punishment on grounds of retribution/prevention
Punishing often self-evident on grounds of retribution/prevention
Issue: In certain cases not always obvious
E.g. Nazis escaping and tracked down decades later
- Can they still be punished decades after crime committed, likely when they were young? - Punishing would not prevent reoffending after sm time - May discourage others from committing similar crimes?
- Main goal retribution
- Deserve punishment bc crimes not yet atoned for
- But does debt wear off in years, does punishment have meaning in their final years?
- Some may feel no remorse but
◊ If symbolically repairs harm by leading good life and doing good for society is retribution still self-evident?
E.g. serious murder long sentences
- After many years many offenders have new outlook on life and low risk of reoffending
- Can life sentence justify sentencing until death? - NL and UK yes - Many EU countries allow review after certain time
Issue: retribution/prevention may conflict in less extreme cases
Judged may have doubts on sanction deserved
· Retributive: imprisonment desired
· Preventative: community service/waived sentence may be more appropriate
Retributive can have Negative impact on offenders life (loss of job/partner, stigma, ‘high school for criminals’)
- conflicts w preventative
- Some offences so serious judge cannot impose any other sentence than imprisonment
Individualisation of sentencing
Individualisation:
the sentence needs to fit the seriousness of the criminal offence AND personality of the perpetrator
-> Important principle of criminal law
Numerous types of criminal sanctions
○ Prescribed ranges for sanctioning in relation to particular crimes (min and/or max) and different forms of an offence
○ Mitigating and aggravating factors
○ Reduction or pardon of sentence
Less serious case of murder:
German Criminal Code §213:
Whoever kills a person under the conditions of section 212 without any fault on their own part on account of being provoked to rage by ill-treatment of or serious insult to themselves or a relative by the person killed and being immediately carried away by that rage to commit the offence, or in the event of an otherwise less serious case, the penalty is imprisonment for a term b/w 1 year and 10 years
Individualisation of sentencing: Courts obligations
Principle of individualisation of sentencing poses certain obligations to courts
In each particular case court obliged to assess:
1. Seriousness of the criminal offence
2. degree of perpetrator’s guilt AND
3. their personality
-> Judicial individualisation: choosing most appropriate sentence in particular case
Individualisation of sentencing: Equity before the law?
Is there limit to how much we should take offender’s personality into account when determining sentence?
- can lead to unequal treatment of offenders of the same/similar criminal offences
-> breaches principle of equality before the law
Consistency of sentencing:
- Sentencing guidelines
- Choice explained in reasoning of court
Individualisation of sentencing: Mitigating and aggravating factors
Factors/circumstances that determine sentence within specific range relating to particular offence
These factors sometimes prescribed in provision itself, their use is up to the court
Factors:
Objective:
□ Refer to criminal offence and its objective circumstances
Subjective:
□ Refer to offenders guilt and personality
Examples:
- Level of offenders guilt
- Offenders motive in regard to crime
- Circumstances in which the offence has been committed (subj. / obj.)
- Personal and economic conditions of offender
- Behaviour of offender after committed offence
- Repaying the damage
Reduction of sentence
The possibility for the court to give a sentence which is lighter than the prescribed min sentence or official guidelines + possibility to opt for lighter type of sentence
-> For cases in which the seriousness of criminal offence lower than min prescribed sentence by law/guidelines
□ Provision explicitly provides for this possibility (e.g. attempt, self-defence-excess)
□ Special circumstances that are explicitly mentioned in description of criminal offence (e.g. kidnapping)
In regard to any criminal offence
□ if there are such mitigating factors that justify Reduction of sentence
□ [+ achieve goals of special and general prevention]
Attempt: Slovenian CC Article 34:
*1. Whoever intentionally begins an offence but does not complete it shall be punished for the attempt, if it is an offence punishable under the law by 3 years of imprisonment or a higher sentence; an attempt of other offences is only punishable if the law expressly provides this.
The offender shall be punished for the attempt within the limits of the penalty prescribed for the offence, but may be punished more leniently *
Judicial pardon
The possibility of the court to not impose penalty on offender at all
Offender still convicted, sentence given, but not imposed
**For cases: **
1. In which it would not be just to punish offender AND
2. offence very minor
> Some jurisdictions ONLY when law explicitly provides this possibility
Dutch CC Article 9(a):
* If the judge considers it advisable in the view of the low gravity of the offence, the personality of the offender, or the circumstances under which the offence was committed, or which occurred afterwards, he may stipulate in the judgement that no punishment or measure will be imposed*
Slovenian CC Article 27:
1. An offence committed out of negligence shall be punishable only if the law so provides
2. The court may decide not to impose the penalty to a perpetrator who has committed a criminal offence through negligence, if the consequences of the act have so affected the perpetrator that punishment in such a case would clearly not be justified
Dispensing with penalty: German CC §60
The court dispenses w imposing a penalty if the consequences of the offence suffered by the offender are so serious that the imposition of penalties would clearly be inappropriate. This does not apply if the offender has incurred a penalty of imprisonment for a term of more than 1 year for the offence.
Responding to civil disobedience (Brownlee)
Punishing Civil Disobedience:
Debate: should disobedients be punished at all, and if so, how?
Arguments for equal/more severe punishment:
- Upholds proportionality and rule of law.
- Deters imitation and public disruption.
- Avoids signalling tolerance of lawbreaking.
Arguments for leniency:
- Civil disobedience contributes to democratic culture.
- State has a duty to soften consequences for conscientious actors.
- Prosecutors/judges should use discretion to minimize penalties.
- Open court dialogue could legitimize protest and promote justice
Accommodating Civil Disobedience:
Police often use repressive strategies, but can instead use discretion.
○ Smith (2013): advocates for a “policing philosophy” of cooperation and communication.
Civil disobedients could be allowed to express dissent safely and effectively.
Proposals include:
- “Demands-of-conviction” defence: explains moral motivation.
- Necessity defence: justified as urgent response to rights threats.
Institutional reform should allow disobedients to be heard without being silenced by harsh legal processes.
Which two main theories of punishment are identified by Jacques Claessen in Chapter 1 of Comparative Concepts of Criminal Law (mandatory reading for the lecture)? Explain for each theory who should be punished, why one should be punished and how severely.
1. Retributive Theories
Who should be punished?
□ Individuals who have committed a crime freely and culpably (with blameworthiness)
□ The theory assumes people have free will and are therefore morally responsible
Why should someone be punished?
□ Because a crime has been committed (quia peccatum)
- Punishment is seen as a moral requirement to “settle the score” and restore justice
How severely?
□ Severity should be proportional to the seriousness of the crime and the degree of culpability
□ The offender must not be punished more or less than they deserve
2. Utilitarian Theories
Who should be punished?
□ Anyone whose punishment will help prevent future crimes
□ The focus is less on free will and more on dangerousness or social risk
Why should someone be punished?
□ To prevent future crime (ne peccetur)
□ Punishment is justified only if it leads to beneficial outcomes like deterrence, incapacitation, rehabilitation, or norm reinforcement
How severely?
□ Punishment should be no more severe than necessary to achieve preventio
□ It must respect subsidiarity (least harmful means) and proportionality (weighing harm of punishment vs. crime)
What are the criticisms towards each theory of punishment?
Retributive Theories – Criticisms:
- Moral Doubts:
Inflicting suffering for its own sake may be a moral evil. - Restoration Illusion:
The past cannot truly be undone or balanced. - Revenge or Justice?:
Retribution may mask revenge rather than principled justice. - Purification Myths:
Punishment rarely “purifies” or improves individuals in reality. - Rigid Formalism:
It can lead to harsh punishment even when it has no positive outcome.
Utilitarian Theories – Criticisms:
1. Measurement Problems:
Effectiveness of prevention is empirically unclear (e.g., high recidivism).
- Risk of Injustice:
Could justify punishing the innocent if it served general deterrence. - Dehumanisation:
Treats offenders as objects to control, not moral agents. - Assumes Rationality:
Many crimes are not rational cost-benefit decisions. - Harsh Consequences:
May justify excessive punishment if someone is seen as a “high risk.”
best potential sentence for civil disobedient luca
- Luca is a 22-year-old ‘Law in Society’ student and an active member of ‘Rescue the Planet.’ Next to their work for ‘Rescue the Planet’ and their studies, Luca works as an animal rescuer for the local animal shelter in Amsterdam and is about to start an internship at a daily newspaper. In the past two years, Luca has been present at almost every protest, has occasionally given a speech and helped organise several of their actions.
- Consequently, Luca is no stranger to the police and has been arrested several times during their peaceful, yet illegal, protests. Most of the time, their arrests resulted in a brief stay at the police station after which they were released without charges. In addition, Luca was arrested three years ago for an assault during a pub crawl. This arrest did lead to a charge and a sentence of 60 hours of community service, resulting in a criminal record.
- As part of the ‘Rescue the Planet’ protest at the Rijksmuseum, Luca was one of the two activists who glued themselves to the wall next to the Vermeer painting and threw the soup at the Vermeer’s “The Milkmaid.” While the painting itself was protected by a visible glass barrier, the original frame was heavily damaged by the soup.
- Accordingly, Luca was charged with damage to property under Article 350 of the Dutch Criminal Code. The maximum sentence that the court can impose for this crime is two years of imprisonment. According to the sentencing guidelines, damage of property resulting in severe damage is punished by community service of 30 hours or more.
Given the cultural significance of the Vermeer painting and the irreplaceability of the original frame, Luca’s case is regarded as a special case. The judge considers that the necessity defence does not apply, finds Luca guilty of damage to property and is faced with the task of deciding an appropriate sentence. Assume that you are working as a legal advisor at court and the judge asks you for a reasoned opinion on this matter.
Issue
* What is the appropriate sentence for Luca, a civilly disobedient environmental activist convicted of damaging the frame of a Vermeer painting, considering the Dutch Criminal Code, sentencing guidelines, and relevant legal and philosophical theories on punishment?
Rule
Legal framework:
* Article 350 Dutch Criminal Code: Maximum sentence = 2 years’ imprisonment.
* Sentencing guideline: Severe property damage = community service of 30+ hours.
Theories of punishment:
* Retributive: Punish because a wrong was committed. Proportional to harm and culpability.
* Utilitarian: Punish only to prevent future crime. Requires deterrence, rehabilitation, or incapacitation.
* Hybrid: Combine both; apply retribution constrained by utility or vice versa.
Responding to civil disobedience (Brownlee, Dworkin, Rawls):
* Civil disobedience can be a public good, contributing to democracy.
* Arguments for leniency: sincere moral conviction, low recidivism, democratic value.
* Arguments for severity: uphold rule of law, avoid proliferation, reassure public order.
* Judicial discretion may lead to reduction or judicial pardon (Dutch CC Art. 9a).
Application
Potential Sentences
* Community service (30–60 hours): aligns with standard punishment for severe property damage.
* Fine: Could signal disapproval without disproportionate harm to Luca’s future.
* Imprisonment (up to 2 years): legally possible but disproportionate.
* Judicial pardon (Art. 9a Dutch CC): if seriousness is low and considering Luca’s motives.
* Suspended sentence: conditional non-enforcement, possibly paired with restorative conditions.
Reasons for Leniency
* Nature of act: Symbolic protest targeting a state policy, not personal gain — aligns with traditional civil disobedience features (conscientious, public, communicative).
* No intent to harm the artwork: Painting was protected; frame damage was collateral.
* Moral conviction: Driven by climate justice concerns — sincere, serious, and principled.
* Democratic function: As per Brownlee, civil disobedience can enhance democratic legitimacy and invite public reflection.
* Personal development: Luca is a student, committed to public service and animal rescue — prospects for rehabilitation are strong.
Reasons against leniency
* Previous criminal record (assault): aggravating factor.
* Repeat protest arrests: pattern of defiance, possibly undermining general prevention.
* Cultural significance of target: Irreplaceable frame heightens symbolic gravity.
Individualisation
* Under individualisation principle, sentencing must balance:
- Seriousness of crime: Moderate — damage to artwork frame, not artwork itself.
- Culpability: High intention, but morally driven.
- Offender’s personality: Empathetic, engaged, not dangerous.
- Mitigating factors: youth, public-spiritedness, non-violent record in protests, communication of responsibility.
- Aggravating factors: prior conviction, calculated protest, high-profile target.
Conclusion
* Given the hybrid theory of punishment, a sentence should express moral disapproval (retributive) but avoid excessive suffering (utilitarian), especially in conscientious protest cases.
* Recommended sentence:
- Community service (around 60 hours) paired with a suspended fine or sentence and a statement of judicial recognition of the protest’s conscientious nature.
- If considered appropriate, invoke judicial leniency under Article 9a due to Luca’s principled motivation and the low threat of reoffending.
This approach ensures proportionality, respects individualisation, and recognises the democratic role of civil disobedience while upholding the rule of law.
