Theories of Punishment
Justifications of punishment: Why and is the social institution of
punishment necessary? What are the necessary conditions for
punishment in particular cases? What is the degree of severity
appropriate for particular offenses and offenders
While imprisoned, a criminal has fewer opportunities to commit acts
causing harm to society.
Punishment may deter the criminal from committing future crimes.
Punishment may deter persons other than the criminal from committing
similar crimes for fear of incurring the same punishment.
Punishment is imposed to vent society’s sense of outrage and need for
Imprisonment provides the opportunity to mold or reform the criminal
into a person who, upon return to society, will conform his or her
behavior to societal norms.
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The publicity attending the trial, conviction, and punishment of some
criminals serves to educate the public to distinguish good and bad
conduct and to develop respect for the law.
Purpose of laws is to maximize the net happiness of society.
Pain inflicted by punishment is justifiable if, but only if, it is expected to
result in a reduction in the pain of crime that would otherwise occur.
Actions are morally right if, but only if, they result in desirable
Balance the expected benefits of the proposed conduct against the risks.
Threat or imposition of punishment can reduce crime.
Stress general deterrence. Defendant is punished in order to convince
the general community to forego criminal conduct in the future.
Specific deterrence is an alternative goal. Defendant’s punishment is
meant to deter future misconduct by defendant. Occurs in two ways:
o Deterrence by incapacitation. Defendant’s imprisonment
prevents him from committing crimes in the outside society
during the period of segregation.
o Deterrence by intimidation. Defendant’s punishment reminds
him that if he returns to a life of crime, he will experience more
Rehabilitation: goal is to reduce future crimes. Use correctional
system to reform the wrongdoer rather than secure compliance through
the fear or bad taste of punishment.
Look forward. Care about the past only to the extent that it helps them
to predict the future. Do not advocate punishment unless they believe it
will provide an overall social benefit
o Principle of utility: the tendency of each action to augment or
diminish the happiness of the party in question
General deterrence: knowledge that punishment will
follow crime generally deters criminals
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Individual deterrence: imposition of punishment
creates fear in offender that it will happen again if he
repeats the act
Incapacitation: imprisonment puts convicted criminals
out of circulation temporarily and the death penalty does
Reform: punishment may help reform the criminal so
that his wish to commit crimes is lessened and he becomes
a more useful person
Punishment is justified when it is deserved. It is deserved when the
wrongdoer freely chooses to violate society’s rules.
Wrongdoer should be punished whether or not it will result in a reduction
Look backward and justifies punishment solely on the basis of the
voluntary commission of a crime.
Retribution: looks at past. Punishment for purpose of punishment
Retributive Justifications: The right of the sovereign as supreme
power to inflict pain on someone because of a crime committed by him.
Cruel and Unusual Punishment
8th amendment, specifically the portion that forbids "cruel and unusual
punishment" along with my occasional one-liner came discussions of
Questions posed in class:
o -What constitutes "grossly disproportional" punishment?
o -Is the death penalty invariably cruel and unusual within the
meaning of the 8th Amendment?
Cases on point included: Coker vs. Georgia, Harmelin vs. Michigan
Proportionality in sentencing:
There is no consensus in the Supreme Court as to whether the 8th
amendment gives a proportionality guarantee to non-death penalty
crimes. Solemn v. Helm held that the 8th amendment did afford this
protection but in Harmelin v. Michigan, Justices Scalia and Rehnquist
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voted to abandon the decision in Solemn. From now on, therefore,
federal courts will provide only minimal proportionality oversight of non-
What are the punishment theories?
What are the types of deterrence?
How do we decide if something is a crime? Statutes.
Infamation—prosecutor brings charges.
US v. Jackson
Facts: Charged with armed robbery.
Notes: Posner uses economic approach to punishment theory: risks,
cost, and benefit analysis.
He was not specifically deterred.
General deterrent effect? Punished for initial bank robbery.
Is every sentence presumed to have a general deterrent effect?
Incapacitated=locked up=specifically deterred them (but not mentally).
He was given a life sentence instead of term of years. Specific deterrence
did not work. What should work? Incapacitation and general deterrence.
Have they given up on this individual?
Dissent: bank robberies taper off when people get older? Retribution is
not the correct method of punishment.
o Rejects complete incapacitation in the future but not the present.
o Rejects general deterrence because it is speculative.
o Market: put on robber in jail, opens up position for someone
else to move in.
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Federal Sentencing Guidelines
Has offense levels and career characteristics (i.e. first time offender).
Determinate type of sentencing structure.
Is it consistent?
No parole board.
Should remorse play a factor?
Coker v. Georgia
Facts: Escaped from prison. Convicted of rape and sentenced to death.
Notes: Vehicle being used for the appeal: 8th Amendment:
Jury decided the punishment. Judge decides whether or not to accept
jury’s decision. Death penalty is a separate, bifurcated proceeding.
What does jury weigh? Not looking at facts of case. Look at:
Aggravating circumstances and mitigating circumstances.
The court finds that the death penalty is not cruel & unusual punishment.
Is killing cruel and unusual? Does the punishment fit the crime?
Punishment cannot be excessive.
How do you determine whether something is excessive? See p. 64.
Acceptable goals of punishment? Not retribution. General deterrence.
What constitutes excessiveness? Georgia was the only state with death
penalty for rape: statistical evidence of what goes on in other states.
Two arguments raised by defendants: jury instruction, constitutionality
When is a sentence proportional?
Harmelin v. Michigan
D sentenced for life after conviction for possession of cocaine.
Solem: 3-Prong Test:
o Gravity of the offense,
o Same jurisdiction,
o Other jurisdictions
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The court concluded that Solem was wrong
Proportionality is a retributive concept
Should a sentence be proportional?
Death penalty is different.
o Can examine proportionality for a death penalty case but not for
o Death penalty is certain, not ambiguous.
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