Criminal Law Ouline

OUTLINE FOR CRIM LAW

Punishment

1 Retributivism

1 Individual

2 Sense of just deserts

1 US v. Bergman – doctor convicted of defrauding a nursing home. Court would not let him have a punishment of philanthropic work, though this would help society more, because he “deserved” some punishment, and doing what he already liked doing wouldn’t be punishment.

3 Backward-looking

4 Ideas of self-restraint, the inability for a society to function if some give in to their animal instincts

5 Not for the victims only, but an expression of societal condemnation?

2 Utilitarianism

1 Balance – pleasure/pain calculation (from Bentham)

1 Criminals calculate

2 Society calculates

1 US v.Johnson – woman convicted a crime, but had a stable home for 4? Children. Court punished her to house arrest, as they did not want 4 innocents to suffer for 1 person’s crime.

2 Forward-looking; used to improve society

3 Deterrence

1 Criminals rationally calculate - If threat of pain is greater than possible pleasure, they won’t act (Bentham, Posner)

1 US v. Bergman – doctor defrauded nursing home patients. Gave him a sentence to deter other greedy folks, though it recognized that he probably wouldn’t try to do it again and was not a danger to anyone..

2 If violence is inherently irrational, then they won’t calculate (Gilligan)

3 Punishment must fit the crime.

1 If the punishment is too great, then it will deter rational innocent actors for anything associated with the activity, even legal action.

2 That is cost on society that is greater than the benefit of deterring criminals.

4 Certainty is better than severity

1 As important to appear effective as to be effective

2 Increasing severity too much may decrease percentage of convictions

5 Use of stigma as a deterrent

1 Effective

2 Goes against the democratic concept of allowing courts to determine (and regulate) punishment

4 Incapacitation

1 Society is better if the...