Crim: Purposes Of Punishment

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Utilitarianism

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The basic premise of utilitarian explanations is that we should inflict punishment only if some "good" is achieved by the act. That "good"-- primarily a reduction in crime-- can come in three forms: (1) deterence; (2) incapacitation; and (3) rehabilitation.

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Deterrence

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Deterrence theory posits that punishment may reduce crime in two ways: (1) D can decide not to commit future crimes; or (2) other persons, contemplating criminal conduct and learning of the threatened punishment, will decide not to do so.

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Assumptions of Deterrence

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To be effective, deterrence requires that: (1) D receives accurate notice of the threat against him; and (2) he perceives the threat to be credible. This requires two further suppositions: (1) D thinks that he will be captured; and (2) when captured, he will be punished as threatened.

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Criticisms of Deterrence

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Unfortunately, statistics indicate that most criminals are not captured. Further, every criminal, even if he thinks that the capture rate is "high" in general, believes that he is smart enough to avoid capture. Otherwise, he would not commit the crime. Further, deterrence requires that the defendant "weigh" the pleasures of the criminal act against the possibility of punishment. Many crimes are acts of passion rather than deliberation.

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Incapacitation

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Incapacitation theory is based on the notion that those who have committed criminal acts in the past are more likely to do so in the future. Thus, for the good of society, they must be prevented from reoffending.

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Assumptions of Incapacitation

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Incapacitationists must either: (1) punish everyone equally for long periods of time; or (2) accurately identify those who are most likely to offend and impose on them lengthy periods of incarceration. Further, for the incapacitationist theory to work, we must ignore (or not care about) crime which occurs in prison. We must assume that prison does not serve as a training ground for people to commit more crimes. We must also assume that incarcerated prisoners will not be replaced, or that their incarceration will not breed more crime (e.g., fatherless children).

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Criticisms of Incapacitation

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First, it is difficult or impossible to accurately predict who will recidivate. Second, incapacitationist theory ignores the so-called "replacement phenonemon" in crime. Many crimes are "market driven," and when one supplier of goods is incarcerated, another supplier will replace him.

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Rehabilitation

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Rehabilitation is premised on the notion that offenders can be "changed" into nonoffenders if given proper "treatment."

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Assumptions of Rehabilitation

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First, the rehabilitationist theory requires that we can accurately predict when someone has been rehabilitated. Second, the rehabilitationist theory (like the incapacitationist one), requires an indeterminate sentence for each criminal because the "symptoms" and "cure" differ with each individual. Third, it assumes that people can change and that prisons are capable of changing them.

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Criticisms of Rehabilitation

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First, studies have generally failed to provide any evidence that "treatment" during prison works. Second, we have often held people for very long periods of time under the auspices of "treatment." Third, rehabilitation may undercut the notion that people are personally responsible for their actions.

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Retribution

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Retribution argues that persons who choose to do wrong (i.e., criminal acts) deserves punishment, and that it should be imposed on them even if it serves no utilitarian purpose.

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Assumptions of Retribution

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Retributive theory restricts punishment only to those who have made moral, willing choices. It would not allow the state to punish those who had no little or no choice (such as the mentally ill or the duressed). Nor would retribution allow criminal confinment based on prediction of future acts.

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Criticisms of Retribution

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One weakness in retributive theory is its difficulty in explaining how punishment "makes up" for the criminal act.

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Sentencing Guidelines

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The federal sentencing guidelines are part of an overall sentencing reform package that took effect in the mid-1960’s. Before the guidelines took effect, sentences were typically “indeterminate.” Judges would sentence prisoners to a range of years, at their discretion, and parole boards would make decisions on when to release. After the sentencing guidelines were put in place, there was a shift to “determinate” sentencing, or sentences of fixed-length. But in U.S. v. Booker, the Supreme Court held that federal sentencing guidelines are only constitutional if they are regarded as “advisory” rather than mandatory.

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Apprendi

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Any fact or factor (other than a previous conviction) which increases the sentence is treated like an element of the offense.

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Proportionality

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Sentences need not be strictly proportionate with the crime, but the 8th Amendment forbids grossly disproportionate (i.e. "cruel and unusual") punishment.

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Ewing v. California

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California's three strikes law does not violate the 8th Amendment's ban on cruel and unusual punishments.