Crim Law - General justifying aims

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zeth006
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Crim Law - General justifying aims

Postby zeth006 » Wed Dec 01, 2010 6:11 pm

My crim professor almost always has an exam question on policy.


I've always been kind of iffy on policy. But could someone PM me or post here some of the theories of punishment and their summaries to watch for?

I'm a bit fuzzy especially on "desert" and "utilitarianism." I know that retributive justice, especially "desert" says we should punish people as much as they deserve to be depending on the harm of their acts. It shows the society that the government cares about the rights of the victim.

How is that different from general deterrence, which says we should scare society into obeying the law by punishing criminals and make a lesson out of punishment?

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BarbellDreams
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Re: Crim Law - General justifying aims

Postby BarbellDreams » Wed Dec 01, 2010 7:26 pm

I second this, and would appreciate any help as our prof also likes policy stuff and I, well, don't.

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Kilpatrick
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Re: Crim Law - General justifying aims

Postby Kilpatrick » Wed Dec 01, 2010 7:43 pm

Fellow 1l so take with a grain of salt but - the difference between retributive theory and utilitarian is that retributive is concerned with moral culpability. So people should be punished because they did something wrong. Whether that deters other criminals is irrelevant, whether it actually does any good for anybody is irrelevant.

But utilitarianism is not concerned with culpability, only with the usefulness of the punishment. The good it does for society - whether that's deterring others from committing crimes or keeping criminals isolated from others etc.

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beach_terror
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Re: Crim Law - General justifying aims

Postby beach_terror » Wed Dec 01, 2010 8:23 pm

Utilitarian theories are based on maximizing social welfare. It's basically like an economical analysis where you compare the pros and cons of doing something or failing to do something.

So for necessity - where the social benefits of the crime outweigh the social costs of failing to commit the crime, utilitarianism promotes committing the crime. E.g. trespassing to sleep in a house and eat when your helicopter crashes over Mount Everest - utilitarianism wouldn't promote punishment.

It's kind of shiesty to apply, but you can spin an argument for it when it's pretty clear. Will [insert punishment here] increase aggregate happiness in the community? (would people be more upset with a dead guy, or with a guy that took some stuff to survive from an empty house?)

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zeth006
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Re: Crim Law - General justifying aims

Postby zeth006 » Wed Dec 01, 2010 8:29 pm

Helpful posts so far.

Could someone explain to this noob what exactly is this "social contract" theory that the A tests seem to bring up occasionally? It's been mentioned in context of some guy committing murder/robbery and thus violating this "social contract" with society.

kxz
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Re: Crim Law - General justifying aims

Postby kxz » Wed Dec 01, 2010 9:03 pm

I think that the social contract is that people in a society have a duty to act in a reasonable manner towards one another. Thus, murdering someone is contrary and thus violates the social contract. Correct me if I'm wrong though.

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kalvano
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Re: Crim Law - General justifying aims

Postby kalvano » Thu Dec 02, 2010 1:09 am

The free LexisNexis Crim outline has a nice page on theories of punishment.

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vanwinkle
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Re: Crim Law - General justifying aims

Postby vanwinkle » Thu Dec 02, 2010 1:37 am

Here, have some outline.

WHY DO WE PUNISH?

1) Prevention:
a) Prevention as justification for punishment, “social control”, deterrence, utilitarian goal; protection of public safety; this includes “rehabilitation”; we don’t put people in jail to make them better, we do it to teach people how to avoid reincarceration and to discourage them from committing crimes again, ultimately serving the goal of preventing future crime against society.
b) Limitation on punishment is utilitarian; deterrent force relies on public acceptance of the legitimacy of the law, grading must not excessively constrain liberty; Holmes: “A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.” (This is called socialization).
c) Insanity defense: Social control demands some form of incarceration because the individual is a threat to society, even if they did not intend the outcome.

2) Retribution:
a) Retribution as justification for punishment, blameworthiness, seeing a criminal get their “just desserts”; deep retributive overtones when people say they want to “see the offender pay for his crime”
b) Retribution also serves as limitation on punishment, free will, recognizing people have choices, choosing not to punish them unless they made a morally wrong choice, punish people less for lesser moral wrongs, more for greater moral wrongs (grading), proportionate response to criminal behavior
c) Insanity defense: Strong desire to see people punished for acts they intended, but a person lacking ability to form malicious intent does not deserve to "pay".

Tension between retribution and prevention goals: See insanity defense above.

Civil liberties concerns:
Society strongly respects civil liberties, liberty can be maximized only if people are given a fair chance to not be arrested, liberties at risk if police/courts have absolute freedom to arrest/prosecute for crimes. Civil liberties lead to certain constraints on courts’ ability to punish:
1) We limit liability to conduct, not status or predicted dangerousness
2) Conduct must be voluntary (an act premised on free will)
3) We want punishment to fit the crime (no life sentence for double parking)

Equality concerns:
Equal treatment under the law is an especially strong civil liberties concern; as a result, laws must be specific enough that the same standards can apply to all members of society. Inequality still happens, people and systems are flawed and prejudiced, but the law can be written in ways that either encourage or discourage unequal treatment. Society strongly prefers the latter.
1) Specificity of law allowing standardized application, determination of guilt
2) Equal enforcement by police toward all groups of people

Retroactivity concerns: Language is imprecise, law’s authors attempt to be overinclusive, this can lead to ambiguity as to whether something is illegal at the edges of the law. We want law to be specific enough that a person can anticipate in advance whether their behavior will be illegal, and we do not want people using ambiguity to declare behavior criminal after the fact and punish behavior that was not recognized as criminal at the time it was committed.

Retroactivity in courts is not defined by the Ex Post Facto provision of the federal Constitution. That clause only limits actions by the legislature. However, the Supreme Court has held that the Due Process clause limits retroactive crime creation by judges.

For courts to operate they require some retroactive interpretation; they always analyze the law after the crime is occurred to determine if it fits the crime or not. The line is blurry between appropriate interpretation and retroactive creation of new law.

Modern courts prefer not to create new law, but leave that to the legislature; however, they may still enforce and interpret existing common law crimes and interpretations

Rogers v. Tennessee – Supreme Court struck “year and a day” rule; did not change definition of criminal statute in any way, only changed interpretation; claim that defendant was still socialized to know his behavior was wrong, so there was no harm in changing the interpretation in this way.

Vagueness challenge:

Challenging a law for vagueness:
1) Law fails to give adequate notice/fair warning as to what is criminal
2) Vagueness of law allows arbitrary and discriminatory enforcement

Balance must be achieved between public protection and personal liberty; vagueness doctrine is very contextual, not to be overused, often applied more broadly to individuals displaying public behavior than business transactions, more civil liberties at stake with individuals and police actions

Beat a vagueness challenge by arguing greater need for social control
Make a vagueness challenge by arguing values/liberties trump enforcement

Fair warning also comes up in ex post facto disputes regarding “unforeseeable judicial enlargement of a criminal statute”; Keeler and broadening murder to cover a fetus; Bouie and broadening trespass; court often rules “ex post facto” is issue to dismiss cases without touching social issues (racism in Bouie, criminalizing of abortion in Keeler).

Merry Christmas.

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BruceWayne
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Re: Crim Law - General justifying aims

Postby BruceWayne » Thu Dec 02, 2010 1:39 am

^ Who did you have for Criminal?

kxz
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Re: Crim Law - General justifying aims

Postby kxz » Thu Dec 02, 2010 1:44 am

Nice info.

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zeth006
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Re: Crim Law - General justifying aims

Postby zeth006 » Thu Dec 02, 2010 1:48 am

vanwinkle wrote:Here, have some outline.

WHY DO WE PUNISH?

1) Prevention:
a) Prevention as justification for punishment, “social control”, deterrence, utilitarian goal; protection of public safety; this includes “rehabilitation”; we don’t put people in jail to make them better, we do it to teach people how to avoid reincarceration and to discourage them from committing crimes again, ultimately serving the goal of preventing future crime against society.
b) Limitation on punishment is utilitarian; deterrent force relies on public acceptance of the legitimacy of the law, grading must not excessively constrain liberty; Holmes: “A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.” (This is called socialization).
c) Insanity defense: Social control demands some form of incarceration because the individual is a threat to society, even if they did not intend the outcome.

2) Retribution:
a) Retribution as justification for punishment, blameworthiness, seeing a criminal get their “just desserts”; deep retributive overtones when people say they want to “see the offender pay for his crime”
b) Retribution also serves as limitation on punishment, free will, recognizing people have choices, choosing not to punish them unless they made a morally wrong choice, punish people less for lesser moral wrongs, more for greater moral wrongs (grading), proportionate response to criminal behavior
c) Insanity defense: Strong desire to see people punished for acts they intended, but a person lacking ability to form malicious intent does not deserve to "pay".

Tension between retribution and prevention goals: See insanity defense above.

Civil liberties concerns:
Society strongly respects civil liberties, liberty can be maximized only if people are given a fair chance to not be arrested, liberties at risk if police/courts have absolute freedom to arrest/prosecute for crimes. Civil liberties lead to certain constraints on courts’ ability to punish:
1) We limit liability to conduct, not status or predicted dangerousness
2) Conduct must be voluntary (an act premised on free will)
3) We want punishment to fit the crime (no life sentence for double parking)

Equality concerns:
Equal treatment under the law is an especially strong civil liberties concern; as a result, laws must be specific enough that the same standards can apply to all members of society. Inequality still happens, people and systems are flawed and prejudiced, but the law can be written in ways that either encourage or discourage unequal treatment. Society strongly prefers the latter.
1) Specificity of law allowing standardized application, determination of guilt
2) Equal enforcement by police toward all groups of people

Retroactivity concerns: Language is imprecise, law’s authors attempt to be overinclusive, this can lead to ambiguity as to whether something is illegal at the edges of the law. We want law to be specific enough that a person can anticipate in advance whether their behavior will be illegal, and we do not want people using ambiguity to declare behavior criminal after the fact and punish behavior that was not recognized as criminal at the time it was committed.

Retroactivity in courts is not defined by the Ex Post Facto provision of the federal Constitution. That clause only limits actions by the legislature. However, the Supreme Court has held that the Due Process clause limits retroactive crime creation by judges.

For courts to operate they require some retroactive interpretation; they always analyze the law after the crime is occurred to determine if it fits the crime or not. The line is blurry between appropriate interpretation and retroactive creation of new law.

Modern courts prefer not to create new law, but leave that to the legislature; however, they may still enforce and interpret existing common law crimes and interpretations

Rogers v. Tennessee – Supreme Court struck “year and a day” rule; did not change definition of criminal statute in any way, only changed interpretation; claim that defendant was still socialized to know his behavior was wrong, so there was no harm in changing the interpretation in this way.

Vagueness challenge:

Challenging a law for vagueness:
1) Law fails to give adequate notice/fair warning as to what is criminal
2) Vagueness of law allows arbitrary and discriminatory enforcement

Balance must be achieved between public protection and personal liberty; vagueness doctrine is very contextual, not to be overused, often applied more broadly to individuals displaying public behavior than business transactions, more civil liberties at stake with individuals and police actions

Beat a vagueness challenge by arguing greater need for social control
Make a vagueness challenge by arguing values/liberties trump enforcement

Fair warning also comes up in ex post facto disputes regarding “unforeseeable judicial enlargement of a criminal statute”; Keeler and broadening murder to cover a fetus; Bouie and broadening trespass; court often rules “ex post facto” is issue to dismiss cases without touching social issues (racism in Bouie, criminalizing of abortion in Keeler).

Merry Christmas.


:shock:

And in advance, a Happy New Year to you.




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