Theories of Punishment in Criminal Law

Session 1 Theories

Utilitarianism

A theory of punishment that assumes people are rational actors, advocating for punishment only if the pain to society is greater than the punishment inflicted on the defendant.

Critiques of Utilitarianism

Unrealistic, lack of punishment awareness, psychological distortions, disproportionate punishment, & bad incentives

Specific Deterrence

A form of deterrence aimed at preventing a specific individual from committing future crimes.

General Deterrence

A form of deterrence aimed at preventing society at large from committing crimes by establishing a general threat of punishment.

Rehabilitation

A theory of punishment focused on helping the offender return safely to society.

Rehabilitation Critiques

Too paternalistic, too soft on crime/costs too much, & lack of predicted effects

Incapacitation

A theory of punishment that seeks to hold individuals to prevent them from committing future crimes.

Incapacitation Critiques

Costs, overlooks ‘aging out’ of crime, bias in predicting who is likely to commit future crimes

Retributivism

A theory of punishment that assumes individuals have free will, emphasizing punishment as a moral debt to society. It bases punishment on moral blameworthiness, is about wrongdoer and what they did, and views punishment as an end in itself.

Positive Retribution

Just society must punish the blameworthy, and the Individual should not be used to benefit society

Negative Retribution

Sets an upper limit on how much retribution is appropriate.

Critiques for Retribution

Implicit bias, targets people who society has failed to protect, society lacks agreement on the absolute seriousness of an offense

Restorative Justice

An alternative to the adversarial process that focuses on repairing harm by bringing together those affected to discuss on how to repair the damage

Critiques of Restorative Justice

Expensive, effective still unproven, hard to implement on large scale, disproportionally used for older and white defendants, net-widening, can’t work for all defendants/victims

Transformative Justice

A community-based approach that addresses violence by changing the context to prevent future harm.

Mixed Theory of Punishment

Combines utilitarian aims with a retributive limit.

Empirical Evidence

Data collected through observation, used to assess the effectiveness of deterrence.

Judgments of Right/Wrong

Varying perceptions of morality across jurisdictions affecting punishment.

Regina v. Dudley and Stephens

A landmark English criminal case from 1884 that established a precedent that necessity is not a defense to a charge of murder. The case involved four shipwrecked sailors, two of whom killed and ate a third-party cabin boy to survive, arguing it was necessary. The court rejected the defense, finding them guilty of murder.