Sentencing

Why Do We Punish?

There are about 5 different philosophies about why we punish

Retribution

Retribution - A concept that implies the payment of a debt to society and thus the expiation of oneā€™s offense

Traced back to the ā€œCode of Hammurabiā€

Relies on the principle of lex talionis (eye for an eye, a tooth for a tooth)

Focuses on past behavior

severity of crime ā†’ severity of the punishment

Reflects a desire for revenge

  • Because society as a whole is punishing the criminal, individuals are not allowed to take the law into their own hands and punish the criminal

In the enlightenment, retribution lost its influence for why we punish

Just Deserts - Punishment for criminal wrongdoing should be proportionate to the severity of the offense

Proportionality - A philosophical principle positing that criminal punishment should be proportional to the harm caused by the criminal offense

Expiation - Atoning for sin through deserved suffering

  • Popularized by St Augustine and St Thomas Aquinas

Retribution has some limitations

  • Focuses on the crimes of violence (what about property damage?)

  • Places emphasis on individual responsibility

  • Vengeance does not work with our constitutional limits on government power

  • Emphasizes the past behavior of the defendant and exhibits no concern for future criminal activity

Deterrence

ā€œLet this be a warning to othersā€

Deterrence Theory - The view that certain, severe, and swift punishment will discourage others from similar illegal acts

Punishment based on retribution was pointless and dumb

  • Sanctions should be used to further societyā€™s goal of preventing crime

Hedonistic Calculus -