Lecture 2.doc

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University of Toronto St. George
Woodsworth College Courses
William Watson

***Assignment based on this lecture & readings - essay about justifications -- which work Justifications - retribution - deterrence (specific, general) - rehabilitation/reform - denunciation - incapacitation - restoration punishment:intentional infliction of suffering on a person for perceived wrong doing HistoryofLaw - state operated punishment through criminal law - state organized punishment grow out of punishments that existed before there were state structures Historicalpunishments - personal retribution -- physical harm -- violent retaliation - fines -- ransoming punishment -- people can buy off the threat of retaliation by buying a forfeit - punishment lay in the hands of nobles and then in the hands of the crown (traveling judges - the King’s court) - banishment -- not allowed to be around the community -- don’t have any claim to justice (i.e. if someone wanted to kill you they can without consequence) - punishmentstartstoevolveintoretribution (operate within the principle of retribution) -- punish someone to the degree to which they deserve & you have to have the appropriate mens rea - the crown’s job was to regulate justice through retribution - a good state is not one which reduces crime but which regulates and dispenses justice - dispensing justice was important bc it was doing God’s work in society - developmentoftheageofEnlightenment-- component of broader enlightenment - human reason could be used to govern human beings - human beings are rational beings --- incorrect to look at an act you don’t like and say its a result of human frailty or badness - the only reason we have crime is bc the punishments are insufficiently severe -- need to make the punishments so that it is irrational to commit crime -- more to lose than gain by committing crime - they want to change and fix people who are prone to committing crimes (recognize that people can be irrational at times) -- psychological players come in - the idea that we can use the prison space as punishment is a new idea emerging a the end of the 18th century and beg of 19th century - primary mode of punishment - train prisoners (remove from dangerous env. and put you in a controlled env) to reform them - general deterrence --- you should only punish people to the degree which they deserve to be punished -- prison allows u to do that in terms of cold hard numbers -- easy to measure degree of punishment - rehabilitation becomes more psychological -- clinical psych - connection btwn punishment and rehab. becomes weak ----saying they’re being punished by going to prison -- saying psychological programs will be better for them & they will like it better than prisons ---- rehabilitation becomes something you do WHILE you’re being punished rather than being punished itself - end of 20th cent. (rehab collapses) - people say its ineffective - people saying it’s unjust ---- keep ppl under punishment until they’re fixed - dangerous to the rights of offenders - development of incapacitation & restorative justice, retribution (becomes popular) - a loss of faith in experts in their claims that they can figure out what makes ppl commit crime and rehabilitate them -- thus these ^ approaches are more popular in contemporary times Moral Justifications - the question in moral philosophy is not does ____ work? thequestionassumesitworks-- questionis:ifyoucandeteranoffenderbypunishinghim/her,doesthatjustifypunishing him/her?ifyoucandeteroffenders,doesthatjustifypunishingthem?etc*********(imp for essay) - in every case, you will assume the justifications work ********* - what justifies intentionally inflicting suffering on an offender? - definitions do not assist arguments Purposes 1. Retribution - the ONLY purpose is to inflict suffering - Article: earliest principle of retribution - lex talionis --- an eye for an eye (even if accidentally) - can’t do the crime back to the person in some cases (i.e. fraud) - culpabilityprinciple(modern element) --- the degree to which someone is culpable is to do with the degree of harm they caused and the degree of responsibility of the offender (mental element comes in) --- culpability solves the problem of lex talionis bc it incorporates the mental element - moral equilibrium: balancing of morals -- the balance lies in the fact that we are making someone suffer and make them suffer to the extent that they deserve -- the wrong that was done creates a negative count and the suffering inflicted restores the balance --- there is a moral necessity to punish someone (not about making anyone feel better) - principle of ret: punish someone just bc they deserve it - if you ‘do’ the crime back, you are dragging the state in this type of moral ‘badness’ - how do you convert the punishment for crimes into suffering?/imprisonment? -- what scale/calculation do you use? How do you determine how many years in prison a crime is worth? -- we are converting it to another type of punishment -- no long ‘an eye for an eye’ - even if you can’t answer this question ^ , it is the right question (the justice system should be in the business of punishing people as much as they deserve) -- raising the possibility that its possible to punish someone more than deserve and less than they deserve 2. General deterrence - DOES NOT MEAN PREVENTING CRIME - will prevent crime through the rational fear of punishment - deterring the general public by making the offender suffer - a moral justification suggests that it would be entirely justified to punish someone for the purposes of general deterrence 3. Specific deterrence - the fact that they experience the punishment is what deters them - they don’t commit crimes in the future -- benefit of victims - must weigh the amount of suffering you inflict upon them to the relative damage they can cause -- not necessarily deterring the entire public from committing a certain crime 4. Reform/rehabilitation a. the suffering of the person was what rehabilitated them (keeping them in confinement and isolation) (historically) b. the punishment creates he space in which they can receive programming which can help them -- the programming itself is not punitive (now) c. how much imprisonment is justified to ‘rehabilitate’ someone? What if they did not do sth bad but their progress is slow? --- can justify indefinite incarceration d. might be able to justify incarcerating someone to treat them -- but not justifying intentional punishment, instead justifying incidental punishment e. endorses determinism (unlike the rest) -- works on the basis that on some level the individual was caused to commit the crime and if you fix the cause you
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