Punishment and Responsibility

1. Punishment and Responsibility Chapter 9

2. What acts should be punishable? • Acts: “In law, there must be an act.” • An act is something you do. • Oliver Wendell Holmes, Jr. said that an action must be willed. • Some omissions to act are considered legally as acts. If a mother leaves her children to starve, she is guilty of neglect. If she says, “I didn’t do anything” then she is guilty. She should have done something.

3. What acts should be punishable? • Intentions: If someone intentionally jabs you in the back with their elbow, then you will probably be more upset than if they did it unintentionally. • Criminal law considers whether your act was intentional. Civil law is different. People generally want some compensation for damages. It is not relevant whether the damaging actions were intentional or not. • Generally, murder is killing someone one intentionally. Manslaughter is killing someone unintentionally.

4. What acts should be punishable? • Intentions:There is another view of intentions. Even if the consequence was not desired, if it was inevitable or even reasonably foreseeable, it was still intended. Thus if you put someone in harm’s way, then you can be held liable. • The law does not attempt to punish all intentional acts but only intentional harm. • The word harm is vague. For example, a man may break an engagement to a women. She is heartbroken and very much harmed. The man may be a cad, but he has not broken a law.

5. What acts should be punishable? • “The reasonable man” • When is one negligent? When he failed to do what a reasonable man would do. • Although “the standard man” is a legal fiction, it is regularly invoked in negligence cases. The courts are often divided in negligence cases because we do not all share the same conception of a standard man. • Since negligence cases are messy, there is more of a tendency to replace negligence with strict liability. A person or company can be found guilty if something goes wrong, regardless of whether they use extraordinary caution or not. This policy may often deter people from going into certain occupations.

6. What acts should be punishable? • Gun Laws: • Laws punish people for inflicting harm on others. However, laws are also designed to prevent harms from occurring in the first place. Gun laws are an example. • Does private ownership of guns make a country safer or more dangerous?

7. What acts should be punishable? • Harm vs. Offense • In most places people aren’t permitted to have sex in public places are sunbathe in the nude on beaches. Do these type of activities harm people? • Are people in tropical countries where people go about nude most of the time harmed by seeing this? • One person may be offended by something that another person thinks is beautiful. • Almost everyone is offended by something, but should we prohibit almost everything? • Generally, the law prohibits what is found offensive by the majority of the people.

8. What acts should be punishable? • Good Samaritan Laws: • Some laws require us to help others, such as welfare laws. • In some countries, if a motorist sees another motorist in trouble on the highway she is required to help him. Should she have to help him? What if it is on a country road and there is not another person around for miles? What if 10 people have already stopped? Is it possible that an inept good Samaritan could hurt more than she helps?

9. Legal Responsibility • When is a person legally responsible? • The police yells at him from across the street: “Stop!” But he doesn’t have his hearing aid on and doesn’t hear them, and proceeds with his walk. The police shoot him in the leg to stop him. He sues the police department without success: “A reasonable person is expected to wear his hearing aid when going out in public.” Should he have won his case? Why or why not? • Is someone responsible for what she does while sleepwalking? • Generally, the law says “no” because it is hard for her to control what she does if she is sleepwalking. • What about a drunk driver? The law says yes because the person could choose not to drink.

10. Legal Responsibility • Coercion: • If someone forces you to do something, then are you responsible for it? • What would constitute force? • Most coercion is not simply someone stronger than you forcing you to press the trigger of a gun. Usually it involves a threat of the use of force against you. • Torture is one of the most extreme means by which one can use coercion against another.

11. Legal Responsibility • A man was threatened with death by the Irish Republican Army if he refused to shoot a British policeman (he was employed in a British office in Belfast.) He did so and was charged with murder. He pleaded that he did so only because of coercion, and the law normally finds a person innocent if he did something under threat of death. The British court was about to exonerate him, until one member said that if the man went free, his companions could again threaten him with death if he didn’t kill another British officer, and so on indefinitely, claiming coercion each time. So the man was found guilty after all.

12. Legal Responsibility • Pressure is not quite coercion, but it is close. Shy people are easily intimidated by people with a confident manner, a strong personality and a loud voice. • Peer pressure. • Pressure asserted by those that know how to push others buttons.

13. Legal Responsibility • Inner compulsion: • If someone feels an overpowering compulsion to do something are they responsible for their actions? • If an impulse is irresistible, then a person cannot be expected to resist it. How can anyone know if an impulse could have been resisted or not? • Psychologists tell us that a person can be a slave to her own overpowering impulses and be just as much controlled by them as if she were a literal slave. • There are many pathological conditions over which the patient has little or no control: • Schizophrenia, paranoia, obsessive-compulsive disorder, borderline personalities, sociopaths. • All of these are called character disorders. • To what degree are our actions determined?

14. Legal Responsibility • Insanity: • Insanity is a legal term, not a medical term. • It is usually defined as the inability to understand the wrongful or criminal nature of an act. • The stock example of “not knowing what he is doing” is a man who is strangling his wife and thinks he is squeezing a lemon; but no actual case of this has ever been known to occur. • Can a person be temporarily insane?

15. Paternalism • According to the principle of legal paternalism, people’s liberty may be restricted to prevent them from doing harmful things to themselves. • Should the law be able to tell me that I must wear a seatbelt when riding in a car? There may be non paternalistic reasons behind some of these laws. If you are injured in an accident it may cost society to pay for your medical care. Yet, the public service announcements generally inform us that these laws are in place for our own good. Proponents of the law tell us that they want to prevent us from harming ourselves. • Is it morally acceptable for x to pass a law that says y must do z, in order to protect y?

16. Paternalism • John Stuart Mill was against paternalism. He thought that sometimes we profit from our mistakes. Even if we don’t profit by them, we shouldn’t be our brothers keeper. He writes, • “there is a part of the life of every person who has come to years of discretion, with which the individuality of that person ought to reign uncontrolled either by any other person or by the public collectively. A man’s mode of laying out his existence is the best, not because it is best in itself, but because it is his own mode…It is the privilege and proper condition of a human being, arrived at the maturity of his faculties, to use and interpret experience in his own way.”

17. Paternalism • Prescription drugs: • Should people not be allowed to have drugs until they are FDA approved? • Results of recent clinical trials come out and the oncology community knows the results of research six months before it gets into medical literature, two years before it is accepted by the three compendia and five years before it is on the FDA label. Patients die waiting for drugs. • If someone has six months to live and it will take another 2 years for FDA approval, should she be able to take the drug?

18. Paternalism • Drug Laws • Should drugs such as heroin and cocaine be legal? • What about a drug such as marijuana? • What about drugs such as alcohol and tobacco? • Prohibition of alcohol was not successful. Is prohibition of drugs any more successful? • Many people that are in prison are there for drug related crimes. This includes 72 percent of inmates in federal prisons and 23 percent in state prisons. (From the San Francisco Chronicle, March 15, 1999.) The cost of imprisonment in the United states is enormous. $40 billion dollars annually, or approximately $20,000 - $70,000 per inmate. (From the catholic reporter, 34, no. 32 (June 19, 1998.) • Is drug use a victimless crime?

19. Paternalism • Violent criminals are sometimes being released early to provide cell space for nonviolent drug offenders whose mandatory sentences do not permit parole. • The United States has the largest number of people in prisons and jails on earth, surpassing both Russia and China, whose population alone is more than four times larger. The U.S. incarceration rate is five times larger than in England, six times greater than Canada, and seven times that of Germany. Some states spend more on prisons than on higher education.

20. Paternalism • Social Security: • 12.5% of our paycheck goes into social security. We do not have an option to invest that money in real estate, a small business, stocks, and so forth. The government has decided to invest it for us. • Social security is in trouble. Estimates have shown that it will not be able to meet it’s obligations in the coming decades. • Social security is considered a tax, not a contract. It can be taken away at any time. • Would people squander their money away and be left destitute in their old age? Is social security a good thing? Do most of us need that type of protection?

21. Theories of Punishment • The Utilitarian Theory of Punishment: • According to Utilitarians, punishment can only be justified if it increases good, or at least prevents evil. • Jeremy Bentham proposed sanctions. • Internal Sanctions – conscience. • External Sanctions – fines, prison sentences, community service, and so forth. • Rehabilitation • Group therapy, behavior modification, chemotherapy, aversion therapy, and neurosurgery. Rehabilitation requires time, patience and money. It is a long term project and requires a great deal of resources. Therefore, with some exceptions, it has not been a great success. • What about a person that does not want her personality tampered with?

22. Utilitarian Theory of Punishment • Deterrence • People may choose not to engage in certain types of behavior because they don’t want to face potential punishments. • In general, deterrence has not been very effective. Perhaps this is because most lawbreakers do not get caught, punishments are not harsh enough. See page 291. • Many murders are committed in the heat of passion. Are people thinking of deterrence at times like these? • Three more points regarding deterrence. (1) If a crime is not publicized, then the punishment will not be a deterrence for others. (2) Deterrence occurs because of perceived guilt, not necessarily because of actual guilt. (3) A pervasive of system of law probably needs to be in place before people will be deterred. Threat of punishment is not enough.

23. Utilitarian Theory of Punishment • Protection • What a utilitarian primarily wants to get out of punishing a criminal is protection. Yet, if protection is the only goal of punishment, then why not send the prisoners to a nice resort instead? Wouldn’t that increase their happiness?

24. The Retributive Theory of Punishment • Many people would say that convicted criminals should not be confined in luxurious resorts by the beach. This leads us to the retributive theory of punishment. • Sometimes the utilitarian theory is called the results theory, and the retributive theory is the deserts theory. • Retribution is not the same as revenge. Revenge is based on a personal desire for retaliation. Retribution is supposed to be an objective, impartial act that attempts to cancel out an evil act. A person that commits a crime owes a debt to society. The debt is due regardless of the victim’s wishes.

25. The Retributive Theory of Punishment • Retributive justice requires that the severity of the punishment be proportionate to the crime. • Thus the only punishment for murder would be death of the murderer. As long as the debt remains unpaid, there is something out of balance in the universe. • Kant believed that punishment does not deny the criminal’s worth and dignity. By punishing the criminal, we assume their moral worth and dignity by acknowledging that the criminal is a rational person who can be held morally responsible for her actions. • Bentham questioned whether there really is a moral duty of retribution. How can one act of violence cancel out another evil act?

26. The Retributive Theory of Punishment • Some philosophers that accept the principles of retribution, do not think the punishment has to fit the crime. For example, why murder a murderer? We do not burn the homes of arsonists or rape rapists. What of theft? If someone stole $100 and we made them pay $100, then that would not seem like much of a punishment.

27. Retribution and Therapy • What would a retributivist say about psychiatric therapy for prisoners? See page 297-298 (C.S. Lewis). • The rules of therapy are different from those of punishment. (1) In the therapy system there is no proportionality between offense and punishment because there is no offense. Therefore, a person may be confined until she is no longer ill. Please look at pages 298-299 to examine some of the problems that have resulted from the rules of therapy. (2) In the therapy system there are no procedural safeguards as there are in the punishment system. People are sometimes not allowed to make decisions for themselves because they are deemed “too sick.”

28. Some Problems of Punishment • The utilitarian theory looks forward to the consequences of punishment on criminals. The retributive theory looks backward to what the defendant has done. What if a Nazi war criminal is found when he is old and decrepit with not much time left to live. Should he still be punished? A utilitarian might say no. • What about mercy? One of the problems with mercy is that it is selective. If showing mercy to one is good, wouldn’t showing mercy to everyone be even better? • What about plea bargaining? Because the courts are so busy, cases are often plea bargained. A criminal can confess to a lesser crime in order to avoid a trial. A retributivist would say this is unjust.

29. Punishment without desert? • Prostitution and homosexuality are crimes without victims. It is behavior engaged in by consenting adults. Why should the law get involved? What about the use and sale of marijuana? Though there are few minimum sentence laws for rape and armed robbery, and many murders serve les that a third of their sentences, the use and sale of illegal drugs carries a minimum sentence of (on the average) 10 years. A kid who smokes a joint may be put behind bars for most of his adult life, while rapists and murderers are being released. See page 303.

30. Punishment without desert? • marijuana: • One of every six federal prison inmates is there for a marijuana offense. Property on which even one marijuana plant is growing can be forfeited; even if the person turns out to be innocent of the offense, the property is not returned unless the owner is able to pay huge legal bills, which can be difficult if his bank account is confiscated before he can hire an attorney. • A utilitarian would weigh the good and bad consequences of the laws, and would condemn all harsh laws. • A retributivist would ask, “Where is the crime? Whose rights are being violated?”

31. Attempts • In law, there must be an act. You can’t be punished for having an intention that is never carried out. But you can be punished for an attempt. When are attempted crimes punishable? See page 306.

32. The Restitution theory • The restitution theory believes that the victim (not society) has been wronged, and it is the victim that should be compensated. Restitution means restoring whatever values have been taken away. This works well in civil law, but what about criminal law? How do you restore a child to the condition he was in before he was molested? Since the victim will live with irreversible scars, money is sometimes the only option. However many aggressors and predators do not have money. The restitutionist would say that the predator can earn it, or he can be made to earn it. • Once such a system was in place, people could purchase crime insurance.

33. The Death Penalty • Not all utilitarians are against the death penalty. Unlike Bentham, John Stuart Mill called the death penalty appropriate arguing that it had a deterrent effect. • Classic retributivists would be in favor of the death penalty, but not all retributivists (such as Bedau) are in favor of it. • One argument is what if you get it wrong? Through DNA, we have found that many people on death row were innocent of the crimes they were charged with. Between 1973 and 2003, 107 people were released from death row because they were later found to be innocent. Some spent ten to twenty years in prisons. The nun that wrote Dead Man Walking, Jean Prejean, wrote that if she were to be murdered that she would not want her murderer executed. “Especially by government – which can’t be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill.”

34. The Death Penalty • Is the death penalty a deterrence? According to Hugo Bedau, it is not. He writes, • “For half a century, social scientists have studies the questions whether the death penalty is a deterrent and whether it is a better deterrent that the alternative of imprisonment. Their verdict, while not unanimous, is nearly so. Whatever may be true about the deterrence of lesser crimes by other penalties, the deterrence achieved by the death penalty for murder is not measurably any greater than the deterrence achieved by long-term imprisonment…”