Jermey Bentham Utilitarian principle
- Try to reduce pain to augment the total happiness of the community
- Punishment itself is an evil because it produces pain
Bentham application to criminal punishment
- Punishment is an evil - “mischief” - Should not use punishment only if it excludes some greater evils
- All punishment is evil
- Deterrence good, but for four years is bad
- Pg. 187. When do we not inflict punishment. When it is groundless. Unprofitable.
Blackstone; purpose
Purpose of punishment is “prevention of future crime” and rehabilitation of wrongdoing
Blackstone right basis for punishment
- Key to punishment is deterrence:
- Change the offender
- Deter others
- Incapacitate the offender - specific deterrence
○ Depriving the perpetrator of the power to do future mischief
Blackstone wrong basis for punishment
- Atonement/expiation are for God to handle
- [The method of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means exceed it. ]
Blackstone on retribution
- Thinks crime needs to match punishment doesn’t leave as heavily there.
- Not a big retributivist; Civil government using retribution to measure what a civil punishment is.
- He talks about rehabilitation. General and specific deterrence
Richard Nygaard; Right and wrong goals for the penal system
- Primary product: safety
- No protective behavior no safety. Certain punishment does not protect safety
- Looks to the future
- Primary goal: correction
- What should we get out of a good system?
○ Rehabilitation[retribution]; looks to past
Nygaard; Whats wrong with retribution
- might not solve anything
- doesn’t do anything for the punished, not getting to the cause of the person
- how to correct behaving instead of behavior itself.
Why is the “backward” nature of retribution so negative to Nygaard?
- No utilitarian value
- Retribution looks to past while safety looks to future
- Facilitates regret and “the malignant growth of hatred”
- Based on the wrong view of world - presumes free will
- Lot of recidivism after, back to the same cycle after jail
- Leads to anger and bitterness
Nygaard proposed solution
- Discover causes of crime
- Triage system; thinking, treatment, and sentencing is separated into at least three discrete groups
- The benign for whom nothing needs to be done
- The truly dangerous for whom nothing can be done
- Those for whom the expenditure of some effort may effect change
a. The majority of our societal resources should be placed into these individuals.
- [Cure and Deter]
Jeffery Tuomala - Valid and biblical goals for criminal punishment; Retribution
- Would look at Retributive principles; based on the crime we assign the time
- Appropriate level of punishment
a. Expiates the guilt of offenders
Tuomala - Valid and biblical goals for criminal punishment; Atonement as a model for retributive justice
- Atonement: There must be punishment to atone for sin. God cannot let sin go unpunished
- Human rulers (as God’s servants) must apply retributive principles as well.
- Punishment is good. It is “rooted in the very nature of a righteous, just and holy God.”
Tuomala - Valid and biblical goals for criminal punishment; - Restitution; proper biblical goals
- Seen at lower levels and with fines.
- Wants you to pay back what you owe
- Restores victims
Tuomala basis for rehabilitation
- Just as Christ’s death establishes the objective basis for reconciliation, retribution and restitution establish the basis for rehabilitation.
Tuomala response to Nygaard; What would he say about retribution
- Payment for the victim
- Ties retribution to justice
- He would say punishment is good. God is loving
- Nygaard wants to look forward (what is key to make criminal justice system better moving forward), whereas Tuomala says that you cannot look forward unless you have addressed what has been done in the past.
C.S. Lewis; The Humanitarian
- Retribution is mere revenge - barbarous and immoral
- Only legitimate motives for punishment: cure or deter
- Tending to psychologically sick.
- Deterrence and rehabilitation.
- Would agree more with Tuomala take
Lewis; Why the Humanitarian Theory isn’t very humane
- Deprives individuals of their human rights
- Key: HT removes the element of desert and desert is the key to justice
- No “just deterrent” or “just cure.”
- HT treats people like a case or patient and not a morally accountable human being made in God’s image.
Assessment of legal philosophies employed by Bentham
- Realism - pragmatic; lawyer as a social engineer;
- Law and economics; calculate most efficient punishment
Assessment of legal philosophies employed by Nygaard
Realism - study what is really going on; what works?; embrace social science (psychology, behavior modification)
Assessment of legal philosophies employed by Tuomala
Divine Law; what is the role of civil government; atonement
Assessment of legal philosophies employed by Lewis
Draws principles of justice from law of nature; rejects humanitarian theory which (in positivist way) removes morality from criminal law and punishment.
Restoration as an alternative [Colson and Nolan’s “Better Way”]
- Focuses on the injured victim as well as the broken law, and seeks to heal those injuries and restore the right order for the community, rather than solely offering restitution.
- ii. In the general criminal justice system, restorative justice advocates note that the victim is lost throughout the process of sentencing
- Ex: In a criminal law case, the case name is State versus an offender. The offense has been committed against the peace of the State rather than redressing the harm done against the victim.
Reimund on Law and Restorative Justice
- Restorative justice looks at crime as a violation of people and of interpersonal relationships
- ## RJ is trying to restore relationships formed between the victim, offender, and the community
