Responsibility and Responsibility and PunishmentPunishment

PurposePurpose KnowledgeKnowledge RecklessnessRecklessness NegligenceNegligence Strict LiabilityStrict Liability

Criminal punishment Criminal punishment problematicproblematic

The harm it imposes on those who are The harm it imposes on those who are punished – physical/psychological, punished – physical/psychological, jobs, family.jobs, family.

Costs that the punishment of criminals Costs that the punishment of criminals imposes on their family and friends.imposes on their family and friends.

Costs that punishment institution Costs that punishment institution impose on other innocent parties – impose on other innocent parties – those wrongly convicted, financial those wrongly convicted, financial costs of maintaining the criminal costs of maintaining the criminal justice systemjustice system

PurposePurpose

•The agent had the conscious The agent had the conscious object of producing the object of producing the effect in question -- its effect in question -- its realization formed some realization formed some part of a plan successfully part of a plan successfully executed by the agentexecuted by the agent..

KnowledgeKnowledge

•The agent was aware that it The agent was aware that it was practically certain was practically certain that the result in question that the result in question would be a result of his would be a result of his action.action.

RecklessnessRecklessness

•The agent consciously The agent consciously disregarded a substantial disregarded a substantial and unjustifiable risk that and unjustifiable risk that the effect in question the effect in question would result from his would result from his action.action.

NegligenceNegligence

The agent would have been aware that there was a substantial and unjustifiable risk that the effect in question would result from his action, if he acted as a reasonable person would.

Two difficult questions:• When are risks “unjustifiable”?• What would a “reasonable person” do in the relevant circumstances?

Strict LiabilityStrict Liability

•The agent caused the effect The agent caused the effect in question, with or in question, with or without knowledge, or even without knowledge, or even possible knowledge.possible knowledge.

PunishmentPunishment ““The imposition of hardship or The imposition of hardship or suffering on a supposed offender for a suffering on a supposed offender for a supposed crime, by a person or body supposed crime, by a person or body who claims the authority to do so.” who claims the authority to do so.” McKinnon, pg.122McKinnon, pg.122

Question for the chapter: Question for the chapter: What can What can justify the infliction of this sort of justify the infliction of this sort of suffering?suffering?• Instrumental – suffering is bad but the Instrumental – suffering is bad but the good it will produce.good it will produce.

• Denying that suffering is bad in itself – Denying that suffering is bad in itself – based on character/meaning/was it deservedbased on character/meaning/was it deserved

Consequentialist ConsiderationsConsequentialist Considerations• The actual consequences of the statute or rule, including its effects on behavior.

• The Moral theory according to which the rightness or wrongness of a given conduct, practice, or rule depends only on its consequences (or the consequences that it is likely to produce).

vs. Retributivist Considerations

• Wrongdoers deserve to suffer in proportion to the gravity of the wrong they have committed. (Negative – who deserve it- necessary condition; Positive – get what they deserve – sufficient punishment)

Consequentialist Consequentialist Justifications of Justifications of PunishmentPunishment

• Incapacitating criminals by depriving Incapacitating criminals by depriving them, at least temporarily, of the them, at least temporarily, of the capacity to commit crimes.capacity to commit crimes.

• Deterring criminals (and potential Deterring criminals (and potential criminals) by providing them with criminals) by providing them with prudential reasons not to commit prudential reasons not to commit crimes.crimes.

• Reforming criminals by persuading them Reforming criminals by persuading them that they should obey the law and that they should obey the law and refrain from committing crimes. refrain from committing crimes. McKinnon, pg. 124McKinnon, pg. 124

Consequentialist case Consequentialist case againstagainst strict strict liabilityliability The law cannot deter The law cannot deter unintentional infractions by unintentional infractions by threat of punishment. threat of punishment.

The recklessness standard would The recklessness standard would deter as much, with fewer deter as much, with fewer prosecutions, less punishment.prosecutions, less punishment.

The negligence standard would The negligence standard would deter all unreasonable risk-deter all unreasonable risk-taking. What more could we want?taking. What more could we want?

Consequentialist case Consequentialist case forfor strict liability strict liability

It is difficult to prove the It is difficult to prove the mental state of the perpetrator.mental state of the perpetrator.

Strict liability induces an even Strict liability induces an even higher level of care than does higher level of care than does negligence liability.negligence liability.

Strict liability discourages the Strict liability discourages the kinds of activity that can kinds of activity that can produce the effect.produce the effect.

Crime and CondemnationCrime and Condemnation

Is there an indissoluble link Is there an indissoluble link between criminal punishment between criminal punishment and societal condemnation?and societal condemnation?

Is it ever OK to punish (even Is it ever OK to punish (even severely) someone who did severely) someone who did nothing morally wrong?nothing morally wrong?

Purposes and Purposes and AlternativesAlternatives

What are the purposes of What are the purposes of criminal punishment? What ends criminal punishment? What ends does it serve?does it serve?

Why punish at all? Why punish at all? What are some possible What are some possible alternatives?alternatives?

When and why is punishment When and why is punishment preferable?preferable?

ConsequentialismConsequentialism

Consequentialism is the thesis Consequentialism is the thesis that only consequential that only consequential considerations should be considerations should be relevant.relevant.

The best known version of The best known version of consequentialism is consequentialism is utilitarianism (the best law is utilitarianism (the best law is the one that maximizes total the one that maximizes total happiness).happiness).

Punishing the innocentPunishing the innocent

There are obvious There are obvious consequentialist reasons for consequentialist reasons for notnot (in general) punishing the (in general) punishing the innocent.innocent.

However, many critics of However, many critics of consequentialism have argued consequentialism have argued that in some cases, it would that in some cases, it would justify doing so: the anti-justify doing so: the anti-lynching thought experiment.lynching thought experiment.

Publicity and Publicity and TransparencyTransparency

The standard consequentialist The standard consequentialist response to this objection is to response to this objection is to fall back to “rule fall back to “rule consequentialism” (rule consequentialism” (rule utilitarianism).utilitarianism).

The rule of utility applies only The rule of utility applies only to public, transparent practices to public, transparent practices & institutions, not individual & institutions, not individual actions or decisions.actions or decisions.

Two Remaining ProblemsTwo Remaining Problems Consistency: If consequences are Consistency: If consequences are all that matter, how can the all that matter, how can the utilitarian justify sticking to a utilitarian justify sticking to a rule in cases where utility is not rule in cases where utility is not served?served?

Failure of generality: In some Failure of generality: In some cases (strict liability, punishing cases (strict liability, punishing the insane), utilitarianism may the insane), utilitarianism may justify public practices that justify public practices that punish the innocent.punish the innocent.

Malum in se vs. Malum Malum in se vs. Malum prohibitumprohibitum

Some acts of lawbreaking Some acts of lawbreaking involve doing something involve doing something inherently evil -- malum in inherently evil -- malum in se.se.

Others are evil only because Others are evil only because they involve breaking the they involve breaking the law.law.

Examples of malum prohibitum?Examples of malum prohibitum?

Malum Prohibitum & Malum Prohibitum & Strict LiabilityStrict Liability

If we object to strict liability If we object to strict liability on the grounds of fairness, would on the grounds of fairness, would the same objection apply with the same objection apply with equal force to rejecting the equal force to rejecting the ignorance-of-the-law excuse in ignorance-of-the-law excuse in the case of malum prohibitum the case of malum prohibitum offenses?offenses?

Is the mental element equally Is the mental element equally innocent in both cases?innocent in both cases?

Broad and narrow Broad and narrow positivismpositivism

Broad positivism (= moral/legal Broad positivism (= moral/legal conventionalism). There is only the conventionalism). There is only the positive law: there are no objective, positive law: there are no objective, universal facts about morality, about universal facts about morality, about what the law ought to be like. what the law ought to be like.

Narrow (legal) positivism: in Narrow (legal) positivism: in addition to the positive law, addition to the positive law, objective moral facts may exist. objective moral facts may exist. Legal validity is independent of Legal validity is independent of moral justifiability.moral justifiability.

Utilitarian positivism: there are no Utilitarian positivism: there are no natural human rights, nothing like a natural human rights, nothing like a natural law. The only moral natural law. The only moral standard is one of the desirability standard is one of the desirability of the consequences of the law. of the consequences of the law. [Bentham][Bentham]

Non-utilitarian narrow positivism. Non-utilitarian narrow positivism. There is something like natural law There is something like natural law (universal human rights, universal (universal human rights, universal moral principles).moral principles).

Two kinds of (narrow) Two kinds of (narrow) legal positivismlegal positivism

An Introduction to the An Introduction to the Principles of Morals Principles of Morals and Legislationand Legislation

Jeremy BenthamJeremy Bentham

Utility ConditionsUtility Conditions To attach clear and precise ideas to To attach clear and precise ideas to the word utility, exactly the same the word utility, exactly the same with all who employ it.with all who employ it.

To establish the unity and the To establish the unity and the sovereignty of this principle, by sovereignty of this principle, by rigorously excluding every other. It rigorously excluding every other. It is nothing to subscribe to it in is nothing to subscribe to it in general; it must be admitted without general; it must be admitted without exception.exception.

To find the processes of a moral To find the processes of a moral arithmetic by which uniform results arithmetic by which uniform results may be arrived at.may be arrived at.

UtilitarianismUtilitarianism

Utility is an abstract termUtility is an abstract term Contains three elements:Contains three elements:

• Hedonistic theory of well-being: Hedonistic theory of well-being: pleasure is good and pain is badpleasure is good and pain is bad

• Sum-totaling of well-being: pleasure Sum-totaling of well-being: pleasure and pain can be aggregated.and pain can be aggregated.

• Maximization of well-being: only that Maximization of well-being: only that action that produces the greatest action that produces the greatest balance of pleasure over pain is the balance of pleasure over pain is the morally correct actionmorally correct action

The principle of The principle of utilityutility When Bentham talks of the principle When Bentham talks of the principle of utility, he means the principle of utility, he means the principle which prefers the greatest balance of which prefers the greatest balance of pleasure over pain.pleasure over pain.

Bentham contends that as a matter of Bentham contends that as a matter of fact, people only (at bottom) pursue fact, people only (at bottom) pursue pleasure. This is a descriptive pleasure. This is a descriptive theory of hedonism.theory of hedonism.

Bentham also contends that what is Bentham also contends that what is good for people is just pleasure and good for people is just pleasure and the absence of pain. This is a the absence of pain. This is a normative theory of hedonism.normative theory of hedonism.

Principles adverse to Principles adverse to utilityutility

Bentham claims that a principle may Bentham claims that a principle may be different from the principle of be different from the principle of utility in two ways: utility in two ways: • It could be opposed to it: like It could be opposed to it: like asceticism, the view that pleasure is asceticism, the view that pleasure is bad and pain is goodbad and pain is good

• It could be no principle at all: like It could be no principle at all: like the “principles” of sympathy and the “principles” of sympathy and antipathy, where what is good or bad is antipathy, where what is good or bad is just what strikes each person as good just what strikes each person as good or bad.or bad.

AsceticismAsceticism

Bentham contends that asceticism is Bentham contends that asceticism is the result of a mistake: in the result of a mistake: in observing that many pleasures, when observing that many pleasures, when overindulged, cause more pain than overindulged, cause more pain than pleasure, ascetics conclude that all pleasure, ascetics conclude that all pleasure is badpleasure is bad

Bentham contends that if only a tenth Bentham contends that if only a tenth of being on earth really subscribed of being on earth really subscribed to asceticism even for a day, they to asceticism even for a day, they would turn Earth into a hell.would turn Earth into a hell.

Sympathy/AntipathySympathy/Antipathy Bentham accuses politicians and popular Bentham accuses politicians and popular figures of subscribing to this figures of subscribing to this principle (my, how times change) rather principle (my, how times change) rather than any consistent set of values.than any consistent set of values.

Consists in approving or blaming by Consists in approving or blaming by sentiment, without giving any other sentiment, without giving any other reason for the decision except the reason for the decision except the decision itself.decision itself.

Sympathy/Antipathy are simply Sympathy/Antipathy are simply arbitrary, and are no good basis for arbitrary, and are no good basis for morals or legislation.morals or legislation.

Of the sources of Of the sources of pleasure and pain:pleasure and pain:

When good things happen for a When good things happen for a reason, they are rewards, when reason, they are rewards, when bad things happen for a reason, bad things happen for a reason, they are punishments. When they are punishments. When things happen for no determinate things happen for no determinate reason, it is called a calamity reason, it is called a calamity if bad, or fortune if good. What if bad, or fortune if good. What follows are four sources of follows are four sources of reward or punishment.reward or punishment.

The sources: The sources: Pain/Pleasure attached Pain/Pleasure attached to law is called it’s to law is called it’s sanction. sanction. Cahn, pg. Cahn, pg. 627627 PhysicalPhysical

• When a punishment or reward is caused by When a punishment or reward is caused by one’s own actionsone’s own actions

PoliticalPolitical• When punishment or reward is caused by the When punishment or reward is caused by the lawlaw

MoralMoral• When punishment or reward is socially When punishment or reward is socially inflicted (by other people)inflicted (by other people)

ReligiousReligious• When punishment or reward is caused by GodWhen punishment or reward is caused by God

Utility as a source of Utility as a source of morals and legislationmorals and legislation

• In outlining the previous, Bentham has a In outlining the previous, Bentham has a particular goal: to demonstrate that particular goal: to demonstrate that utility is the best principle to base utility is the best principle to base morality and the law off of.morality and the law off of.

• It is better than asceticism or It is better than asceticism or sympathy/antipathy, and can influence sympathy/antipathy, and can influence all human behavior through the sources all human behavior through the sources of reward/punishment.of reward/punishment.

• What remains to be explained is how to What remains to be explained is how to apply the principle of utility. Bentham apply the principle of utility. Bentham calls this the Hedonic Calculus.calls this the Hedonic Calculus.

Hedonic calculus:Hedonic calculus:

Total Pleasure/Pain can be calculated Total Pleasure/Pain can be calculated using the following parameters:using the following parameters:

①① Intensity: How intense is the Intensity: How intense is the pleasure/pain?pleasure/pain?

②② Duration: How long does it last?Duration: How long does it last?③③ Certainty: How probable is it to occur?Certainty: How probable is it to occur?④④ Proximity: Its nearness in timeProximity: Its nearness in time⑤⑤ Productiveness: How likely is it to Productiveness: How likely is it to generate more of the same?generate more of the same?

⑥⑥ Purity: How much pure pleasure, pure Purity: How much pure pleasure, pure pain, or a mix of the two is it?pain, or a mix of the two is it?

⑦⑦ Extent: How many people are affected?Extent: How many people are affected?

In Summary, Bentham In Summary, Bentham thought that,thought that,

People are motivated by pleasure and pain-People are motivated by pleasure and pain-avoidanceavoidance

The amount of pleasure in the world should The amount of pleasure in the world should be increasedbe increased

Laws should increase the amount of pleasure Laws should increase the amount of pleasure in the community and not increase the amount in the community and not increase the amount of painof pain

Punishment should only be used when it was Punishment should only be used when it was absolutely necessary and should be absolutely necessary and should be proportional to the offense; he did not proportional to the offense; he did not believe in groundless, needless, believe in groundless, needless, ineffectual, or expensive punishment ineffectual, or expensive punishment

ConclusionConclusion

Bentham and Mill’s Utilitarianism Bentham and Mill’s Utilitarianism stated that people should act in a stated that people should act in a way that was the most beneficial way that was the most beneficial for their community, country, etc.for their community, country, etc.

Laws should also benefit most of Laws should also benefit most of societysociety

““It is the greatest happiness of It is the greatest happiness of the greatest number that is the the greatest number that is the measure of right and wrong” measure of right and wrong”

Thursday, 11/19Thursday, 11/19

Bentham’s view on Bentham’s view on utility/legislationutility/legislation

Finish Chapter 6 – Mixed Finish Chapter 6 – Mixed approaches:approaches:• The Hartian modelThe Hartian model• The communicative modelThe communicative model• The duty viewThe duty view• Next week begin chapters 7 and 8Next week begin chapters 7 and 8