Past forms of corporal punishment included branding, blinding, mutilation, amputation, and the use of the pillory and the stocks.
Pillsbury, Loyola Law School October — How should emotion inform punishment decisions in modern criminal justice?
How does emotion, in fact, affect decisions about and perceptions of just punishment in the contemporary criminal process? How might current courtroom practices in America that give legal protection to emotional expressions by both defendants and victims suggest a different view of justice than that provided by classical theories of retribution and deterrence?
These are the questions I pursue here. I begin with the main classical theories of punishment: After laying out their essential precepts, I consider how they treat sentencer emotion.
Both theories envision the determination of punishment as an entirely reasoned process, without regard to sentencer feelings. Then I turn to the actual practice of punishment and explore the real life significance of emotions on sentencer decisions. Unsurprisingly, sentencers are often affected by their emotional responses to offenses and offenders.
Because emotional responses may or may not prove congruent with punishment principles, we must make an effort to moralize their influence. In the last section I take up legally sanctioned expressions of emotion by both defendants and victims at sentencing.
What is the purpose of these emotive practices, which at least on the victim side are relatively new to the American legal scene?
Answering this question reveals how current practices relating to emotional expressions at time of sentencing have outrun traditional punishment theory. I will argue for a concept of justice that goes beyond judgments on individual offenses and offenders to encompass relations between persons affected by crime.
Emotion and Principles of Punishment: Retribution and Deterrence Punishment, as I use the term here, refers to negative sanctions imposed for a criminal conviction.
In the United States these sanctions range from community service requirements, fines or probation, to lengthy prison terms or capital punishment.
Concern with emotions relating to punishment normally centers on the feeling-responses of the sentencer to the wrong of the offense and the character of the offender.
Later I will look at the significance of emotional expressions by victims and defendants. The Western concept of just punishment has for centuries centered on the principles of retribution and deterrence. These were classically set out in the eighteenth century by philosophers Immanuel Kant retribution and Jeremy Bentham deterrence.
As Kant originally posited, and modern theorists like Michael Moore hold, punishment for wrongdoing is just if it is deserved according to the nature of the wrong done. Under the principle of retribution there should be a fundamental moral connection between crime and punishment.
Under a strict retributive approach, the consequences of punishment for both the individual punished and society are irrelevant to justice. Thus whether the punishment might dissuade the offender, or others, from committing future offenses, does not matter in determining what punishment is deserved.
Murder is punished more than burglary, rape more than theft because in each of these pairings the first-listed offense involves a greater harm the taking of life, disregard for sexual autonomy than the second disregard for autonomy in residence and property rights.
In an assault case, an attack made with the purpose to inflict great bodily injury will be judged a more culpable act than if the attacker did not intend to inflict severe injury, but was aware of a significant and unjustified risk that significant physical harm might occur.
In homicide, assessments of culpability can include emotion states and motives, as in the distinction between a premeditated murder, in which the defendant made a carefully calculated decision to kill, and a heat of passion killing normally classified as voluntary manslaughter which involves a more spontaneous, highly emotional choice to kill, under circumstances where a reasonable person might also be strongly tempted to serious violence.
Retribution explains all of these distinctions on the ground that the more the actor consciously chose to do harm, the more culpable his or her conduct, and therefore the more deserving the actor is of punishment.
It is important to distinguish here between retribution as the word is used in law and moral philosophy from the way it is often used in ordinary conversation. They suggest an angry punisher.
The principle of retribution, though, says nothing about a personal desire for payback. Nor does it require or imply an angry sentencer. The determination of deserved punishment should be made according to universal moral principles on behalf of the community; the determination of deserved punishment is dispassionate.
Nor does retribution, in principle, dictate harsh results. In some cases, a punishment that is deserved may be more lenient than that called for by other theories such as deterrence. The principle of deterrence is often seen as the main rival to retribution. Where retribution is deontological, because based on concepts of fundamental right and wrong, deterrence is teleological, finding its justification in the consequences of punishment — in the observable good that punishment achieves.The death penalty: debating the moral, legal, and political issues / "Does capital punishment act as a deterrent to the commission of certain crimes?
Is state-sponsored execution of criminals abhorrent to the standards of civilized society? The Moral, Legal, and Economical Aspects of Capital Punishment Words 7 Pages Capital punishment has long been a topic for heated debate throughout the United States of America and the civilized world.
I'd like to think that the insightful Dahlia Lithwick is prescient in regarding the Davis case as the beginning of the end for capital punishment in America. But after years of studying and writing about the death penalty, I suspect that the history of capital punishment -- a history of rationalizing or forgetting the occasional high profile, wrongful execution -- .
The legal aspects of rape include five topics concerned primarily with forcible rape — the purpose of rape law, the punishment for forcible rape, the elements of the offense, evidentiary issues, and practical concerns about enforcement.
Aug 07, · Well, if you think capital punishment is immoral, then Dr. Petit is immoral. And what about opponents’ argument that an innocent person may be executed? This argument may be sincerely held, but it’s not honest. Why? Because opponents of capital punishment oppose the death penalty even when there is absolute proof of the .
A more thorough discussion of the ethics of capital punishment can be found in J. D. Charles, “Outrageous Atrocity or Moral Imperative: The Ethics of Capital .