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1. “Violations”: Additionally, many jurisdictions have a third category of offense called “violations,” which are so minor that no incarceration is permitted, and which are usually not considered “crimes.” Id. Cf. Model Penal Code § 1.04(5) (defining a violation in most cases as an offense for which “no other sentence than a fine … or other civil penalty” is authorized, and saying that a violation “does not constitute a crime[.]”)

D. Theories of punishment: What is the purpose of punishing a person who commits what society has decided to classify as a criminal act? There are two main philosophies on this question, which are often labeled “utilitarianism” and “retributivism” The two differ in the main objectives that a system of punishment should try to achieve.

1. Utilitarianism: Utilitarianism derives from the theories of 19th-century English philosopher Jeremy Bentham. The basic concept of utilitarianism is that society should try to maximize the net happiness of people–“the greatest good for the greatest number.” Cf. Dressler Hnbk, § 2.03[A][1]. Utilitarians believe that “the pain inflicted by punishment is justifiable if, but only if, it is expected to result in a reduction in the pain of crime that would otherwise occur.” Id. Utilitarians cite the following as the narrow objectives that a system of criminal law and punishment should try to achieve:

  • Most importantly, the utilitarians stress “general deterrence.” That is, if D commits a crime, we should punish D mainly in order to “convince the general community to forgo criminal conduct in the future.” Id.
  • Next, the utilitarians seek “specific deterrence” (sometimes called “individual deterrence”). That is, if D commits a crime, we should punish D to deter her from committing additional crimes in the future. This will happen by two “sub-methods”: (a) if we incarcerate D, then D will be “incapacitated” from committing additional crimes while in prison or jail; and (b) after conviction, and especially incarceration, D will be “intimidated” into not committing any more crimes, out of fear of further punishment.
  • Lastly, the utilitarians stress “rehabilitation.” That is, the criminal justice system should try to prevent D from committing further crimes not by causing him to fear the pain of further punishment in the future but by educating him or otherwise “reforming” him. The rehabilitative function is stressed especially in the juvenile justice system.

Cf. Dressler Hnbk, § 2.03[A][2].

2. Retributivism: Retributivists, on the other hand, believe that the principal – maybe even the sole—purpose of the criminal law should be to punish the morally culpable. Cf. Dressler Csbk, pp. 38-39.

a. Deterrence not principal focus: Retributivists, because of their focus on moral blameworthiness, do not regard either general or specific deterrence as being very important objectives to be served by the criminal law. “That future crime might also be prevented by punishment is a happy surplus for a retributivist, but no part of the justification for punishing.” Moore, quoted in Dressler Csbk, p. 38.

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