Why Do We Punish and Whom Should We Punish?

Thereafter, many case books use The Queen v. Dudley and Stephens, 14 Q.B.D. 273 (1884) as a vehicle to stimulate discussion about how theories of punishment may apply to a specific case. I will begin my lecture by discussing Dudley and the questions that I pose following that case. In reading Dudley, ask yourself whether you think that the defendants’ conduct was criminal; if so, should the government execute them for their crime. Further, in considering whether their conduct was criminal, ask yourself whether the law ought to recognize a defense. Consider two possible defenses: was the conduct justified (i.e., by killing Parker, did Dudley do a greater social good, saving the lives of three people, than had he not done the killing)? Even if not justified, should society recognize a defense that would excuse the defendants? (E.g., sometimes the law recognizes that reasonable people may not be able to conform their conduct to legal norms; if reasonable people could not comply with the law, we excuse them even though on balance, their behavior did more harm than good. Self defense provides an example of both justification and excuse. If an innocent defendant is faced with killing force, she may choose to use killing force to repel her aggressor.

On balance, saving the life of an innocent is deemed the greater social good than forcing her to submit to killing force by the aggressor. By comparison, if the aggressor, in fact, does not pose a threat of deadly force, and the defendant kills out of a reasonable, but mistaken, belief that her life is at risk, many states allow the defense. Since the defendant killed an innocent, her conduct was not justified (she did not create a greater social good), but instead, society excuses her conduct on the view that she acted as reasonable people would under similar circumstances.)