Learning Module

Punishment

MEET YOUR LECTURER

Barry Lam

Barry Lam is Associate Professor and Chair of the Philosophy Department at Vassar College, where he teaches about knowledge, rationality,  the philosophy of language, life, death, and justice. He is also host and executive producer of Slate’s Hi-Phi Nation podcast, a show that blends philosophy with stories from everyday life, science, politics, the arts, and law. Season 4 of the show is dedicated to the philosophy of crime and punishment, taking the listener through the philosophical issues in criminal justice from criminalization, policing, imprisonment, and reintegration.

Lessons

1.

What Should We Criminalize: Moral Wrongs?

2.

What Should We Criminalize: The Common Good?

3.

Mens Rea Requirements in Criminalization

4.

Proportioning Verdicts and Punishments to Evidence

5.

Retributivist Justifications of Punishment

6.

Non Retributivist Justifications of Punishment

7.

Guilt and the Excuses

8.

Proportionality in Punishment

9.

Rule of Law for Discretion in Sentencing

10.

Should there be lifelong or permanent punishments?

Module Introduction

Administering criminal justice is one of the most coercive things a state can do to its own citizens. Lawmakers determine what counts as criminal, police determine who to arrest, detain, and in some cases even shoot, and judges decide how long the state can imprison a person, sometimes even execute them. Even after the official administration of punishment to a convicted offender is over, that person faces lifelong social consequences for their previous act. In liberal and democratic societies, the state claims to do all of this in our interest, and with our consent. What are the assumptions about justice and the morality of punishment underlying the practices of administering criminal justice, and are those assumptions sound?
Barry Lam, Chair and Associate Professor of Philosophy at Vassar College and producer of the Hi-Phi Nation podcast examines the philosophical assumptions underlying different stages of the criminal justice system, from beginning to end.
In the beginning is the need for lawmakers to decide what acts, and what states of mind, to criminalize. Our first series of videos look at the variety of reasons for these decisions, from dangers to the public, the need to solve messy social problems, to the demands of the public themselves. We examine what kinds of reasons are legitimate, and what kinds of reasons are illegitimate, when determining laws of criminalization.
In the next series of videos, we look at the relationship between moral responsibility and criminal responsibility. In everyday moral life, we know intuitively when to blame and when to excuse people who wrong us. How much of those practices carry over to how we punish criminal wrongdoers, and how much of them should carry over? We will look at the importance of intention and knowledge, and other states of mind, to moral responsibility, and look at the ways in which the law does and does not excuse criminal wrongdoers the way we excuse moral wrongdoers.
In our final series of videos, we will look at questions about why we should punish, how much, and who gets to decide these questions. We will examine views that say we should punish because it is good for the perpetrator, that we should punish because it is good for society, and that we should punish because perpetrators simply deserve it. We will look at theories that purport to tell us how much punishment a person deserves, and for how long, and we will look at the justice of giving judges, rather than the public or lawmakers, all of the power in determining lengths of punishment.

Learning Outcomes

  • Understand the philosophical issues surrounding what acts are criminalized and why.
  • Identify who has power in the criminal justice system and why they have such power.
  • Understand the connection between moral responsibility and criminal responsibility.
  • Identify the moral and political reasons for criminal punishment, and why those reasons may be contradictory.
  • Develop ways to question the criminal justice system based on your own moral and political commitments.
LESSON ONE

What Should we Criminalize: Moral Wrongs?

By the end of this lesson, you will be able to:

  • Apply the theory that we should only criminalize actions if they are intrinsic moral wrongs
  • Identify a primary justification for limiting criminalization to moral wrongdoings 
  • Assess this theory of criminalization in light of its implications in a range of cases

Watch

Comprehending the argument

1. Which of the following actions is LEAST likely to be criminalized if we only criminalized malum in se actions?

Correct! Wrong!

 

2. Maya believes that the only actions the government should criminalize are moral wrongdoings. According to the video, which TWO of the following claims is Maya most likely to give to justify this belief of hers?:

Please select 2 correct answers

Correct! Wrong!

Evaluating the argument

Kathy wishes she could get the newest cell phone she keeps seeing ads for online, and comes up with an idea for how to get it. Below is the sequence of actions that end with her successfully getting the cell phone of her dreams. Choose the moment in the story that you think Kathy starts engaging in activities that should be criminalized.
LESSON TWO

What Should We Criminalize: The Common Good?

By the end of this lesson, you will be able to:

  • Explain how free riders can lead to collective action problems
  • Describe how criminal law can be used to solve collective action problems and promote the common good
  • Identify one key problem with this “governing through crime” approach to criminalization

Watch

Comprehending the argument

A key strategy in fighting the spread of a contagious virus in a country is to vaccinate a high enough percentage of the country’s population that “herd immunity” is achieved, leaving the virus without enough hosts to continue transmitting and surviving within the community. How might free riders create a collective action problem in a country’s effort to achieve herd immunity through mass vaccination? 

Since herd immunity can be achieved without every single individual in the community getting vaccinated, some individuals decide not to bother getting the vaccine themselves, counting on enough of their fellow citizens to get vaccinated that the community threshold for herd immunity is achieved. 
In this way, these individuals become “free riders,” reaping the benefits of everyone else’s willingness to get vaccinated without having to bear any of the logistical issues or minor health risks of getting vaccinated themselves. 
As more and more people see the advantages of free riding, more and more people choose not to vaccinate themselves
At some point, enough people choose to become free riders that there aren’t enough people collectively acting to get themselves vaccinated, and the community therefore fails to achieve herd immunity, thereby putting everyone — including the free riders — at greater risk of infection.   

1. Citing studies showing that the consumption of sugary drinks increases the risk of various health problems, the mayor of a large city proposes a law to criminalize and impose a steep fine on the sale of popular sugary drinks in the city. As someone who believes in “governing by crime,” which TWO of the following arguments is the mayor most likely to give to defend this proposal?

Please select 2 correct answers

Correct! Wrong!

 

2. According to the video, what is one undesirable consequence of the U.S. government’s decision to rely heavily on the criminal law to solve social problems?

Correct! Wrong!

LESSON THREE

Mens Rea Requirements in Criminalization

By the end of this lesson, you will be able to:

  • Distinguish crimes with mens rea requirements from strict liability crimes
  • Recognize a central criticism of the use of mens rea requirements as a tool for social engineering
  • Evaluate arguments for and against the inclusion of mens rea requirements in criminal statutes

Watch

Comprehending the argument

1. In some U.S. states, selling alcohol to a minor can lead to a criminal conviction even if the seller believed that the customer was old enough to buy alcohol. Based on this description, how do these states classify the crime of selling alcohol to minors?

Correct! Wrong!

 

2. Kant is opposed to social engineers in the government treating mens rea requirements in criminal law as a tool for promoting the common good because he believes doing so is morally equivalent to:

Correct! Wrong!

Evaluating the argument

Sarah went onto a popular online website and purchased a used laptop at a surprisingly great price, not knowing that the laptop she bought had been stolen by the seller. There's a law against buying stolen goods, and when police investigators discover Sarah’s purchase, they pick her up for questioning, during which she convinces them that it never even crossed her mind that the laptop might be stolen. In your opinion, should the police charge her with the crime of buying stolen goods? Which of the following answers most closely matches your opinion?
LESSON FOUR

Proportioning Verdicts and Punishments to Evidence

By the end of this lesson, you will be able to:

  • Contrast several alternative systems of verdict options available to a jury as it determines the guilt of a defendant in a criminal trial
  • Explain how the frequency of plea deals affects which system of verdicts and punishments criminal defendants effectively face in the US
  • Evaluate arguments for and against adopting a proportionate system of verdict options in place of the binary system currently used in US criminal cases

Watch

Comprehending the argument

1. Yasmin is a juror in a criminal case. Based on all the evidence presented, Yasmin is pretty sure the defendant didn’t commit the crime. Although there are a couple of loose ends that leave her with a bit of uncertainty, she firmly believes that there’s not enough evidence to justify punishing him at all -- or even to justify having continued suspicions hanging over him after the trial. Which of the verdict systems discussed in the video would allow Yasmin to choose a verdict that most precisely reflects her judgment in this case?

Correct! Wrong!

 

2. Which of the following statements about plea bargains in US criminal cases is NOT true?

Correct! Wrong!

Evaluating the argument

In light of the arguments given in the video, which of the following statements best reflects your view on whether the US should stick with its current binary system or adopt a more proportionate system of verdicts for criminal cases?
LESSON FIVE

Retributivist Justifications of Punishment

By the end of this lesson, you will be able to:

  • Distinguish punishment from other ways a government might impose burdens on its population
  • Describe the retributivist justification of punishment 
  • Classify and assess arguments for and against retributivism

Watch

Comprehending the argument

1. In some countries, every citizen is obligated to serve in the military for some minimum period of time despite the fact that such service is often dangerous, requires delaying certain life choices, and wouldn’t be voluntarily chosen by many. Does this government-mandated military service count as a form of punishment?

Correct! Wrong!

 

2. Declaring himself to be a retributivist, George argues that offenders should not be given access to substantial, degree-conferring educational programs while in prison. Which of the following lines of reasoning is George most likely to give in opposing education in prisons?

Correct! Wrong!

Evaluating the argument

In your opinion, which of the following is the strongest argument against retributivist punishment?
LESSON SIX

Non Retributivist Justifications of Punishment

By the end of this lesson, you will be able to:

  • Distinguish consent-based justifications from social engineering-based justifications of punishment
  • Identify limitations in the effort to justify punishment on contractualist grounds
  • Use your understanding of several major challenges to social engineering justifications of punishment to criticize a concrete criminal law proposal

Watch

Comprehending the argument

1. Match each statement to the nearest justification of punishment:

Evaluating the argument

Citing studies showing that the consumption of sugary drinks increases the risk of various health problems, the mayor of a large city proposes a law to criminalize and impose a steep fine on the sale of popular sugary drinks in the city, in an effort to change the consumption patterns of people who are otherwise too addicted to these drinks to stop doing what they know is bad for them. The proposal was met with mixed responses from the public, with a substantial group of residents strongly opposed. In your opinion, which of the following lines of argument given by the opposition makes the most convincing case against this attempt to “govern by crime”?
LESSON SEVEN

Guilt and the Excuses

By the end of this lesson, you will be able to:

  • Distinguish between doing something wrong and being guilty for it
  • Understand the difference between a moral excuse for a crime and a legal excuse
  • Connect appropriate feelings of guilt with when someone should be punished for a crime

Watch

Comprehending the argument

Which of the following is not a legal excuse:

Correct! Wrong!


Which of the following is true?

Correct! Wrong!


According to the video, which of the following is a good test as to whether someone should be held legally guilty for a crime?

Correct! Wrong!

Critical Thinking

After Joe’s bad accident, his doctor prescribed him opioids to manage the pain, downplaying questions from Joe’s family about possible side effects, and by the time Joe recovered from his injuries, he had developed an addiction to opioids. Months later, in order to feed his addiction, Joe started committing petty property crimes like theft and purchasing illegal opioids until he got arrested. How do you think the legal system should handle Joe’s case?
LESSON EIGHT

Proportionality in Punishment

By the end of the lesson, you will be able to:

  • Understand what it means to say that “the punishment should fit the crime” 
  • Explain the difference between “cardinal” and “ordinal”  proportionality
  • Explain the problems with relying on each of these notions of proportionality when determining a punishment 
  • Consider the importance of generating social goods through systems of punishment
  • Formulate your own judgment about how much to punish someone for a crime.

Watch

Comprehending the argument

1. Which of the following definitions represents ordinal proportionality?

Correct! Wrong!

Critical Thinking

Suppose that, in the heat of the moment after years of bullying, a person punches their bully in the face and is arrested for assault. The typical sentence for intentional assault is 5 days in jail. Which of the following best captures what you think about the case:

Based on the example of the candy thief in the video who cannot control himself, what do you think is the best form of punishment for the child after he is found out by his parents?
LESSON NINE

Rule of Law for Discretion in Sentencing

By the end of this lesson, you will be able to:

  • Identify criticisms over imposed mandatory minimums for crime
  • Evaluate the impact of aggravating and mitigating factors on the severity of a crime
  • Understand the costs and benefits of judicial discretion on allocating punishment
  • Explain the divide thought between advocates of judicial discretion and advocates of  the rule of law

Watch

Comprehending the argument

1. Which of the following defines a mandatory minimum?

Correct! Wrong!


2. Which of the following is an example of a judge using discretionary sentencing?

Correct! Wrong!

Critical thinking

1. Suppose that a person is arrested for holding up a bank and taking money from the teller. Think of the following variations on the case, and consider whether you think these variations are aggravating, mitigating, or neutral factors in determining the severity of the sentence a judge should impose.

The gun was fake.

The gun was real but not loaded.

There was no gun, it was just his fingers in a jacket pocket.

The total amount of money was $400.

There were children in the bank.

The gun was not only loaded but it went off and almost hit someone.

The person doing the robbing was starving from not having eaten in three weeks.

The bank had refused to give the person a loan for an automobile the previous day.

2. In 1986 the Anti-Drug Abuse Act created a disparity between the penalties for possession of crack cocaine versus powder cocaine. The act imposed the same penalties on crack cocaine at almost 100 times that of powder cocaine. The reasoning was based on the idea that crack cocaine – the solid rock form of the drug – is more dangerous than powder. Yet this sentencing has disproportionately affected poorer black communities, where the cheaper “crack” form of cocaine is more prevalent, compared to white communities, where the more expensive powder form of the drug is more likely to be found.

Considering the information presented above, choose the statement that best represents your view on how the judge should approach the following case:

John is an 18 year-old recent black teenager from a traditionally poor neighborhood in Pennsylvania, and was on track to be the first in his family to attend college – that is, before he was arrested for possession of crack cocaine. This arrest was John’s first offense and he claims that he was not the owner or user of the drug, but for John’s crime, Pennsylvania law requires a sentence of 10 years in jail with no possibility of parole.
LESSON TEN

Should there be lifelong or permanent punishments?

By the end of this lesson, you will be able to:

  • Identify examples of the “collateral consequences” of incarceration
  • Distinguish desert-based justifications from “liability”-based justifications of lifelong collateral consequences
  • Adjudicate arguments for and against the justice of collateral consequences

Watch

Comprehending the argument

1. In an effort to convince the members of a legislative committee on criminal justice reform to work toward the elimination of collateral consequences, the director of an offender-advocacy organization tells the stories of several sympathetic offenders, describing how these consequences of incarceration have perpetuated inescapable cycles of poverty, desperation, and criminal activity in their lives. Which of the following conditions is the director LEAST likely to have cited as an example of the collateral consequences faced by these individuals?

Correct! Wrong!


2. Although Sharon isn’t a retributivist, she believes that criminal offenders are liable to harm, so it’s justified for them to face collateral consequences of their incarceration after being released. Which of the following statements best captures her reasoning about collateral consequences:

Correct! Wrong!

Evaluating the argument

Which ONE of the following statements best captures the position you find most convincing regarding the collateral consequences of incarceration faced by released offenders?