NCJ Number
111114
Journal
University of California Davis Law Review Volume: 18 Issue: 4 Dated: (Summer 1985) Pages: 973-1035
Date Published
1985
Length
63 pages
Annotation
This article constructs a general theory of criminal punishment; describes the nature of punishment and justifications for its role in criminal justice, particularly retribution; and applies these analyses to a consideration of capital punishment.
Abstract
It is shown that the justifications for punishment accepted by most people are insufficient to justify capital punishment. Utilitarian theorists are incorrect in arguing that crime control is the primary justification for punishment and that retribution applies only to limit allocation of punishment to criminal offenders. Instead, individual desert is the primary justification; utilitarian concerns provide secondary limits on the infliction of punishment and cannot justify capital punishment. Although some retributive theorists favor capital punishment on the grounds that the worst murderers deserve to die in retaliation for killing others; retribution, which can be the only justification for punishment, requires that the offender experience and even accept punishment as deserved. Because of its unique finality, death cannot be experienced in this way. Thus, neither utilitarian nor retributive theories can justify the imposition of the death penalty. 173 footnotes. (Author abstract modified)