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What is the dirty Harry problem? What is the exclusionary rule? - This is about a cop taking the “law into his own hands” o Extracted a confession in order to try and save a 14 year old girl from a known killer named Scorpio, little did he know she was already dead - Exclusionary Rule: evidence extracted without due process is inadmissible in a court of law What does deontological ethics say about the dirty Harry problem? - Deontological view: Kant would argue you can never use a person as the mean to an end – unethical to torture the person to obtain a confession What does the consequentialist view say about the dirty Harry problem? - Consequentialist View: the action of torture itself is not good or bad in itself, the consequences are good or bad – you have to see what set of consequences produces the best actions What does virtue ethics say about the dirty Harry problem? - Virtue Ethics: a mature cop would know what rules to follow and to apply to a certain extent in a special circumstance or case of urgency, every action should express your character What are the five elements of the nature of punishment? 1. Punishment is meant to be evil 2. Punishment is for violation of a basic rule or law 3. Punishment is done only to the offender 4. Punishment is carried out by a moral agent (reason for it) 5. Punishment is imposed by a legitimate authority What are the theories of punishment and their main concepts? - Deterrence o Believe that by punishing someone you will deter people from doing a similar type of action, get in the way of potential criminals - Incapacitation o Are punishing the offender and removing them from society - Rehabilitation o You try to remove a person’s vices and maximize their virtues – it is all about changing their character and finding their true self o People are inherently good, they just sometimes do bad things - Retribution o When you commit a crime you should pay something back to society o Lex Talonis: an eye for an eye (form of payback) - Vengeance o Emotional reaction that has no limits outside legal authority, relatively private matter

What are the three elements of Retributivism? 1. Everyone who is guilty should be punished 2. Only the guilty should be punished 3. Punishment should be proportional to the seriousness of the crime What is Kant’s notion of Retributivism? - Kant presupposes human beings are free and rational - When you commit a crime you are giving up your freedom and eclipsing your reasoning – makes you less human - Need to try to make the punishment as strict and equal as possible - Criticism: people are more complex (doesn’t take character into account) What is Morris’ notion of Retributivism? - Morris is trying to update Kant’s theory - Says we all enter into a social contract with society and agree to rules of the game - Society has a balance that needs to be maintained and crime compromises this because people are cheating and not playing pay the rules so punishment is there to bring society back to balance - THREE KEY POINTS: o 1. Punishment is there to restore social order because rules have been broken and taken unfair advantage over someone else o 2. If you have an unfair advantage, it has to be redress o 3. Punishment is the proper form of redress so society should and needs to punish the offender for breaking primary laws - Criticism: doesn’t take into account crimes of unfair advantage and based on the situation crimes may be treated differently What is desert? - It is about who gets what and why - Two notions: strict equality and proportionality - Try to put crimes in order of seriousness What is social utility? - An action should be followed if it creates a high social utility - Social utility is a necessary and sufficient condition for punishment o Necessary: punishment leads to something good o Sufficient: punish a person enough so social utility is met - There needs to be proportionality of crime and punishment - Punishment is about: preventing crime, deterring crime, reforming laws so they are just right - Criticism: it does not have notions of justice or desert What is deterrence?

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Kant argues you can never use a person as a means to an end – in deterrence you are using a criminal for a social end There is no empirical proof it actually works and needs to have an element of psychology to it o There has to be certainty that punishment will exist, real and immediate punishment

What are the philosophical issues of deterrence? 1. If the law is too complex, deterrence won’t work 2. Deterrence itself is too complex 3. Given human nature, it will always want to cheat (constantly push things to their limits so you have to increase the effect of the deterrent) 4. You can deter every action possible with the right set of deterrents (need ‘optimality’ – optimal amount of compliance to uphold the rule of law What is rehabilitation? What is the problem according to Morris? - Punishment is not an evil but rather a good thing where criminal receives second chances - Morris would argue the problem is crime is seen as a disease that can be cured with good - Criticism: o 1. Victim is misidentified – blame something else other than the criminal who is considered a victim as well o 2. Rehabilitation might not work – there are limits as to how far education and socialization can go o 3. Morris and Kant say there are limits on rationality as criminals, regardless, have a notions of rationality for their actions – we should not accept rehabilitation because it disrespects moral dignity of human beings What does Morris believe? - Morris believes there is too much therapy and rehabilitation causing too many people to ‘get off’ on crimes - He believes retribution is the answer (payback for actions) - Implications of therapy: o 1. Criminal is not thought of to be at fault but rather suffering from a condition (undermines moral responsibility) o 2. Criminal needs to be helped rather than deprived of something o 3. Criminal is thought to owe a debt in society and is not eligible for forgiveness o 4. Therapy is neither proportional to the crime or restricted from being cruel (may be trying to help someone who doesn’t want to be helped or is past the point of help) o 5. Better preventative care should be delivered rather than waiting until a crime has occurred

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o 6. Since therapy is beneficial, less need for safeguards to protect innocents Morris’ own view is about Fairness and Contract – when someone commits a crime, the criminal is undermining the social contract and needs to pay something back to society to restore that social contract

What is Hampton’s argument? - Punishment is about education - Try to help restore individuals as human beings (intention of looking at the individual first – if it has social utility it is a good thing) - Punishment should never be an evil to the victim or criminal, needs to be a good thing - Her theory can be coupled with other theories (not exclusivity theory) - Correct Harms over righting wrongs - Argues we need moral boundaries – punishment is like a fence (paternalistic) - Punishment is about restoring humanity (people are good and actions are bad) - Even violent criminals deserve moral goodness even though they may not be able to be rehabilitated, you need to try - She is arguing from a natural law point of view What are the implications of Hampton’s argument? - Implications: o You cannot make the criminal and make the person suffer o Taxes need to go back to the criminal justice system o Language is important – she says we need to support criminal in rehabilitation rather than Morris who says its interference What is Barnett Arguing? - Restitution is a different form punishment - Barnett disagrees with interference of the state because he is a libertarian - Believes in Free Market Restitution – exchange between individuals (criminal justice system is part of the market) - Believes it is about the individual and the individual not including society - ETHICAL EGOISM = IMPERSONAL o A person is morally right when they promote their own self-interest o Applies to criminal justice system by saying you commit a crime based on your self-interest but you do the action individually What are the problems with Barnett’s theory? - Problems: o 1. A person can misunderstand what their own self-interest is o 2. Some people can never understand their own self-interest o 3. No way to resolve competing self-interest o 4. Can cause more harm than less harm o 5. Doesn’t explain why self-interest is important

Who is a retributivist? Who is a rehabilitationist? Who is a restitutionist? - Retributivist: Morris - Rehabilitationist: Hampton - Restitutionist: Barnett...