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August 19, 2013

Getting a running start on our discussion of punishment theory, pot prohibition and Parker consumption

Though I was grateful to hear everyone in our class speak (and report their favorite law-related movies), I was disappointed my own excessive blathering meant we did not start talking about how theories of punishment can and should inform debate over (1) whether and why the criminal law should condemn and harm persons who grow marijuana, and (2) whether and why the criminal law should condemn and harm the persons who murdered Richard Parker.   Though we will take these issues up at lengthy in our class on Wednesday, I would love to get a running start on these topics via comments to this post.

In order to connect this debate with key punishment theory concepts and terms, I would be especially excited is student comments focused at least somewhat on which theories of punishment seem to provide the best (or perhaps the worst) justifications for condemning/harmimg persons who grow marijuana and/or the for persons who murdered Richard Parker.

And, to provide a little Ohio criminal law context for your extra engagement, let me quote the first part (and link to the full text) of Ohio's basic criminal statutes covering these offenses:

Ohio Revised Code Section 2903.01: Aggravated murder.

(A) No person shall purposely, and with prior calculation and design, cause the death of another...

Ohio Revised Code Section 2925.04: Illegal manufacture of drugs - illegal cultivation of marihuana - methamphetamine offenses.

(A) No person shall knowingly cultivate marihuana....

In addition, if you are looking for some more "current events" which can allow you to think about theories of punishment, check out this notable New York Times op-ed from today's paper headlined "Graying Prisoners."  See if you can identify how theories of punishment are (indirectly?) used by the author of this commentary in the main argument of the commentary.

August 19, 2013 in Class reflections, Reflections on class readings | Permalink


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I believe retribution is an interesting theory to look at when referring to the murder of Parker. According to the theory, the punishment needs to be equal to the crime committed, so Dudley and Stephens should have been put to death. But that theory also assumes that a wrong has been committed, so it would have to be decided if murdering Parker was actually wrong. Because retribution is largely based on societal values and ideas, it would be an interesting argument to see who in society would believe it was best to save as many people as possible even if it meant sacrificing one, or who would believe murder in any aspect is wrong. According to Ohio criminal statute, the killing of Parker was a definite misconduct.

Posted by: Ashley Winters | Aug 20, 2013 4:19:22 PM

Thinking through the Dudley and Stephens case, I found it interesting to try and apply the main components of the Utilitarian theory of punishment; preventing crime through deterring, reforming, and incapacitating. In the circumstances of this case it seems, that none of those three goals would be fully achieved. As the court wrote in its opinion "we are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy," from this I infer that the court would not expect many to act differently in similar situations, thus, deterrence isn't really achieved. As far as the reformation element of the theory goes, it doesn't seem as though Dudley and Stephens (I obviously can't say this for certain but am merely speculating) probably will not lapse back into their old ways or need an alteration or "change in [their] character and habits." Incapacitation also fails in its stated goal to "take away the power of doing injury," because we can believe that Dudley and Stephens are unlikely to find themselves in situations where they may commit a similar offense against other citizens. After looking at the case in this way and revisiting Bentham's theories of when punishment ought not be inflicted, I think one could make the argument that within the strictly utilitarian theory of punishment framework, punishment in this instance would be inefficacious as it would "have no power to produce an effect upon the will, and which, in consequence, have no tendency towards the prevention of the acts."

Posted by: Kristen Maiorino | Aug 20, 2013 10:14:08 PM

Re: Winter's comment. I think the notion behind retributionivism is that justice is a fixed thing, existing independent of "societal values" and grounded in something like the "laws of nature" referenced by the Declaration of Independence. As such, the fact that Dudley and Stephens were hailed as heroes by many in society is not relevant to Lord Coleridge's opinion, who seems to cite as a "rule" for the case the moral foundations of law, foundations that impose duties upon all people equally as the necessary implication of inalienable rights. The Ohio law seems to me to be best justified on these backward-looking grounds, rather than any appeal to unforeseeable consequences in an unknowable future. If Dudley and Stephens ate Parker-rolls on Lake Erie rather than on the high seas, Ohio's law clearly would indicate their guilt of "purposefully ... with prior calculation ... causing the death" of Parker, violating Parker's rights and breaching Dudley and Stephen's corresponding duties written in what might be understood as a civilization-wide social contract. At least, this is the argument I would find most compelling regarding the case. Thoughts?

Posted by: Elliot Gaiser | Aug 21, 2013 4:51:49 PM

Kristen--> It is for all the reasons you worked through: deterring, reforming, and incapacitation, that I find myself reluctant to jump on the utilitarian mindset. The punishment, whatever it may be, satisfies none of these principles.

Obviously, it only through murder (and subsequent ParkerBurgers) that three lives were saved. If I accept this as the best outcome, I am condoning murder and cannibalism of a defenseless boy nonetheless (even if extreme circumstances).

I think, as the readings for Friday briefly touch on, RETRIBUTION must play an important role in deciding a criminals punishment. At the moment, I don't really have any particular explanation for my thoughts except: my gut tells me something is wrong.

I know this aligns with retributivism (spelling?) most closely...or at least my understanding of retributivism to this point. Justice demands punishment of criminals. If you murder a boy (or anyone) there must be a fitting punishment.

Posted by: Christopher Sponseller | Aug 21, 2013 10:14:42 PM

Certainly Dudley and Stephens should be punished for the harm they caused Richard Parker. However, I am unsure that sentencing the men to death provides any tangible benefit either to the offenders, or to society. The complicating factor in this case involves the fact that many would consider the murder to be somewhat justified, given the "life or death" circumstances. I take serious issue with the "eye for an eye" mentality that seems to accompany the thought behind retributivism. As Christopher stated, justice demands punishment of criminals. I agree with this sentiment, but does eliminating the lives of these three men in the name of righteousness outweigh the possible good they may have done society in the future? Can this solution be deemed a true victory for retributivists in the absence of knowing what these men (who, if given a chance, could have been reformed through utilitarian measures) may have turned out to be? Granted, once a murder has occurred, perhaps the men would be considered "too big of a threat" to society to ever be freed from prison. Using utilitarian thought, life incarceration for the murderers (in my opinion) would have provided the "greatest good for the greatest number" and simultaneously could have served as an example to educate the public.

Posted by: Kelly Flanigan | Aug 22, 2013 6:08:58 PM

I find myself thinking of this from both an economic and somewhat philosophical perspective. The argument for a life sentence has merits on the idea that we should do what is best for the greater good, and a life sentence might possibly do the greatest good. However, more now than ever, I think the economics of the situation may be starting to change this idea. The cost of incarceration of a prisoner for life based on a murder he/she committed is extremely high nowadays (I also know the cost of pursuing the death penalty via the various appeals and motions is extremely high, which is a subsequent discussion of its own possibly worth having). As such, is there a cost to incarcerating a murderer for the rest of his/her life, especially if the offense occurs at an early age? If the cost of prosecuting this individual could be reduced so as to make the death penalty less expensive than incarceration, could you not then make the argument that the death penalty would do the greatest good? For example, what if instead of using funds to keep this individual incarcerated we could hire an additional fireman or police officer? If this additional individual could help reduce crime or limit the damages of fires, is there not a benefit from such an action? Based on this line of thinking, I believe you could make the argument for the death penalty from both a utilitarian perspective in addition to a retributivist perspective. The question would be one of determining the impact of such an option as a potential cost to society compared to the benefit to be gained. If the benefit gained were greater than the cost, then the death penalty could satisfy the utilitarian viewpoint and not just the retributivist viewpoint.

Posted by: Michael Chapman | Aug 22, 2013 10:12:55 PM

I think it is easier to understand the judgment of the Richard Parker case from a retributivism perspective and very hard to understand it from a utilitarianism perspective. “Dudley and Stephen did something naturally wrong, so they were sentenced to death”, this argument makes sense. However, I do not believe that they should be sentenced to death, even from a retributivism view. Suppose one should be punished according to the evil he has done, is every murder equally evil? In my opinion, killing someone for fun is much more evil than killing someone for survival in a desperate situation. If the murderer in the former case should be sentence to death, it seem that the murderer in the latter should not be sentenced to death.

Posted by: Di Zeng | Aug 23, 2013 12:01:50 AM

Re: Di Zeng’s comment- “Is every murder equally evil?”

Di, I think that question is crucial to the Dudley & Stephens case. Can we truly argue that the murder of a man for purposes of saving three other lives is in fact equal to something like the murder an innocent child?

To the second point in your posting, while the sentencing of death may seem to most to be very clearly under the umbrella of retributivism, I see the sentence (and subsequent plea for mercy) has more of a utilitarian way of thinking, specifically as utilitarianism relates to deterrence. I believe the court had to send a message not only to Dudley & Stephens, but also to the public at large. If they hadn’t, you could have had anyone taking their worst enemy out for trip on the open waters and killing them under the guise of potential starvation and death. The court had to come down on Dudley and Stephens to prevent an outbreak of such crimes from occurring, and thus to support the greater good of society as a whole.

Posted by: Morgan Cheek | Aug 23, 2013 10:58:24 AM

I am late to the game on commenting but I have been reading the posts (not commenting for fear of being a "yes, man."). I definitely fall on the side of retributive justice. Imagine that Parker is your son, brother or friend. Would you trust the word of the other three men, that Parker was the weakest of the four and that his death was imminent? If not, than there is no other response to the murder of Parker other than the subsequent punishment of Dudley and Stephens. While Dudley and Stephens may have been telling the truth, they were in no position to make a decision on who should live and who should die. We do not want to encourage murderers (or killers, if there is a difference) to make decisions "as if they were God." Who are they to decide who should live or who should die? It very well could have been that Dudley or Stephens was the weakest amongst the abandoned and needed to eat or face certain death and in coming to that conclusion decided to kill Parker. Parker deserved his day in-court, for his unlawful (although perhaps moral) death.

Posted by: Matt Raby | Aug 23, 2013 12:07:02 PM

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