Oliver Wendell Holmes Jr., The Common Law 1 (1881).
The Hopatcong cop charged with simple assault after his encounter with an air horn wielding individual in a bunny costume has made the news again. If nothing else, this will provide a case study, an object lesson if you will, in the justifications for punishment. I learned this in law school, so you might want to pay attention.
Apparently, the Sussex County First Assistant Prosecutor recently charged the officer with harassment, too. Indeed, one might say the government is providing the officer with on the job training for something that the criminals already know—don’t get caught. And let’s be candid. The police have a long tradition of using physical force when exercising control over disorderly suspects.
That should be easy to comprehend. For example, the cops are supposed to stand for social order. Additionally, they require people to exercise self-control. Unruly individuals lack self-control, and do not ordinarily yield to commands to exercise self-control. Thus, physical force.
Additionally, this contrast in positions gives rise to the good guy-bad guy distinction that government officials amuse themselves with. More than self-control, however, law enforcement authorities expect cooperation from suspects. Therefore, they shout, threaten, and engage in other tactics of persuasion during interrogations. Furthermore, this never bothered law-abiding society much, if at all, because the ends—protecting law-abiding people from the specter of crime—justified the means. And the First Assistant Prosecutor for Sussex County cannot be oblivious to any of this.
Does this mean the Sussex County Prosecutors Office charged the officer for simply having the misfortune of getting caught on video? Don’t expect them to admit it. I would sooner expect the government to dust off the justifications for punishment from first year Criminal Law.
Justifications For Punishment
Generally speaking, there are two schools of thought with respect to the justifications for punishment. One school is utilitarian, and he other is retributivist.
The utilitian calculates for the net benefit of society, whose criteria to justify punishment include general deterrence, specific deterrence, and rehabilitation.
- Deterrence means discouraging the general public from breaking the law.
- Specific deterrence focuses on the accused and seeks to discourage the accused from breaking the law in the future. General deterrence, however, makes an example out of one offender in order to discourage society in general.
- Rehabilitation involves bringing an offender back to the standards that society expects.
Unlike the utilitarian, the retributivist assesses each individual offender. Instead of considering social policies, the retributivist asks first whether the offender did something wrong, and second whether he is blameworthy. Here, individual characteristics trump society’s interest in punishment in order to give the offender his just deserts.
Academics v. Reality
These schools of thought most likely do not occupy the minds of sentencing judges. Nevertheless, they animate the policy considerations of the sentencing criteria that judges must follow. When a judge sentences an individual convicted of an offense, the judge will certainly look at the offense committed. Additionally, the judge should give proper weight to the whole person standing before the court. This will allow the punishment to truly fit the person.