In this week’s readings we examine the theories of criminal law, sentencing and punishment cases. The life of the criminal law begins with criminalization. We are not invited to commit crimes—like murder, or driving uninsured—just as long as we willingly take the prescribed legal consequences. As far as the law is concerned, criminal conduct is to be avoided (Stanford Encyclopedia). Lawmakers must create sentencing schedules that assign each type of crime a particular sentence or range sentences. After conviction, convicts are sentenced by sentencing authorities (usually courts), within the bounds of the sentencing schedule.

Sentences usually include punishments, but they can take other forms, such as involuntary commitment to a treatment facility, which is not technically a punishment (Brand p179).

The first punishment case that we examine is McCleskey’s, who was a man who robbed a furniture store and killed a white police officer during the robbery. In making its decision whether to impose the death sentence, the jury considered the aggravating circumstances and mitigating circumstances surrounding the crime: Under GA law, in the penalty phase of the trial, the jury could not consider imposing the death penalty, unless it found, beyond a reasonable doubt, that the murder was accompanied by at least one aggravating circumstance.

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The jury found that the killing had been accompanied by two aggravating circumstances: 1) The murder was committed during the course of an armed robbery, and 2) a law enforcement officer had been killed in the performance of his duties. McCleskey offered no mitigating evidence and the jury recommended that McCleskey be sentenced to death.

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McCleskey appealed claiming, amongst other things, that the GA capital sentencing process is administered in a racially discriminatory manner in violation of the 8th and 14th Amendments to the United States. He claims that the GA’s capital punishment law violates the 14th Amendment’s Equal Protection Clause: He argues that race has infected the administration of GA's statute in two ways: (1) Persons who murder Whites are more likely to be sentenced to death than persons who murder Blacks, and (2) Black murderers are more likely to be sentenced to death than White murderers. Brand claims that Death penalty in the US is presently unjust because racial factors influence the behavior of prosecutors and juries. The documented effects show that many jurors and prosecutors treat defendants differently because of race. In the United States, black murderers are more likely to be executed than white murderers. Many abolitionists contend that justice requires a moratorium on the death penalty in th US until the states can offer reasonable assurances that racial factors will no longer influence capital sentencing. Justice does not require the state to institute a moratorium on the death penalty just because some actors within the system are racially biased.

Another similar death penalty case was Roper v. Simon trial. In the Supreme Court there are arguments about the rights and wrong during this case when it comes to murder, and when you are under age even if you plan it out you are sure to get away with it because of the Eighth and the Fourteenth Amendments under the Constitution of the United States. The case of Roper v. Simmons posed an essential question: is it possible for one to recieve the death penalty for a crime committed as a juvenile? Is it unconstitutional to take the life of someone under the age of 18 if they committed a murder?

In 2002 however, this case was taken to the supreme court. As the defendant, Christopher Simmons fought for his life being executed as a result of his murder. His reason being, that since he did perform this action whilst he was 17, his execution will be considered cruel and unusual punishment under the Eighth Amendment, That has the outcome for the courts to reconsider his case, resulting in the U.S Supreme Court setting aside his death sentence.

According to Brand, in this century capital punishment has been narrowly restricted to the most serious crimes, such as rape of children, treason, and certain murders. The question is whether given current institutions and social conditions, a death sentence is ever morally permissible for premeditated murder.

Retributivist retentionists argue that someone who does not respect the lives of others has waived his own right to life and deserves to die. Executing him is, at least, morally permissible. Some retributivists claim that nothing short of execution suffices to give killers what they deserve. A consequentalist supports capital punishment only if she believes that it has more good effects than bad. All consequentalists accept incapacitation. They believe that execution has some bad effects (on the convict and any loved ones) and they believe that nothing less than protecting others from violence can outweigh such bad effects. Executing murderers is inconsistent or ‘’hypocrytical’’ because it amounts to killing someone in order to demonstrate that killing is wrong. Abolitionist premises that it is wrong to kill someone who poses no imminent threat to anyone else. Abolitionists claim that the state should not execute murderers because doing so is inhumane. It is uncivilized for the state to kill someone who poses no imminent threat. According to them, capital punishment is uncivilized, akin to torture. Some abolitionists argue that capital punishment should be abolished because we cannot eliminate the possibility of executing an innocent convict. Execution is irrevocable. Dead people cannot be brought back. Yet, abolitionists do not not favor eliminating incarceration altogether just because innocent convicts languish in prison today. Eliminating incarceration would have disastrous social consequences, whereas eliminating the death penalty would not.

In criminal law theory, the most important theories are mens area and defense. Standard mens area requirements include intention and recklessness. Culpability, as that term is used here, is a moral notion. It is synonymous with moral fault or moral blameworthiness. Mens area is not sufficient for culpability—even intentional killings are sometimes excused. —culpability may presuppose at least some element of mens rea (Stanford Encyclopedia). Every criminal statue has a conduct element, but conduct is not usually enough to get one convicted of a crime. Some elements, including conduct elements, must be accompanied by a culpable mental state. This requirement is historically referred to as the guilty mind or mens rea requirement. Modern statutes specify mental states with respect to each element of the crime. The three mental states are purpose, knowledge, and recklessness (Brand p.155).

Regarding defense theory, we have already seen that, for some, we are criminally responsible for committing offences and criminally liable for committing crimes. This distinction relies on a further distinction between offences and defences: crimes are committed by those who satisfy all the elements of an offence, without satisfying all the elements of any available defence. Offence elements must be proved if conviction is to be the legally correct verdict of the court (Stanford Encyclopedia). Brand claims that Inchoate offenses constitute incomplete parts of complete offenses. The most familiar inchoate offense is attempt (he acts with the purpose of achieving a forbidden result), solicitation (encourage someone else to commit a crime) and conspiracy (forming an agreement with another person or persons to commit a crime).

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Death Penalty In The US. (2022, Jun 03). Retrieved from

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