UNIT 6.

PUNISHMENT

6.1. Introduction
In UNIT 6 the students become familiar with the types of penalties and with what
taking them means. The students are presented a number of crimes and the
punishment in correlation to the degree of peril that they presuppose. They are also
presented some reparatory measures that are necessary for the rehabilitation of the
convicted.

6.2. Aims
On completion of UNIT SIX students will be able to:
 Differentiate between types of punishments
 Be familiar to the punishments when put in the situation of deciding
upon one and justify their choice

Study time for UNIT SIX: 2 hours.

6.3. Pre-reading tasks

Read the following questions and think about the answers. Give
examples where possible.
1. Do you believe that someone who committed a crime should somehow
pay for his/ her deeds? How?
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2. Do you agree to the Law of Moses? If yes, why? If not, why?
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6.4. Retributive justice

Reading task. Read carefully the text in order to understand the meaning
of ‘retributive justice’. Secondly, make a list of the ‘retributive justice’
features.

Retributive justice is a theory of justice that holds that the best response

to a crime is a punishment proportional to the offense, inflicted because
the offender deserves the punishment. Prevention of future crimes
(deterrence) or rehabilitation of the offender is not considered in
determining such punishments. The theory holds that when an offender
breaks the law, justice requires that he or she suffer in return. Retribution
is different from revenge because retributive justice is only directed at
wrongs, has inherent limits, is not personal, involves no pleasure at the
suffering of others and employs procedural standards.
The concept is found in most world cultures and in many ancient texts.
The presence of retributive justice in ancient Jewish culture is shown by
its inclusion in the law of Moses, which includes the punishments of "life
for life, eye for eye, tooth for tooth, hand for hand, foot for foot". Very
similar phrasing is found in the Code of Hammurabi. Documents assert
similar values in other cultures. However, the judgment of whether a
punishment is appropriately severe can vary greatly across cultures and
individuals.

(https://en.wikipedia.org/wiki/Retributive_justice)
‘retributive justice’ features
1. _____________________
2. _____________________
3. _____________________
4. _____________________
5. _____________________

6.6. Let’s remember ...

What are the differences between these pairs of words; after you decide upon the
meaning of these words, make up sentences of your own where to illustrate the
meaning of these words.

proscribes ≠ prescribes

a. ______________________________________________________________
b. ______________________________________________________________

jurisdiction ≠ jurisprudence

a. ______________________________________________________________
b. ______________________________________________________________

resolution ≠ revolution

a. ______________________________________________________________
b. ______________________________________________________________

civil ≠ civilian

a. ______________________________________________________________
b. ______________________________________________________________
property ≠ propriety

a. ____________________________________________________________
b. ______________________________________________________________

6.6.1. Pronunciation
Read the following words, paying attention to their pronunciation:
1. incarcerate [ɪnˈkɑː.sər.eɪt]
2. lenient [ˈliː.ni.ənt]
3. effectiveness [ɪˈfek·tɪv·nəs]
4. compensation [ˌkɒm.penˈseɪ.ʃən]
5. tort [ˈtɔːt]

6.7. Incapacitation

Express your opinion on the judicial concepts in this paragraph:

Incapacitation – Designed simply to keep criminals away from society so
that the public is protected from their misconduct. This is often achieved
through prison sentences today. The death penalty has served the same
purpose.

Incapacitation Death Penalty

________________________ ________________________
________________________ ________________________
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________________________ ________________________

Derive the words in the following exercise and transform them into what is
requested between brackets:

physical (adjective into adverb) → __________________________

punish (verb into noun) → __________________________
banish (verb into noun) → __________________________
desirable (negative prefix + adjective) → __________________________
penal (adjective into noun) → __________________________
incarcerate (verb into noun) → __________________________
capacitation (negative prefix + noun) → __________________________
find (verb into noun) → __________________________
effective (adjective into noun) → __________________________

6.8. Deterrence

Match the type of deterrence (its purpose is to persuade citizens and possible
offenders or re-offenders to conform to the rules of law) to the elements that
characterize each of them.

1. Specific deterrence  a. seeks to reconcile how effective

different types of punishment are as
either specific or general deterrence
2. General deterrence  b. refers to situations in which the
threat of penalty has some deterrent
value even when someone engages
in illegal behaviour. (For example, a
criminal simply robbing a victim,
instead of also causing physical
harm.)
3. Marginal deterrence  c. analyzes how effective
punishment is on an individual’s
future behaviour
4. Partial deterrence  d. seeks to understand how
 individual punishment can deter
others from committing crimes

Read the text below which refers to deterrence. Pay attention to the information in
the text and try to realize the meaning of this concept.
Deterrence – Individual deterrence is aimed toward the specific offender. The aim
is to impose a sufficient penalty to discourage the offender from criminal behaviour.
General deterrence aims at society at large. By imposing a penalty on those who
commit offenses, other individuals are discouraged from committing those offenses.
Deterrence is
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6.9. Retribution

Retribution can be defined as deserved and severe punishment as in the

following examples
e.g. They fled because they feared retribution for the genocide.
e.g. She was asked whether a civilian government should seek
retribution against military officers  involved in human rights abuses.
e.g. Many saw her death as divine retribution (= punishment
by God) for her crimes.

Give as many examples of retributions as you can taking into consideration

the next examples: practices of imposing fines, practices of imposing fines:
1. ____________________________
2. ____________________________
3. ____________________________
4. ____________________________
5. ____________________________

What is your opinion on retribution? Is it too harsh? Too rigid? Maybe,

popular?
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Read the text below and fill in the gaps with the following words:

submit if balance disadvantage

granted improper surrender

Retribution– Criminals ought to be punished in some way. This is the most

widely seen goal. Criminals have taken (1) ______________ advantage, or
inflicted unfair detriment, upon others and consequently, the criminal law
will put criminals at some unpleasant (2) ______________ to balance the
scales. People (3) ______________ to the law to receive the right not to
be murdered and (4) ______________ people contravene these laws, they
(5) ______________ the rights (6) ______________ to them by the
law. Thus, one who murders may be executed. A related theory includes the
idea of righting the (7) ______________.

6.10. Rehabilitation

A common prison policy in America up until the 1970s, rehabilitation

focuses on helping criminals and prisoners overcome the barriers that led
them to committing criminal acts. This includes developing occupational
skills, as well as resolving psychological issues such as drug addiction and
aggression, explains the American Psychological Association (APA).
Considered the opposite of retribution, the ultimate purpose of rehabilitation
is to transition offenders back into society. The APA reports that in
examining massive data, individualized approaches to crime, complemented
with community-based approaches, can prove effective in reducing offender
recidivism.
(https://online.pointpark.edu/criminal-justice/types-of-criminal-
punishment/)

Define in your own words the concept of rehabilitation

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Here are some expressions which refer and belong to the field of Law. Read
them and try to deduce their meaning, then make up sentences of your own:

to abide by its rules = (meaning) ____________________________

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to seize money or property = (meaning) _________________________
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to balance the scales = (meaning) _____________________________
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to submit to the law = (meaning) ____________________________
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6.10.1 Objectives of the criminal law

Read the following text which refers to the objectives of the criminal law. As you
read the text, pay attention to the underlined words (spelling, context of use) because
the text is followed by a lexical activity which necessitates the knowledge of this
information.
Criminal law is distinctive for the uniquely serious potential consequences or
sanctions for failure to abide by its rules. Every crime is composed of criminal
elements. Capital punishment may be imposed in some jurisdictions for the most
serious crimes. Physical or corporal punishment may be imposed such as whipping
or caning, although these punishments are prohibited in much of the world.
Individuals may be incarcerated in prison or jail in a variety of conditions
depending on the jurisdiction. Confinement may be solitary. Length of
incarceration may vary from a day to life. Government supervision may be imposed,
including house arrest, and convicts may be required to conform to particularized
guidelines as part of a probation regimen. Fines also may be imposed, seizing
money or property from a person convicted of a crime.

6.10.2. Criminal word derivation

Derive the new words from the ones that are given to you. The words are extracted
from the text you have just read.
a. Punishment ―› ____________________
(noun) (verb)
b. Whipping ―› ____________________
(noun) (verb)
c. Caning ―› ____________________
(noun) (verb)
d. Prohibited ―› ____________________
(past participle) (noun)
e. Incarcerated ―› ____________________
(past participle) (noun)
f. Confinement ―› ____________________
(noun) (verb)
g. Probation ―› ____________________
(noun) (verb)
h. Fines ―› ____________________
 (noun) (verb)

6.11. Restoration
A radically different approach to criminal punishment, the goal of
restoration is for the offender to make direct amends to both the victim and
the community in which the crime was committed. Although a relatively new
practice in modern times, the concept of restorative justice can be found in
the early legal systems of Western Europe, ancient Hebrew justice and pre-
colonial African societies.
During the process of restoration, victims initiate a process in which both
they and the offender meet to share feelings and concerns. The dialogue
offers victims the opportunity to be heard and the offender to make amends
and receive forgiveness. Restorative justice is often used in crimes involving
youth offenders.
(https://online.pointpark.edu/criminal-justice/types-of-criminal-punishment/)

6.12. Actus Reus

Read the following article which deals with the legal concept ‘actus reus’
and decide whether the following sentences are true (T) or false (F):

Actus reus is Latin for ‘guilty act’ and is the physical element of
committing a crime. It may be accomplished by an action, by threat of
action, or exceptionally, by an omission to act, which is a legal duty to act.
For example, the act of someone striking someone else might suffice, or a
parent's failure to give food to a young child also may provide the actus
reus for a crime.

Where the actus reus is a failure to act, there must be a duty of care. A
duty can arise through contract, a voluntary undertaking, a blood relation
with whom one lives, and occasionally through one's official position. Duty
also can arise from one's own creation of a dangerous situation. On the
other hand, it was held in the U.K. that switching off the life support of
someone in a persistent vegetative state is an omission to act and not
criminal. Since discontinuation of power is not a voluntary act, not grossly
negligent, and is in the patient's best interests, no crime takes place. In
this case it was held that since a PVS patient could not give or withhold
consent to medical treatment, it was for the doctors to decide whether
treatment was in the patient's best interest. It was reasonable for them to
conclude that treatment was not in the patient's best interest, and should
therefore be stopped, when there was no prospect of improvement. It was
never lawful to take active steps to cause or accelerate death, although in
certain circumstances it was lawful to withhold life sustaining treatment,
including feeding, without which the patient would die.

An actus reus may be nullified by an absence of causation. For example, a

crime involves harm to a person, the person's action must be the cause of
the harm. If more than one cause exists (e.g. harm comes at the hands of
more than one culprit) the act must have "more than a slight or trifling
link" to the harm.

a. Not giving food to a child is not considered an actus reus

_______
b. Actus reus may also be defined as a failure to act _______
c. Doctors can decide when to stop the treatment of PVS patients
_______
d. Actus Reus may not be nullified _______
e. Causation is vital in an actus reus _______
f. Discontinuation of power may not be an actus reus _______

6.13 Mens Rea

Read the following article which deals with the legal concept ‘mens rea’
and answer the questions at the end:

Mens rea is another Latin phrase, meaning ‘guilty mind’. This is the
mental element of the crime. A guilty mind means an intention to commit
some wrongful act. Intention under criminal law is separate from a
person's motive.
A lower threshold of mens rea is satisfied when a defendant recognizes
that an act is dangerous but decides to commit it anyway. It is the mental
state of mind of the person at the time the actus reus was committed. For
instance, if someone tears a gas meter from a wall to get the money inside,
and knows this will let flammable gas escape into a neighbor’s house, he
could be liable for poisoning. Courts often consider whether the actor did
recognize the danger, or alternatively ought to have recognized a risk. Of
course, a requirement only that one ought to have recognized a danger
(though he did not) is tantamount to erasing intent as a requirement. In
this way, the importance of mens rea has been reduced in some areas of
the criminal law but is obviously still an important part in the criminal
system.
Wrongfulness of intent also may vary the seriousness of an offense and
possibly reduce the punishment but this is not always the case. A killing
committed with specific intent to kill or with conscious recognition that
death or serious bodily harm will result, would be murder, whereas a
killing effected by reckless acts lacking such a consciousness could be
manslaughter. On the other hand, it matters not who is actually harmed
through a defendant's actions. The doctrine of transferred malice means,
for instance, that if a man intends to strike a person with his belt, but the
belt bounces off and hits another, mens rea is transferred from the
intended target to the person who actually was struck.

a. What is the difference between intention and motives in the

Criminal Law?
 b. What is the prerequisite of mens rea?
c. Why has mens rea been reduced in some areas of the Criminal
Law?
d. What is the difference between murder and manslaughter?
e. What is the explanation of ‘transferred malice’?

Match the words on the left to their definitions on the right:

a. Defendant 1. A peak moment in a negative action

b. Liable for 2. Not caring or worrying about the
possible bad or dangerous results of
your actions
c. Tantamount 3. The person in a court of law who has
been accused of doing something
illegal
d. Reckless 4. The crime of killing someone illegally
but not deliberately
e. Manslaughter 5. The person who is guilty of a crime
or doing something wrong
f. Culprit 6. Likely to be legally punished or
forced to do something by law

a. ___, b. ___, c. ___, d. ___, e. ___, f. ___

6.14. Murder vs. Manslaughter

Read the text below which clarifies the difference between murder and
manslaughter and express the idea in your own words in the lines
underneath:

A murder, defined broadly, is an unlawful killing. Unlawful killing is

probably the act most frequently targeted by the criminal law. In many
jurisdictions, the crime of murder is divided into various gradations of
severity, e.g., murder in the first degree, based on intent. Malice is a required
element of murder. Manslaughter is a lesser variety of killing committed in
the absence of malice, brought about by reasonable provocation, or
diminished capacity. Involuntary manslaughter, where it is recognized, is a
killing that lacks all but the most attenuated guilty intent, recklessness.
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6.15. Summary

Offences may be of several types. Categorize the offences underneath (assault,

criminal damage, fraud, rape, accomplice, criminal trespass, theft, (battery,
aid and abet, robbery, extortion, sexual abuse, dacoity, burglary, inchoate
offences, fraud) under the headings:

Personal offences Property offences Participatory offences

6.16. Course Assessment (2)

Choose the best answer from the options A, B, C, D.

Scotland is often said to use the civil law system, but it has a unique system that
combines elements of an uncodified civil law (1) ……………….. to the Corpus
Juris Civilis with an element of its own common law long (2) ……………….. the
Treaty of Union with England in 1707. Historically, Scots common law (3)
……………….. in that the use of precedent was (4) ……………….. to the courts'
seeking to discover the principle that justifies a law rather than searching for an
example as a precedent, and principles of natural justice and fairness have always
(5) ……………….. a role in Scots Law. From the 19th century, the Scottish
approach to precedent developed (6) ……………….. a stare decisis akin to that
already established in England thereby (7) ……………….. a narrower, more
modern approach to the application of case law in subsequent instances. This is
not (8) ……………….. that the substantive rules of the common laws of both
countries are the same (9) ……………….. in many (10) ……………….. they are
very similar.

1. A. going back B. dating back C. outdating D. delaying

2. A. predating B. lasting C. updating D. before

3. A. got B. resembled C. different D. seemed

4. A. object B. subject C. subjected D. subjectless

5. A. caught B. given C. taken D. played

6. A. into B. in C. to D. at

7. A. demonstrating B. showing C. reflecting D. evidencing

8. A. to ask B. to say C. to wonder D. to deny

9. A. in spite of B. despite C. nevertheless D. although

 10. A. issues B. problems C. matters D. directions

Key: 1. B, 2. A, 3. C, 4. B, 5. D, 6. A, 7. C, 8. B, 9. D, 10. C

6.16. End of the unit test

Legal burden of proof

The burden of proof (Latin: onus probandi) is the duty of a party in a trial to
produce the evidence that will shift the conclusion away from the default position
to that party's own position. The burden of proof is often associated with the
Latin maxim semper necessitas probandi incumbitei qui agit (the necessity of
proof always lies with the person who lays charges). The party that does not carry
the burden of proof carries the benefit of assumption, an example of which in a
criminal case context would be the presumption of innocence. This party needs
no evidence to support its claim. Fulfilling the burden of proof effectively
captures the benefit of assumption, passing the burden of proof off to another
party. Once the burden has been entirely discharged to the satisfaction of the trier
of fact, the party carrying the burden will succeed in its claim. For example, the
presumption of innocence in a criminal case places a legal burden upon the
prosecution to prove all elements of the offense (generally beyond a reasonable
doubt), and to disprove all the defences except for affirmative defences in which
the proof of non-existence of all affirmative defence(s) is not constitutionally
required of the prosecution. Burden of proof refers most generally to the
obligation of a party to prove its allegations at trial. In a civil case, the plaintiff
sets forth its allegations in a complaint, petition or other pleading. The defendant
is then required to file a responsive pleading denying some or all of the
allegations and setting forth any affirmative facts in defence. Each party has the
burden of proof of its allegations.

The plural of proof is a. proofs b. proves

Give a synonym for proof ________________
‘To lay charges’ means ________________
‘Prosecution’ refers to a. persecuţie b. procuratură
‘Plaintiff’ is the person who a. accuses b. is accused
‘Allegations’ refer to a. presuppositions b. suspicions
‘To set forth’ means a. to begin b. to present
‘lies’ a. to b. with
‘except’ a. to b. for
‘refers’ a. at b. to
Presumption (noun) → _________________________ (verb)
Effectively (adverb) → _________________________ (noun)
Reasonable (adjective) → _______________________ (noun)