LAU44038 CRIME AND PUNISHMENT

Learning Outcomes

Having successfully completed this module, students should be able to:

• Demonstrate specialised, self-directed knowledge of an area of law through examination of a ‘real-life’ legal research problem or a theme within a research group.
• Collaborate with peers and act in leadership roles.
• Constructively evaluate the work of others.
• Synthesise and evaluate a variety of legal research methods, legal sources, findings and analysis.
• Critically analyse an area of law through independent research.
• Consult with and respond to the needs of research users.
• Effectively communicate research findings.

Module Content

For some theorists, the existence of the criminal law depends on the proposition that he who does wrong should face some form of retribution. Historically, differing ideas around what exactly that retribution should entail have ebbed and flowed in their respective popularity. From mass incarceration in the United States in the interests of winning the “war on crime,” the use of capital punishment in jurisdictions like Iran or Saudi Arabia, to the themes of proportionality and individual justice inherent in Irish sentencing practices, each jurisdiction approaches the question of “how, and why do we punish” in its own, nuanced way.

In this Capstone, students will be encouraged to engage with this question (broadly construed), in a way that interests them. Projects therefore have the potential to range from case studies on the use of particular forms of punishment in specific jurisdictions, to more theoretical justifications for particular sentencing models and, by extension, the criminal law itself.

Although by its nature the completion of a Capstone requires students to conduct individualised research, the workshops throughout the year will enable students to come together and identify common themes within their work. This will provide students with the opportunity to think about the criminal law and its treatment of offenders more generally. It is hoped that this process will catalyse an enhanced understanding of the criminal law from not only a doctrinal, but sociological perspective.

Potential questions include, but are certainly not limited to:

• Where does the law’s authority to punish derive from? Are there some “crimes” which instinctively ought to be none of the law’s business?
• Why is the law reluctant to punish merely “moral” crimes?
• Why prison? Is there any other way to punish offenders?
• What is the purpose of prison? Is it to rehabilitate, or is it something else? Ought it be something else?
• What impacts a judges’ decision to impose a custodial sentence? Is it the law? Is it their own discretion? Is it what they had for breakfast that morning?
• What role, if any, do juries have in the determination of an offender’s punishment? Should they have a role? Should they be involved in the criminal process at all? If so, why?
• Do individual judges have too much choice in this jurisdiction, or any, when it comes to the determination of a criminal punishment?
• Ought offenders from differing sociological backgrounds be treated differently? Should an offender's potential to reoffend be taken into account when determining their sentence?
• Are there instances of factors outside the offenders’ control, such as media coverage or public disquiet, influencing an eventual punishment?
• Why do we punish more severely for some crimes rather than others? Are there some crimes which ought to be punished more severely?
• Should restorative justice be favoured over retributive justice?
• How is prison, or criminal punishment justified, or used, in a particular jurisdiction?
• What does a piece of popular media (a book, film, play etc) have to say about our criminal justice system?

Suggested Reading

• R.A Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford, Hart Publishing, 2007).
• John Gardner, “Relations of Responsibility” in Cruft, Kramer and Reiff (eds) Crime, Punishment and Responsibility: The Jurisprudence of Anthony Duff (2011).
• G.A Cohen, “Casting the First Stone: Who Can and Who Can’t, Condemn the Terrorists?” (2006) 58 Royal Institute of Philosophy Supplements 113.
• D.L Bazelon, “The Morality of the Criminal Law: Rights of the Accused” (1973) 72 Journal of Law and Criminology 4.
• R.A Duff, “Responsibility, Citizenship and Criminal Law” in Duff and Green (eds), Crime, Punishment and Responsibility: The Jurisprudence of Anthony Duff (Oxford University Press, 2011) 125-148.
• T.M Scanlon, Moral Dimensions: Meaning, Permissibility, Blame (Harvard University Press 2008) Chapter Four.
• G.Lamond, “What is a Crime?” (2007) 27(4) Oxford Journal of Legal Studies 609.
• T. O’Malley, Sentencing Law and Practice (3rd edn, Round Hall, 2016) Chapter One.
• A. Ashworth, Sentencing and Criminal Justice, (6th edn, Cambridge University Press, 2015).
• N. Maguire, “When is Prison a Last Resort? Definitional Problems and Judicial Interpretations” (2014) 24(3) Irish Criminal Law Journal 1 – 21.
• I.Marder, “Mapping Restorative Justice and Restorative Practices in Criminal Justice in the Republic of Ireland” (2022) 70 International Journal of Law, Crime and Justice.
• H.Zehr, The Little Book of Restorative Justice (Good Books, 2022).
• I.O’Donnell, “A Comment on Sentencing” (2000) 10(4) Irish Criminal Law Journal 2.
• O.Eren, N.Mocan, “Emotional Judges and Unlucky Juveniles” (2018) 10 American Economic Journal: Applied Economics 3.
• C. Sunstein, “Governing by Algorithm? No Noise and Potentially Less Bias” (2022) 71 Duke Law Journal 1.
• E. Volokh, “Chief Justice Robots” (2019) 68 Duke Law Journal 1.
• J.Purshouse and L.Campbell, “Automated Facial Recognition and Policing: A Bridge Too Far?” (2022) 42 Legal Studies 2.
• D. Jakub, J. Pina-Sanchez, “Does the Weather Influence Sentencing? Empirical Evidence from Czech Data” (2019) 56 International Journal of Law, Crime and Justice, 1-12.
• J. Rooney, “Judges, Education and Class in Ireland” (2023) 7(3) Irish Judicial Studies Journal.
• K.Himma, “Judicial Discretion and the Concept of Law” (1999) 19(1) Oxford Journal of Legal Studies 71-82.
• J.Tasioulas, “The Paradox of Equity” (1996) 55(3) Cambridge Law Journal.

Assessment Details

• Individual Project: 85%
• Group Presentation: 15%
• Reflective Journal: Pass/Fail
• Participation: Pass/Fail