However, because crime and punishment are inconsistent with happiness, they should be kept to a minimum. Only as much punishment required to prevent future crimes should be inflicted when punishment becomes necessary. Because punishment has an effect on both society and the offender, the total good produced by the punishment should exceed the total evil arising from it. Deterrence can
Communities are also by crime and should be considered as secondary victims. Restorative justice thus has three hallmarks; encounters between victims and offenders, the obligation to repair harm and the expectation that transformation may take place. 1 1 Restorative versus retributive justice A distinction must be made between Retributive justice and Restorative justice. Retributive justice is where the offender is prosecuted and brought to court in order to be found guilty and pay for what they did. Central focus is the offender getting what they deserve.
The defendant may be criminally liable for omitting to act provided that the crime is one which may be committed by omission and the defendant is in breach of some legal duty to act. It is generally believed by some theorists that omission liability plays an insignificant role in the criminal law and there are others who suggest that the scope of omission liability should be widened to include a wide range of conduct that are subject to criminal sanctions. Also, there is concerns that how should such liability be constructed, for example, would it unfairly penalized an innocent passer-by? The modern legal system tends to adopt the concept of ‘duty to act’, whereby it is an offence if a person who has a duty to act failed to act in a required state. One can debate whether (and to what degree) duties of compassion and solidarity exist between citizens, and whether the state should punish their violation.
At times criminal intent is used in the sense of mens rea-the mental element requisite for guilt of the offense charged. Knowledge; the law can presume knowledge of facts under the doctrine of notice where a person would have known if he had made proper enquiries. Recklessness must be judged under two scenarios firstly was the risk taken unjustifiable, secondly it may sometimes be seen to be justifiable on the basis of social utility, circumstances must be taken into consideration. The question is as to whether the recklessness in question shall be judged subjectively or objectively. Subjective recklessness involves the conscious taking of an unjustifiable risk.
In the case of the death penalty, it has the added bonus in guaranteeing that the person would not offend again. Supporters of harsh punishments argue that the would-be criminal would consider the costs versus the benefits of committing a crime. If the costs outweigh the benefits, then it is assumed that he would stop what he is doing, effectively ‘deterred’. Furthermore, the usage of harsh punishments to effectively deter crime is ethically justified as it prevents more people from falling victim to crime. However it is extremely difficult to judge a punishment’s effectiveness based on its deterrence effect, consequently we must consider other variables that would entail a person to commit a crime.
Retributive theories of justice argue that punishment should be imposed for the crimes committed and the severity of the punishment should be proportionate to the seriousness of the crime. More than often, retributive punishment is confused with ideas of vengeance. It is generally argued that in case of retributive punishment, no limit can be set for revenge which thereby makes such revenge personal whereas the person administering such punishment may well have no personal connection with the victim. An affordable alternative to the retributive justice system is the restorative justice practices which can be considered unique in its emphasis on not just one component of the criminal justice system such as punishment, but as incorporating victims,
It might be biased to the prosecution party. Plea bargaining might allow prosecutors to take full advantage of accepting criminal acts in the weakest trials. The more beneficial will be a guilty claim for the prosecution is if the trial ends in
Crime has been defined in general as an act or omission that has been forbidden by law and is usually associated with a sanction. John Stuart Mill, in his Harm Principle stated that an act should be criminalised based on the harm it has inflicted on other people. The State is justified in criminalising acts that crates unjustifiable and serious risks to others. A victimless crime is when a particular act does not have any victim or when the only person who is affected is the person committing it or when the person who will be classified as a victim has consented to such an act. As there is no clear victim in this case the principle of harm will not be applicable here and would not be considered as an act that can be criminalised.
The consequential damages are projected to compensate the injured party. The affected person protected from indirect damages apart from contractual loss (Helewitz, 2010). Punitive damages. Are aimed to punish the party that breaches the contract and also bar it from future violations. This type of the damage is rarely stipulated in most contract cases but may be in near fraud or tort cases.
Where the accused has an option of admitting guilt and settling for a lesser punishment is called sentence bargaining. Negotiation which involves an admission to certain facts in return for agreement not to introduce certain other facts is fact bargaining. Plea Bargaining concept is time saving, provides compensation to victims, benefits the accused, but on contrary, it is unfair, contempt for system, lead to coercion, derailment of trial, might cause conviction of innocents and If the plead guilty application of the accused in rejected then the accused would face great hardship to prove himself