Two sailors, Dudley and Stephens, were indicted for murder of Parker on high seas. Defendants and victim were stranded for 20 days over 1,000 miles away from land, off the Cape of Good Hope. They had gone 8 days without eating. The two would “probably not have lived” if they did not eat the boy, and the boy “likely would not have lived” whether he ate or not. They decided against casting lots, and instead killed and ate the boy. Another sailor, Brooks, did not participate in the killing but did eat the boy. At trial, the jury gave a special verdict, finding that these were the facts and sending back to the judge the decision as to whether it was or was not murder.

Analysis
- The question is whether the facts set forth were or were not murder.
- Various definitions of murder imply exceptions for self-defense. Was this self-defense?
  - Not straight forward self-defense
    - It’s not like straight-forward self-defense, since it wasn’t the boy who was threatening them. You can’t kill a third party in self-defense.
    - There wasn’t sufficient certainty that the boy’s living would have caused their death. Moreover, it was possible that some of them would die, but the defendants’ decision made sure that the boy, rather than the others, would die.
  - No necessity excuse
    - In the ancient law, under Grotius and Puffendorf, in the case of extreme necessity, there was an exception for thievery. But in England, Lord Hale has rejected that exception. So it stands to reason that there should not be an exception for murder.
    - “To preserve one’s life is general speaking a duty, but it may be the plainest and highest duty to sacrifice it.”
- Court sentences the two to death; crown later commutes to 6 months in prison.
  - Cannibalism long accepted as a fact of life at sea.
Notes
- Necessity is difficult because the question of who gets to decide when there is necessity.
- Is there a deterrent effect? Probably not, because if folks are going to die, they’ll probably going to do it anyway. Although there may be important effects for society in terms of acknowledging and enforcing norms; creating order and moving away from Hobbsian state of nature.

Why Punish: 89-132

Two basic types:

Retributive: Backward-looking; punishment is justified because people deserve it

Positive retributivism: Society may and must punishment the blameworthy
- Immanuel Kant espoused positive retributivism. There didn’t have to be identity between crime and punishment (i.e. lex talionis eye for eye), but just equivalence, except in the case of murder. “Whoever has committed murder must die.”
- Victim impact statements
“Fair play”: Retributive theory that there are social rules prohibiting violence and deception and providing benefits for all involved. Assumption of burdens is what makes these benefits possible, and the burdens consist in self-restraint. Crime involves violating these rules, upsetting the balance of benefits and burdens by allowing one to shirk their burden. Punishment restores the balance by “extracting the debt.”
- Problems
  - For one, it is not just the balance of benefits and burdens that matters, but the total quantity of each. Punishment may restore the balance, but reduces the overall quantity. Equality of burdens may not be the proper goal.
  - Moreover, the idea of “debt repayment” is specious, because moral debts are paid forward, not paid back. The debt isn’t extracted or repaid to victims, it’s wiped out.
  - Most importantly, the criminals are supposed to pay back their debt for what? The idea of equal benefits and burdens and resultant debt to society only makes sense if you believe that people are actually receiving equal benefits – which clearly is not the case.
Social cohesion: this is the “expressive function” of punishment, idea that there is value in punishment as the authoritative expression of condemnation of moral wrongs. It’s sort of like utilitarianism, but with a broader view of the good achieved than in Bentham or other orthodox utilitarianism.
- Problem:
  - Neither crimes not punishments have coherent social meanings, and it is unclear why attempts to communicate those meanings should be considered good regardless of the consequences.
  - Communities are unified at deciding the relative seriousness of crimes, but not the absolute seriousness. They agree murder is worse than theft, but not what should be the sentence for each.
Negative retributivism: Moral guilt is necessary but not sufficient condition for punishment. Moral guilt sets an upper limit on how much punishment is appropriate.
- Predictive sentencing: factoring in the risk that someone might reoffend to sentencing decisions
  - Rhode Island nightclub fire: failed to obtain...

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The Sweep of Criminal Law in America: 1-7; The Basis for Punishment: 89-95

Why Punish: 89-132

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