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Criminal Law
Southern Illinois University School of Law
Behan, Christopher W.

Criminal Law Behan Fall 2017
Utilitarian: Do the most good for the most people at the lowest cost
General Deterrence
Individual Deterrence
Risk Management
Ankle bracelets
Retribution: We owe a moral obligation to punish people for breaking the social contract
Just deserts: moral desert of an offender is sufficient reason to punish for an offense→ punishment even though there is no benefit to society
Positive retribution: an offender must be punished to the full extent of moral blameworthiness, even if no utilitarian benefit comes from it
Negative retribution: punishment only if he commits a crime, only in proportion to the crime, only if there is a utilitarian benefit
***Most modern punish is a hybrid of positive and negative retribution
Dudley v. Stephens: general deterrence
Indeterminate Sentencing***
Guideline for judge to determine sentencing with options available
Advantages: uniformity
Disadvantages: Prosecutors manipulate the system
I.e. cocaine vs. mixed crack-cocaine
Determinate Sentencing***
Judge has more discretion/Range (statutory limitations, etc.)
Advantages: no uniformity
Advantage AND disadvantage is the judicial discretion
Du case- killed girl got 6 months’ probation instead of 11 years
Other Forms of Punishment
U.S. v. Gemmetra: Sandwich board case.  Court made a distinction: humiliation and shaming as a byproduct is permissible as long as it’s not the main deterrent
Individual AND general deterrence
Shaming is a form of retribution
Bentham's rules: Legislature uses to build laws****
Costs to criminal must outweigh profit of criminal act
The higher the offense, the higher the punishment
Provide motive not to commit crime
Punish no more than necessary to accomplish purpose
We do not chop off a hand for stealing–no rehabilitation
Hanging for pick pocketing–pick pocketed while at hanging–not deterrence
8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment
Proportionality is not physically written into the amendment; the court had to interpret proportionality and apply it under the 8th amendment.
Coker v. Georgia: death penalty for rape
Punishment is excessive and unconstitutional if: (1) makes no measurable contribution to acceptable goals of punishment, (utilitarian) or
 (2) is grossly out of proportion to the severity of the crime (retribution)
Ewing v. California: Recidivist stealer golf clubs for $1200.  California “Three Strikes Rule”—mandatory 25 years without parole.  This was upheld by supreme court (because not life).
Distinction: 25 years is a set time limit (as opposed to life in prison without parole)
Solem: court examined three factors that may be relevant to determination of proportionality (for 8th amendment):
(1) the gravity of the offense and the harshness of penalty,
(2) the sentences imposed on other criminals in the same jurisdiction; and
(3) the sentences imposed for commission for the same crime in other jurisdictions
***Legislatures have right to choose the penological theory (Bentham) they will apply (California’s recidivism law enhances public safety against

le, legislative history, earlier statues on same subject, previous interpretations
In para materia: comparison to §1512…Why refer to “other object” if “tangible object” already covers it?–Huge overlaps
Context: noscitur a sociis–a word is known by the company it keeps
Ejusdem generis: where general words follow specific words, the specific controls the general
Courts want to ensure the legality principle is followed—courts have to play referee role to make up for bad statutes
Courts have been careful not to expand meaning
Keeler: Humans being as understood @ time of legislation
Banks: not overbroad
Yates v. United States: Undersized red grouper. 8 U.S.C § 1519: tangible object.  Looks to the context, placement in statute, intent, etc.  Determines the intent of the legislature was not for fish, but for fraud. 
Process of statutory interpretation, how do you determine whether or not a statute is ambiguous in the first place?
To find Lenity: when looking at criminal statute
What is Actus Reus (volitional or not)
What is Mens rea?
Desertrain: vagueness and overbroad.  CA Municipal code making it an offense to use a vehicle as living quarters.  SC deemed unconstitutional because the vagueness and overbroad.  It has an arbitrary and discriminatory interpretation.