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Criminal Law
Temple University School of Law
Strazzella, James A.

Strazzella CRIMINAL LAW OUTLINE Fall 2011
I.                  Justifications of Punishment – Why Punish?
a.     Retribution
                                                  i.      Three Assertions:
1.      Offender voluntarily committed a crime.
a.       Punish because offender deserves it; has committed a crime.
2.      Severity of punishment must be proportionate to wickedness of the offense.
a.       Principle of Equality
                                                                                                                          i.      Evil committed to another should be regarded as perpetrated on oneself; e.g., one who commits murder must die.
3.      Punishment for crime is itself just or morally good.
a.        “It is better that one man should die than that the whole people should perish.”
b.      Society has a duty to punish.
                                                ii.      Arguments Against:
1.      Two evils of moral wickedness and suffering do not make a right.
2.      Abandons any serious attempt to provide moral justification for punishment,
3.      Confuses principle of punishment with those of compensation to the victim.
4.      It assumes a community of shared values and rules and the man who disobeys must be punished because as a rational man, sees that the rules benefit everyone and must be obeyed.
a.       Most criminals are not rational in this sense. Most are alienated from the prevailing socio-economic structure and see no need for “paying a debt to society”.
b.      Focuses on the advantage the criminal might have gained, instead of the wrongness of his act and the harm that he has done or tried to do.
                                              iii.      Arguments For:
1.      Punishing restores the equilibrium of benefits and burdens.
a.       Society takes on self-restraint by adhering to rules. The one who violates the rules gains an advantage over others and causes an unfair distribution of benefits and burdens.
                                              iv.      Variations:
1.      Vengeance
a.       It is morally right to hate criminals; criminal law sentences express this.
b.      Rhode Island nightclub fire. “4 years for 100 people”.
c.       Victim Impact Statements
                                                                                                                          i.      Booth v. Maryland (1987); Eighth Amendment allows for death penalty when defendant’s actions are sufficiently blameworthy. These statements do not bear on defendant’s blameworthiness because he is unaware of victim characteristics
                                                                                                                        ii.      Payne v. Tennessee (1991); overturned Booth, saying that it deprives State of full moral force of its evidence and may prevent the jury from having before it all information necessary to determine the proper punishment.
d.      Punishment is based on the amount of resentment and outrage generated by the crime.
2.      Social Functions
a.       Crime must be voluntary.
b.      Punishment must be proportionate to wickedness of offense.
                                                                                                                          i.      Why? It is a sign that the sentiments of the collectivity are unchanged, that the communion of minds sharing the same beliefs remains absolute, and thus the injury that the crime has inflicted on society is made good.
c.       Public expression of condemnation is in itself valuable because it results in:
                                                                                                                          i.      Voluntary reform by offender & recognition of the wrong.
3.      Mixed Theory
a.       Whether offender should be punished depends on what effect punishment will have on offender or on the fabric of law and morality in general.
                                                                                                                          i.      Amount or severity of punishment
b.     Deterrence
                                                  i.      Economic Approach
1.      Everyone consciously or subconsciously calculates costs and benefits, even in the context of “crimes of passion”.
                                                ii.      The Rational-Actor Model
1.      Do Criminals Calculate?
a.       Three Assumptions for Deterrence to Work (but are usually not met):
                                                                                                                          i.      Potential offender must know of the rule.
                                                                                                                        ii.      He must perceive the cost of violation as greater than the perceived benefit
                                                                                                                      iii.      He must be able and willing to bring such knowledge to bear on his conduct decision at the time of the offense.
b.      Certain criminals cannot calculate because their situations are a series of defaults, not choice.
2.      How do rational actors respond to the threat of punishment?
a.       The higher the level of punishment, the more likely a rational actor would be deterred, but consider “three strikes and you’re out” rule.
                                                                                                                          i.      If offender knows that the third offense will warrant most severe punishment, might be deterred, but also might make it very drastic.
                                                                                                                        ii.      If severe punishment raised an addict’s cost of buying drugs, he may commit more predatory crimes to finance his habit.
3.      Certainty v. Severity
a.       Increase risk of conviction (Certainty)

given death penalty if he is:
                                                                                                                          i.      Habitual, homicidal tendencies, savage nature, inhuman brutality.
4.      Deterrence
a.       Death penalty works as a deterrent when murder is deliberately planned from a sordid motive or where the likelihood of its occurring is callously ignored by those who commit some other crime which may well give rise to it.
b.      Death penalty may not work as a deterrent against those who murder out of passion, or because of a mind weakened by social entanglements.
f.       Regina v. Dudley & Stephens
                                                  i.      Court rejects necessity argument, which is based on the “custom of the sea”, and gives death penalty.
1.      Seems like deterrence, to future sailors who would want to repeat this crime. But if they’d rather possibly die later from death penalty, or die now on the boat for sure, deterrence would most likely not work.
2.      Retribution would also work; fulfills the three elements.
II.               Criminal Conduct – Elements of Just Punishment: Culpability
a.     Actus Reus – Culpable Conduct
                                                  i.      Model Penal Code §2.01(1)
1.      A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
                                                ii.      The Requirement of Voluntary Action
1.      Martin v. State
a.       Police bring drunk man onto highway
b.      Court read in “voluntary” into the statute.
c.       “Involuntarily and forcibly carried” does not result in culpability.
d.      An act must be voluntary to be a crime
2.      People v. Newton
a.       Man kills police officer when unconscious
b.      An act is not voluntary if it is done while unconscious.
                                                                                                                          i.      Therefore the act cannot be criminal, even if when committed by a conscious person, would be a crime.
3.      Rationale of voluntary act requirement
a.       A civilized society does not punish for thoughts alone.
b.      Involuntary actions that harm others may present a public health or safety problem, but do not present a problem of correction.