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Criminal Law
Temple University School of Law
Deguzman, Margaret M.

DeGuzman Criminal law Outline Fall 2012

I. Theoretical Underpinnings

B. What is a Crime

C. Principles of Punishment

1. Theories of Punishment

a. 1. In General

I. Why (and whether) social institution of punishment is warranted?

II. Necessary conditions for criminal liability and punishment in particular cases?

III. Form and severity of punishment that is appropriate for particular offenses and offenders?

IV. Punishment requires justification

i. Punishment in some cases practical necessity for any system in which threat f punishment is to be taken seriously: to that extent the justification of punishment is inseparable from the justification of threats of punishment

ii. Retributive

iii. Utilitarian

1. Two dominant approaches of justification of punishment

b. 2. Utilitarian Justifications

I. Punishment is evil, and there should be punishment if punishment will avoid some greater evil.

i. Locking up a murder is mischief and bad, but it prevents the greater evil of said murderer killing again

II. Catalog of Beneficial consequences of punishment

i. 1. General Deterrence

1. Knowledge that punishment will follow crime deters people from committing crime

2. Seeing people punished for behavior creates an implicit sense of association. Do this get punished therefore I will not do this.

ii. 2. Individual deterrence

1. A punishment for a crime is a calculable thing for an adult thus a reasoning person will learn from past mistakes

2. On that note, harsher crimes for repeat offenders so that the message sinks in

iii. 3. Incapacitation and other forms of risk management

1. When in prison you cannot commit crimes or kill people

iv. 4. Reform

1. Punishment reforms so that wish to commit crimes lessens

2. Incarceration may do it

3. But usually reform thought of in terms of active steps towards criminal reform

c. Notes and Questions

I. Likely hood of getting caught actually reduces more crime than longer sentence

i. 5% chance of getting caught 5 year term or 95% chance of getting caught 1 year term

II. Rehabilitation though rarely used could prove effective

i. One study pointed out that reform efforts could lead to reduction of recidivism by max 25%

III. Kant’s objection

i. One man should never be dealt with as “a means subservient to the purposes of another.”

d. 3. Retributive Justifications

I. The moral desert of an offender is the sufficient reason to punish him or her.

i. The moral desert becomes only a necessary condition

II. We are justified in punishing because and only because offenders deserve it.

III. Moral culpability of the offender gives society the duty to punish offender.

i. Society has a duty to punish offender

ii. Person should be punished regardless if his punishment serves some other purpose like preventing crime,

IV. Kant

i. For if justice and righteousness perish, human life would no longer have any value in the world

ii. Idea of the violation of “justice”

1. We are owed what our deeds have sowed.

2. Punishment should be imposed for the sole reason individual has committed a crime

V. Positive v. Negative Retributivism

i. Positive- moral desert is sufficient, moral desert is justification enough for punishment (no utilitarian purpose needed)

ii. Negative- moral desert necessary, moral desert not sufficient we need something more

2. Penal Theories in Action

a. Who should be Punished and How much? (48-62)

I. THE QUEEN v. DUDLEY AND STEPHENS Queen’s Bench 1884 (who should be punished, cannibalism)

II. Differences Utilitarian v. Retributive

i. Utilitarian: forward looking. Care of past only to extent helps future. No punishment unless provides social benefit.

ii. Retributive: looks backward in time. Justifies punishment on moral desert

III. Utilitarian v. Retributive Justifications for Punishment



Should be punished

1. Deterrence

a. General (tells the public can’t do this)

b. Specific (stops the individual from doing it anymore, sends message)

c. (incapacitation)(puts in prison cannot do anymore bad)

d.(rehabilitation)(reform’s wrong doer)

1. Morally Culpable (desert)

a. Positive (desert is both sufficient and necessary)(even if no reduction in crime)

b. Negative (desert is necessary)

Should not be punished

1. No utility

a. wastes resources

b. choose lesser evil

c. Justified (did the right thing/ don’t punish)

1. Not morally culpable

2.Choose lesser evil

a. the insane are Excused (no desert)

(did the wrong thing/ don’t punish)

i. Expressive Theory

1. Punishment expresses society’s denouncement of something it

finds morally culpable. Expresses moral condemnation

IV. PEOPLE v. SUPERIOR COURT (Du) Cali. Co. App. 2nd 1992 (how much Punishment, Korean lady, Proportionality)

i. 7 objectives of sentencing a Defendent. (Page. 54)

1. Protect society (U)

2. Punish defendant (R)

3. Encourage Defendant to lead law-abiding life (U)

4. To deter others (U)

5. Isolate (U) and (R)

6. Secure restitution for victim (U)

7. Uniformity in sentencing (R)

ii. What would punishment accomplish in this case?

1. Utilitarian, Retributive, Expressive.

2. Mixed Theory Approach

a. Punishment’s purpose is utilitarian: to reduce crime and thus protect the rights of all to be secure in their persons and

I. Don’t know what we are allowed to do

II. Extremely discretionary for police to arrest, prosecutors too much discretion

III. Potential for unequal treatment

c. Too Specific

I. Not an exclusive list

II. If there is a list and something is not on it, legislature had reason for leaving it off

d. Reasonableness

I. If we (the class) can’t agree what’s reasonable then statue is not gonna guide jury well

II. Degrees of things is hard to figure out what is reasonable

e. Exemptions

f. Penalties

3. Statutory Interpretation

a. MUSCARELLO v. UNITED STATES Su. Co. US 1998 (definition of “carry”) (applying methods of statutory interpretation)

I. Majority’s interpretation

i. (b)(I)(i) congress used multiple dictionary meanings, bible, literature

ii. (b)(I)(iii) whether congress meant to use a particular definition

iii. (b)(I)(ii)(1)(b) congress used “carry” and “transport” we should exclude the idea

1. In a later statute they use both, meant they have different meaning

II. Dissent

i. Should use Rule of Lenity

1. Err on side of what’s good for defendant when there is reasonable disagreement

ii. Context

1. Look at words in other statutes or in this statute

iii. Purpose

1. Independent of text, look more broadly at purpose

b. Should be able to:

I. Critique a statute in terms of clarity

II. Explain some ways a court can interpret a statute



i. Meaning of the words ON THEIR FACE

1. Ordinary meanings, dictionary meanings

2. Are these words terms of art with special meaning

ii. Meaning from CONTEXT

1. What light does the context of the words shed on their meaning?

a. The rest of the provision that contains the words in issue;

b. The whole statute that contains the provision

c. Use of the words in related statutes;


1. What did the words mean to those who enacted the statute or developed the common law; other circumstances at time of enactment; the events that lead to the enactment of the statute; amendment history; etc.


i. 2 levels:

1. The SPECIFIC PURPOSE of the particular words, clauses, or provisions in issue; and

2. GENERAL PURPOSE of the statute as a whole