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Criminal Law
UMKC School of Law
O'Brien, Sean D.

Criminal Law – Outline
Sources of Criminal Law
No uniform body of criminal law.
Common Law: judge-made criminal law, developed by British judges.
State Statutory Law: subject to const. limitation, states are free to define their own criminal offenses, defenses, and punishments.
Majority Law: law used by a majority of modern jurisdictions.
Model Penal Code: ALI draft of penal; adopted by some juris., but not entirely.
Case Law
Legislative Intent
§         Text
§         Legislative history
§         Purposes
§         Case law
Jeremy Bentham & John Stuart Mill focuses on the future consequences of criminal punishment à justified if it does better than alternatives in producing future happiness or utility; forward looking
4 potential benefits of Utilitarian criminal punishment:
specific deterrence: deterrence from committing future criminal acts
general deterrence: deterring others from committing the act
incapacitation: imprisonment/death, removing the offender from society
rehabilitation: reforming the offender to not commit future offenses.
A utilitarian will look at the benefits and costs v. alternative punishments or rules (death penalty v. life imprisonment)
Immanual Kant views the purposes of criminal punishment in terms of independent of future consequences à backward looking; what punishment does the criminal act deserve? 
Basic Principles of a Retributivist view of criminal punishment:
Proportionate to the gravity of the wrong
Gravity of wrong turns on (1) the degree the offender infringed upon the rational autonomy of another (2) degree to which the offender is responsible for infringing on another’s autonomy (3) offender’s general character
The Queen v. Dudley & Stephens(4 men stranded in lifeboat w/ no food or water (one of them Parker), weakened by famine after storm crashed their vessel 1600 miles from land. two men wanted to kill the weak boy and survive off him; one man did not want to do this; did not draw lots and proceeded w/ killing Dudley and Stephens killed the boy by stabbing his neck w/ a knife then the remaining survivors nourished themselves with his flesh and blood until they were rescued.) 
§         Guilty of murder or necessity killing?
§         Charge: Murder = intentional killing
§         Defense: Necessity        
§         Jury’s “verdict”: they could not decide a judgment on the facts; revised statement of facts from trial judge to be in favor of defendants
§         Holding: No defense of necessity under English law; guilty of murder
§         Sentence: 6 mos previously served (crown commuted sentence to time served)
o        Common law decision of the judge
§         W/o statute, how is ct to decide?
o        Analogy: is this killing like other permissible intentional killings (war, self defense, death penalty)?
o       Objectives of criminal punishment
In re A: Conjoined Twi

t cases the victim is already dead when the body is used. It is arguable that a person’s corpse still has rights. The “means” is the intentional shortening of an innocent victim’s life. 
§         Law on Necessity Defense
1.      Overwhelming bulk of jurisd: Necessity may be defense to offenses other than homicide
2.      A few statutes make defense inapplicable to intentional murder or homicide
3.      Defense requires reasonable belief that offense is necessary to prevent some harm society regards as greater     
Retributivist View of war on drugs: 
Argument in favor of legalization: (1) Personal autonomy to make your own decisions à libertarian presumption. (2) punishment proportionate to the crime.
Argument against legalization: Harm to others: conflict between one person’s right to make decisions against another’s same right. 
Justified Parternalism: drug laws are paternalistic because they don’t allow people to make their own decisions, but a Kantian would respect their paternalism when it is done because the person is not aware of the consequences of his actions and would eventually recognize the choice is wrong. 
Utilitarian View of War on Drugs: