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Criminal Law
UMKC School of Law
Berger, Mark

I. Goals of Punishment
a. Incapacitation (Restraint):
i. While imprisoned, a criminal has fewer opportunities to commit acts causing harm to society. (Raises issue of punishing for future crimes.)
b. Special Deterrence:
i. Punishment may deter the criminal from committing future crimes.
c. General Deterrence: see Bergman Case pg. 140
i. Punishment may deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment.
ii. Theory of Utilitarianism (Benthams’s): humans driven by seeking pleasure and avoiding pain; also to channel human desire for revenge and prevent vigilante activity.
1. Need equation where T (pleasure from crime) < P (pain) * C (Chance of being caught); principle of parsimony: too much punishment is wasteful
2. Problem: Different levels of pleasure, hard to determine optimal level of sanctioning (social calculus different), assumes rational actor (most debated); some studies show raising C more effective; less linear response to increase sentence; punish as means to end, can be unfair if law enforcement is bad; might rationalize prosecuting innocent person for deterrence, as long as government is not caught.
d. Retribution:
i. Punishment is imposed to vent society’s sense of outrage and need for revenge. Punishment is end itself, meant to carry blame and stigma, community condemnation; do not punish if not wrong or no choice was made.
1. Fact people deserve punishment is not only a good reason to punish, but creates duty for society to punish; not utilitarian at all
2. Problems: (1) Critique of agency or freedom; assume people choose and all equally free in society; left wing critique; bad because poor, not poor because bad; but hard to find proper upper limit for this critique (society must be equal before criminal justice system, can be applied fully equally) (2) costs of punishing all crimes too high for society (3) provides no yardstick as deterrence does; says nothing proper severity of punishment; will society tolerate what severe offenders deserve?
e. Rehabilitation
i. Imprisonment provides the opportunity to mold or reform the criminal into a person who, upon return to society, will conform her behavior to societal norms.
1. Problem: high c

in public space because his prenense on the public highway was not voluntary. He alleges that the police officers brought him out to the highway from his home. Cts says: “Appear” in law = voluntary act requirement.
b. Holding: Each element of the act must be voluntary. Best for deterrence.
c. Converse Rule: If the last act is voluntary, the crime is considered voluntary. (would convict Martin because chose to manifest drunkenness)
2. People v. Decina
a. Defendant occurred epileptic attacks and other disorders, knowing this he got drove a vehicle and had a seizure and ran off the road killing 4 people
b. Holding: If there is a voluntary act that makes involuntary action foreseeable, then it satisfies preference for voluntary action and criminal liability lies. (Similar to M.P.C.)
3. MPC- §2.01(1)
Rule: If one act is voluntary then voluntary act requirement is satisfied. Best for expressivism.