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Criminal Law
UMKC School of Law
Berger, Mark

The Justification for Punishment
·        Rehabilitation
o       Coincides with American correctional system
o       Make a person better before he re-enters society
o       Should not be the goal for punishment
·        Incapacitation
o       Keeps criminals confined so they don’t commit another offense
o       May produce inconsistent convictions, but may also produce accurate sentences
o       Can we distinguish between the one-time offenders and the repeat offenders?
·        Deterrence
o       If A does X, he gets sentence Y
o       Hopefully nobody else wants sentence Y and, therefore, will not do X
o       But if B does X, then he knows he will get sentence Y
·        Retribution
o       Repay your debt
o       Determine the “amount” of fault and act accordingly
What to Punish
·        Two situations where punishment should not be used
o       The prohibited conduct should in fact not be prohibited
§         Lawrence v. Texas
§         Statutes that prohibit consensual sex between adults -are unconstitutional
§         Pg. 126; “we do not think that it is proper for the law to concern itself with what a man does in private unless it can be shown to be so contrary to the public good that the law ought to intervene in its function as the guardian of that public good.”
o       The use of punishment would produce more harm than good
§         Using the criminal law to enforce moral code

  The lines get blurred
§         Criminalizing product defects
ú         Too expensive
ú         Some consumers may not want to pay extra for added safety
§         Criminalizing the borders of socially valuable conduct
ú         What is the difference between tax evasion and tax avoidance?
Actus Reus
·        An Act
o       Martin v. State
§         Martin was pulled from his house after he had been drinking and charged with drunk in public
§         Every criminal act requires a voluntary act that is prohibited by law
§         A person who does not act voluntarily can not be culpable for his conduct
o       People v. Newton
§         Unconscious actions are not voluntary
ú         Also acts during sleep, under hypnosis, reflex/convulsion/seizure (with no prior history), or during a bodily movement that is not the product of the effort or determination of the actor
§         If there is any evidence showing that an act was involuntary, no liability whatsoever
o       No person is punishable solely for his thoughts
·        An Omission
o       A failure to act can sometimes be a criminal act
o       Jones v. US
§         Four situations where omission can be criminal
Where statute imposes duty of care