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Criminal Law
University of California, Hastings School of Law
Lee, Evan Tsen

Criminal Law

Types of behavior we can punish are those that:
1) Cause harm
2) Cause unacceptable risk of harm
3) Cause action preparatory to harm
II. GENERAL JUSTIFICATION OF PUNISHMENT – Every coercive government actions must be supported by justification in a democratic society. Philosophy behind justification asks 2??: when is punishment permissible? and to when is it required?
A. Deontological (Retribution theory) (backward looking approach)
1) Retribution:
a. Punishment is justified when it is deserved and it is deserved when the wrongdoer chooses to break society’s rules.
b. Even if the punishment does not bring any social good/reduction in crime, it would be wrong not to punish; “desert of deeds.”
2) Difference b/w Utilitarian approach:
a. Retributivism is backward and justifies punishment solely on the basis of the voluntary commission of a crime. Utilitarian approach does not justify punishment unless it bring net social good
b. Premise of utilitarian is that people are rational and hedonistic calculators whereas Retributivism is based on view that humans generally possess free will.
3) Different retributive theories
a. Assaultive retribution/public vengeance/societal retaliation
i. Eye-for-an eye concept: Punishment gratifies passion for revenge that would otherwise be satisfied through private vengeance. Punishment is equivalent to harm inflicted by ∆.
ii. Punishment deters private revenge (disguised from of utilitarianism)
iii. When person is victim of crime, he justifiably resents criminal for violating his rights and his passion for punishment is morally desirable because they demonstrate that crime victim respects himself.
b. Protective Retribution based on principles of personhood
i. Breach of hypothetical social K: Punishment as means of securing moral balance in society
ii. Quasi-K/Unfair enrichment: Compliance w/ rules of society burdens e/ member of community to exercise self-restraint. Punishment requires payment of debt that person owes to society.
iii. Unfair competitive advantage: Person’s failure to exercise self-restraint interrupts social equilibrium and person has the benefits of the system of rules.
iv. Evening up the cosmic books: Justification illustrates society’s respect for moral wrongdoer by giving him right to be punished and thereby rendering him free of moral guilt and stigma.
c. Victim vindication
i. By committing offense, criminal implicitly send message to victim and society that his rights and desires are more valuable than those of victim.
ii. Punishment reaffirms victim’s worth as human being.
4) Criticisms of Retributivism
a. Imperfect correspondence of jus talionis.
i. Incarceration is used as the punishment for nearly everything (not true “eye-for-an-eye”). Once you get away from the perfect one-to-one correspondence, punishment becomes very arbitrary.
b. Unjustness of existing social order
i. We don’t all start at the same place
c. Shared guilt
i. Only person punished is the criminal himself, when, in reality, other people have been part of creating the mental composition of the criminal.
d. Who has the moral standing to punish?
i. It is not accurate to view the world as criminals & non-criminals.
e. Retributivism glorifies anger and legitimizes hatred
f. Retributivism is irrational b/c it is founded on emotions. (Retributionists argue that anger – incl

em to reform Δ rather than to secure compliance via fear of punishment.
i. Methods of rehabilitation:
A. Psychiatric care
B. Therapy for drug addiction
C. Academic or vocational training
ii. Criticisms of rehabilitation
A. Do we know how to reform offenders?
B. Are they deserving of scarce resources?
c. Teaching norms to society: Idea that not everybody in society what our norms are and that punishment should be in place to teach them what they are.
i. Criticism: System ignores the dignity / human rights of offenders b/c humans are used as simply a means to an end.
C. Denunciation or Disavowal (Expressive Theory):
1) Punishment is an expression of society’s condemnation and relative seriousness of crime.
2) Denunciation is a hybrid of utilitarianism and retribution.
a. General justification comes from utilitarian goal of preventing future crime
b. Distributive justice of who and how much punishment comes from retributivism
3) Educative aspect of expressive theory –
a. Symbolic non-acquiescence/Moral condemnation (Society informs to individual that community condemns a specific conduct and that we value victim’s worth – retribution.)
b. It channels community anger away from personal vengeance
c. Social cohesion
Authoritative disavowal (State punishes party as a way of disavowing – refuse responsibility of – an act.)