Criminal Law Outline

General principles

Theories of Punishment

i. Deterrence
1. General deterrence – keeps others from committing crimes
2. Specific deterrence – keeps criminals from repeating crimes
ii. Rehabilitation – seeks to reform the criminal (penitentiary comes from same root as penitence)
iii. Incapacitation – keeps criminals from committing crimes while incarcerated or after executed or chemically castrated. Maintains order.
iv. Retribution – punishes for the sake of ‘getting back’ at the criminal; this view, unlike the other three, is not utilitarian, but it is sometimes supported by utilitarian arguments. Eye for an eye
1. Punishment is necessary to prevent vigilantism – wronged party won’t take it into his own hands if he sees the law punish the criminal
2. Punishment makes the law’s expectations very clear
3. separates society from bad behavior – every time we convict someone, we acquit the rest of us

Levels of punishment

i. Why is it necessary to punish proportionally to the seriousness of the crime?
1. if the punishment is the same for all crimes, people will be more likely to commit the more serious ones
2. if the punishment is too severe, the jury will be eager to acquit for small crimes
ii. Retribution is not only a rationale for punishment, but also a limit on punishment

Burden of proof

i. Burden of production that ∆ has an affirmative defense is on ∆
ii. Burden of persuasion that (beyond a reasonable doubt) ∆ acted culpably in regard to all material elements of a crime is on prosecution; burden of persuasion that ∆ has an affirmative defense is on ∆, but state still has to prove it
Making Criminal Law:
Federal and state constitutions divide the power of government – “Separation of Powers”
· Legislative makes law, Executive enforces the law and Judiciary applies the law.

Legislators and Judges

Anglo-American legal system originally relied on judges to formulate criminal law through a body of judicial op