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Criminal Law
University of Dayton School of Law
Hagel, Thomas




· Distinguishing feature of criminal law: consider 1) to what extent has D injured society and 2) what sentence is necessary to punish D for transgressions?

· 3 Purposes of Punishment:

o REFORMATION—some people say it doesn’t work and nature of prison system runs counter to goal of reformation (you are requiring criminal to associate exclusively with other criminals)

o RESTRAINT—Whether and for how long imprisonment for restraint is necessary depends on dangerousness of D in perpetrating his crime.

§ An argument suggests that unless restraint is permanent or coupled with rehabilitative program, imprisonment will not restrain criminal conduct, only postpone it.


o RETRIBUTION—demanded by the world.

§ Institutional retribution necessary to prevent private/personal retribution

§ Cannot be allowed to become dominant force in punishment and subordinate others to secondary status

· Deterrence

o Individual—precludes further criminal activity by D. Emphasizes negative consequences to D. However, poor prison conditions are conductive to individual deterrence, but not with meaningful rehab program.

o General—punitive sanctions imposed on one convicted criminal will deter others from doing it

§ Arguments against: most criminals unaware of sentences before courts; other factors influence behavior more than criminal law; ineffective

§ Arguments for: criminals have a general idea of punishment and influences them; other factors don’t negate importance of law; measure efficacy not by failure, but by successful deterrence

· Conflicting Purposes

o Resolution of conflict depends on judge’s assessment of competing purposes

o In case of assault against young girls, court could have:

1) Imposed substantial sentences per offense—inadequate for retribution and restraint.

2) Placed him on probation and imposed fine

3) Sentence to light but active prison term—likely to retard rehab process, adequacy of restraint is questionable, not likely to impact criminals of same type

· No Apparent Purpose

o No punitive purpose is apparent

o Case of cannibalism of weakest member for survival: deterrence is not served, nor are restraint or reformation. Retribution not appropriate.

o Can be argued that expiation (cleansing of crime from society) justifies penalty, but most members of society would have engaged in same behavior under circumstances, so sentence commuted

· Equality

o Should be degree of uniformity of treatment for those who commit crimes against society

o Because others who commit same crime need to be punished and principles of equality suggest unifor

ant to die subconsciously; lower homicide rate in states and countries without it; too final; morally wrong

o Court does not hold with a mandatory approach to capital punishment, but does consider “aggravating and mitigating” circumstances

o Victim impact evidence is now allowed in death penalty cases


Leuch v. State—

o Leuch contends concurrent sentences were excessive for grand larceny

o Consideration of Chaney criteria—isolation, rehabilitation, and community condemnation p. 9

o Community condemnation—Kantian view v. Holmes view

o Property offenses are viewed less harshly than personal offenses

o Court considered that extent of harm visited upon victim by offender is proper consideration and that proper Chaney vehicle for this consideration is community condemnation

o Probation is appropriate where it is

§ A) first conviction

§ B) no background of unsuccessful paroles or probations that would indicate probation is inadequate

o Court concluded incarceration was appropriate, but concurrent sentences exceeding 5 years was not.