Criminal Law Outline – Kurtz – FALL 2007
WHY AND WHAT WE PUNISH
Introduction
· 3 main elements of criminal liability
o Criminal act (Actus Reus)
o Criminal state of mind (Mens Rea – guilty mind)
o Absence of a defense of justification or excuse
Purposes of Punishment
®Four Main Goals of Punishment (Retribution, Deterrence, Incapacitation, Rehabilitation)
Retribution – Humans are responsible moral beings who are capable of making choices for good or evil (bad) and people that make evil (bad) choices deserve to be punished.
a. The Blameworthy Actor
i. Who are responsible moral agents? The very young, the very crazy, and the severely mentally disabled.
ii. Exceptions to this rule – law will not place blame if a person’s ability to choose was constrained by overwhelming external pressures (ex. Someone threatens to kill you if you do not commit the requested crime).
b. Grading: Principle of Proportionality (POP)
i. The punishment must fit the crime. (blame is a question of degree)
ii. Substantive criminal law implements this in at least two ways
1. System grades offenses based on severity of crimes in relation to other crimes (ex. felony=more serious, misdemeanor = less serious; murder = more serious, petty theft = less serious)
2. POP requires assessment of whether the sentence imposed fairly reflects blameworthiness of the offender and the severity of her crime. (ex. ten years for petty larceny = not fair)
c. Limiting Principle
i. Retribution requires punishment whether or not it produces beneficial social consequences.
d. Good/Bad of Retribution
i. Good = it allows people to predict and plan for the future because it establishes what is and is not punishable within the framework of the law. (ie. If you did it and it is bad, you will be punished)
ii. Good = the law demands widespread public acceptance and so it serves as an example of how people should treat each other.
iii. Bad = Insufficient justification for why we punish crimes although it does achieve favorable consequences.
Deterrence (Utilitarian theory)– If the costs of a crime are set high enough to assure that the benefits derived from it are not profitable, a rational person will not commit the crime.
a. Distinctions of Deterrence
i. Unlike retribution, deterrence is pro-active in that it seeks to prevent or reduce further crime.
b. Two Type of Deterrence
iv. Special deterrence (deterrence by intimidation) –purpose is to dissuade offenders from repeating their crimes. Punishment may deter the criminal from committing future crimes.
v. General (deterrence by example) – purpose is to deter the public from crimes once they see the consequences of those crimes. Punishment may deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment.
e. Retribution limit on deterrence
i. We are not going to punish someone if we cannot find blame.
f. Question to ask
i. Will punishing the crime serve the purposes of deterrence?
1. Example: A woman forgets to drop off her child to daycare and she leaves the child in the car all day while she is at work. Child dies and this is her only child. Will punishment serve the purposes of determent? Probably not since it is not likely that such an incident will occur again.
Incapacitation (Utilitarian Theory) – In depriving criminals of their liberty by placing them behind bars, they are unable to commit additional crimes and have fewer opportunities to commit acts causing harm to society.
Rehabilitation (Utilitarian Theory) – By putting criminal in prison, there is an opportunity to mold or reform the criminal into a person that can conform her behavior to societal norms. Through intervention planned intervention, the goal is to return the offender to law-abiding ways upon return to society.
Criminalization
® Criminalization decisions are made by the legislature.
§ legislature is in the best position to decide when state’s interest in social control should be vindicated by criminal punishment
§ rarely do courts get involved in this
® The essence of this process is to determine what activitie
r the decision in light of Bowers v. Hardwick. The Georgia statute in Bowers made the entire act of sodomy illegal between persons whereas the Texas statute prohibited the proscribed conduct only between members of the same sex.
5) The court had two choices if they were going to find for P, they have to overturn the Bowers decision (more aggressive route) or they have to find a difference between the two cases. The court takes the more aggressive route and rather than just simply overruling the case and saying that it is not applicable in present day, they say that Bowers was wrongly decided then and it is wrong now.
6) Court holds that homosexual persons have as much liberty to define their relationship as heterosexual persons do. Traditional views of a practice as being immoral is not a sufficient reason to criminalize a conduct or continue prohibition of it.
7) What was wrong with the Bowers decision?
o Issue was not stated correctly
o History of sodomy laws were overstated
o It did not look at trends in the law that were moving toward invalidating such laws
o They underestimated/minimalized the stigma attached to the label of criminal.
8) O’Connor’s dissent: Bowers should not be overruled but the Texas statute is unconstitutional. Homosexuals cannot be branded for an activity that heterosexuals are free to participate in.
9) Scalia’s dissent: Decisions such as this should be made by the people and not the court. We criminalize other conduct such as drug use and prostitution and since liberty protections do not extend to those acts, moral disapproval does serve as a base for criminalizing sexual behavior.
10) Why is case in book? In this case, criminalization is decided by the legislature but here is one of those situations where the criminalization of a certain act is being re-examined and overruled in the court system.
Ò The equal protection clause of the 14thAmendment protects freedom to engage in private conduct among heterosexual and homosexual partners.
