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Criminal Law
University of Georgia School of Law
Kurtz, Paul M.

Kurtz Criminal Law fall 2009 – Criminal Law. 2nd Ed. Bonnie.doc

Prosecutory discression – we give prosecutors ability to decide what general theories of punishment apply
Cops, judges, and jury also all have the ability to influene whether a given criminal law “exists”
We build this in order to tailor a given punishment to a specific act
Factors in determining prosecution
1) Resource issue
2) Theories for prosecution
utilitarian theories of punishment vs. retributive theory
3) proportionality – once people are within the circle of punishment we muse decide how such people are punished
legislature sets overarching guidelines
court then uses leeway given by the legislature to tailor punishment to the specific crime
trend agaist such leeway (mandatory minimums)
not all acts are equally bad
Theories behind punishment
retributivist view
“the reason we are doing this is to you is to punish a wrong and it is good for society to punish wrongs”
vengence factor – we feel good when “bad” things are punished
consequentialist (utilitarian) view
utilitarian in nature; if we punish, good things will result
look forward in order to determine future impact
if positive goal not accomplished, no punishment
punishing action will discourage further crime
specific vs. general deterrence
Bentham – cost benefit analysis
If potential cost outweigh benefits it will prevent action by the criminal
Amount of dissuasion varies greatly between criminals
May not work at all on some criminals
Assumes people think before they act
Argues that will not work on young, stupid, and drunk
May not be true, could lead to general deterrence or at least improved behavior of specific individuals
If punishment not reasonably proportional, will be counterproductive
If jaywalking life sentence, just kill the cop!
Note that deterrence’s effenctiveness is untestable
Human nature wants it to work, but it may not in many cases
incapacitation theory
we put someone away to protect the greater community
who do we punish
likelihood of reoffense
offender v. charge based system
offender based – punish based on individual criminal
charged based – we punish on offense alone (mandatory minimums)
Do we punish highest number of crimes or worst offenses
Ethical issues – is it just to punish based upon percentage of reoffense alone
Conflict between incapacitation and retribution
in incapacitation, whether they meant to “be bad” or not, they should be put away
Rehabilitation theory
Sort of optimistic version of specific deterrence and incapacitation
Popularity has come and gone over time
Popular during enlightenment, early 20th century, and the 60’s and 70’s
Problem is that empirical theory does not work terribly well
Some argue that this hasn’t worked in the past because we have not put enough money into it
what do we punish and what do we not
why are there things that we disapprove of but do not punish criminally
Lots of alternatives (torts and contracts)
We don’t want to overly invade peoples privacy
Who makes acts criminal
Usually legislature through C-B analysis
Societal benefit v. Associated social costs
monetary costs
restriction to peoples privacy
reduced productivity
criminogenic effects (ex outlawing drugs)
crime tarrif (money to be made in illegal trade) leads to organized crime
reduction of respect for the law if laws unjust
also in courts through common law lawmaking
generally frowned upon in the US
The courts almost always accept the determination of the legislature
Lawrence v. Kansas exception
Court rules that enforcement of sodomy statute is un

interpretation, application, and stare decisis
leads to question of what is allowed and what is unallowed judicial activism

Criminal legislation is only justified when there is harm to another individual caused by an act (Mill)
Cant prohibit acts which are harmful to oneself
This approach is very libertarian
Can do what you want until you harm someone else
All libertarian values not protected under the due process clause
Act should not always be required (Sir James Fitzjames Stevens)
In case of outrageous wickedness, you need to punish based upon morality and set an example so others do not commit the same act (deterrence).
General rule is that we only punish acts and not merely thoughts
1) Need a bright line up to where citizens can change their mind (locus penetientei)
2) Evidentiary function – Generally very hard to prove what is going on in a criminals mind without an act
3) Function of privacy – if we allowed punishment of thought alone we would give police and procecutors incentive to get confession of thoughts
Legally sufficient acts
Two major requirements
1) dangerousness
Act must be deemed dangerous enough by society to justify punishment
Doe v. City of Lafayette
Man is punished for driving to park and fantazising about little boys
Unique case because we know the criminals mental state
While he did commit some acts (driving to the park) these are deemed not dangerous enough to hold against him criminally