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Criminal Law
University of Kansas School of Law
Stacy, Thomas G.

I.       Introduction
A.                 Sources of Criminal Law
1.      Common Law – case law (look at how statutes are interpreted)
2.      Kansas Law – majority of criminal law comes from state statutes (if ambiguous, look at case law)
3.      Majority Law – principles of criminal applicable in a majority of modern American jurisdictions
4.      Model Penal Code – draft model code prepared by group of distinguished jurists, criminal law scholars, and practitioners
5.      Legislative History
 
B.                 Interpretation
i.                  Reasons not to use legislative history
1.      What is said in debate might not reflect the intention of the law
2.      Reliance on legislative history would delegate authority to staff members and the few legislatures that write and look at reports
ii.                   Reasons to use legislative history
–     Gives the whole meaning of the statute
iii.             Interpret statutes in light of their text, legislative history, and purpose. Also interpret in light of case law applying them or any incorporated common law concepts
II. Purpose of Criminal Punishments
A.           Utilitarianism
i.        Defined: Focuses on the future consequences of criminal punishment. Criminal punishment is justified if it does better than alternatives in producing future happiness or utility. (Mill)
1.      Specific Deterrence – deters offenders from repeating offenses in the future
2.      General Deterrence – deters not only offender, but others as well
3.      Incapacitation – removing the offender from society (execution or incarceration)
4.      Rehabilitation – reforming the offender
                 
         B.          Retributivism
i.       Defined: Backward looking- is criminal punishment deserved as a matter of rational justice, wholly apart from future benefits and costs? Punishment must be proportional to the wrong.   Criminal punishment is justified b/c the offender deserves punishment as a matter of rational justice, not b/c of beneficial consequences in the future. (Kant)
                       
ii.       Gravity of wrong turns on:
1.      Degree to which act infringes on another’s autonomy – murder worse than theft
2.      Degree to which offender is responsible – intentional acts generally worse than unintentional
3.      The offender’s general character – bad acts by

e disproportionate to the evil avoided
 
ii.       Retributivism
1.             View: Wrong to kill an innocent person and that is the ultimate infringement on someone’s autonomy.
 
2.              Punishment:
a.             Light Sentence – didn’t infringe on Parker’s autonomy too much b/c he was about to die. D’s are good people and one bad act.   Necessity killing is justified b/c reasonable people do this
b.             Heavy Sentence – ultimate infringement, don’t know if they would have been rescued that same day as they killed him
 
iii. Utilitarianism
1.         View: Killing one person to benefit others would seem to be a logical argument. To determine who would be saved, consider age, whether they have families, if their history indicates they will be good in the future. Slippery slope argument that if killing to benefit is okay in this case, why couldn’t a person be killed to use their organs and benefit a lot more people?