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

Criminal Law Outline
Stacy – Spring 2005

I. Purposes of Criminal Punishment
a. Questions addressed:
i. Why should some wrongs be exclusively civil in nature (e.g. defamation) while others are subject to criminal sanctions (e.g. car theft)?
ii. What should be offenses? Defenses?
iii. What should the punishment be? Death, incarceration? For how long? Fine?
b. 2 Basic Schools of Thought:
i. Utilitarian view
1. Seeks to justify criminal punishment in terms of future costs/benefits
2. Benefits
a. Specific deterrence – Offender’s punishment deters him from committing crime again.
b. General deterrence – Punishment deters others similarly situated.
c. Incapacitation – Offender “warehoused,” prevented from committing future criminal acts, thus protecting society from harm.
d. Rehabilitation
3. To determine whether punishment is a good idea, compare its benefits/costs with those of alternatives
4. Example: Making defamation a crime instead of merely a civil wrong compensable only by monetary damages. The utilitarian would look at the benefits for making it a crime + costs, and then compare to civil damages benefits/costs.
a. Benefits
i. Added general & specific deterrence – better protects reputation
ii. Incapacitation possibility of chronic defamers
iii. Rehabilitation possibility
b. Costs
i. Not much added deterrence since people usually have to pay damages
ii. Costs of incarceration
ii. Retributivist view (just deserts)
1. Backward-looking – Criminal punishment is justified not b/c it will have beneficial consequences in the future compared with alternatives but rather b/c offender has committed a wrongful act that justice and reason require be rectified, whatever the consequences.
2. Punishment must be proportionate to the wrong.
a. Rational autonomy – Each person can make rational choices, and murder deprives a victim from making rational choices, so punishment should be proportionate.
3. Gravity of the wrong depends on:
a. Degree to which another’s autonomy is infringed (murder is worse than theft).
b. Degree of offender’s responsibility (intentional acts generally worse than unintentional).
c. The offender’s general character.
4. Example: Making defamation a crime instead of merely a civil wrong compensable only by monetary damages. The retributivist would look at the degree to which defamation causes deprivation to autonomy:
a. Yes arguments:
i. More severe infringement of another’s autonomy than car theft (implications of tarnished reputation).
ii. Offender has a high degree of responsibility for making intentionally false statements with intent to injure.
b. No arguments:
i. Autonomy includes right to justifiably criticize/describe others, even if injurious.
iii. Differences between the Retributivist & Utilitarian views
1. Relevance of prior convictions
a. Utilitarian – easy to see how prior convictions influence current crime…greater need to warehouse, rehabilitate, etc. Past punishment didn’t work, so specific and general deterrence are necessary.
b. Retributivist – Probably would not matter at all…instead, focus on wha

the other would live. If no surgery, both would eventually die. Same analysis as Dudley & Stevens
3. The War Against Drugs
a. Utilitarian View – What are the benefits/costs of criminalization? For proponents of legalization?
i. Benefits of legalization:
1. Diminishes prices b/c search prices are so high
2. Quality is regulated; You know what you are getting
a. Saving lives
b. Possibly helping reduce costs to users
3. Might reduce crime – users ≠ have to pay as much to support habit, so they don’t have to commit crimes to get money
4. Get rid of the law enforcement, judicial, imprisonment, coast guard enforcement costs, etc.
5. Helps keep families together…lots of people are incarcerated for drugs
b. Retributivist/Kantian View
i. Basic argument in favor of legalization:
1. Retributivist – respect for the rationale autonomy of persons
a. People have the right to do what they want with their body as long as it doesn’t harm others.
b. One response to the fact that people cause harm to others is to make drugs illegal. Another view is instead of prohibiting drugs, just punish the harm.
c. Situation where someone takes an addictive drug, becomes addicted, wants to kick the habit but is unable to do so…infringement on autonomy.