Criminal Law
I. Theories of Punishment
Moral Desert (retributive) vs. Deterrence (utilitarian)
People v. Superior Court (Du) ( CA 1992)
F: A liquor store owner is convicted of voluntary manslaughter, after shooting and killing a young customer, believed to be a shoplifter, in the back of the head while the customer was leaving., in bad neighborhood, were getting robbed every week.
Judge decides to give her probation, b/c she is not really a danger to society. (Incapacitation?)
A. Retributivism_ (Kant)_____________________________________________________________
o Desert: Moral Culpability
o Goal is to restore balance of nature by punishing evil.
o Criminal took advantage of social rules which other obey, i.e. took benefit of rules without accepting the burdens. This must be equalized. Punish as much as deserved (+), and no more than deserved (-).
o Negative: Punish no more than deserved
o Innocent ppl should not be sacrificed for the greater good
o Positive: Punish as much as deserved
o Guilty must be punished. (Island example)
o Person should not be punished more nor should innocent person be punished even if that maximized social pleasure.
o Having paid debt, criminal can rejoin society as equal member.
o Victim Vindication – Punishment is a way to right a wrong.
o Criminals hurt society, society must hurt criminals
Criticism of Retributivism
o Legitimizes hate
o Irrational because its based on emotions
o Societies overall goal should be to reduce human suffering, not to purposely cause it. Infliction of pain is cruel if does no good.
B. Utilitarianism_ (Bentham)________________________________________________________
o Purpose of law is to maximize net happiness (utility) of society. Use as little punishment as possible in order to prevent crime.
o If it’s to societies benefit, then punish; if not then don’t punish
o General Deterrence – Punish X in order to deter general public from committing that crime
o Specific Deterrence – Punish X in order to prevent X from committing the same crime again by:
Incapacitation – person is in jail so cannot harm anyone
Rehabilitation
Intimidation
Norm Reinforcement – seeing other punished for an action helps remind others of norms
Criticism of Utilitarian
o Could justify punishing innocent if that deters crime
o Could justify extremely severe punishment if crime rates high
o Could justify punishing poor person more for stealing compared to a rich person because of the greater temptation there is a need for more punishment.
o Could justify punishment for evil intentions, could lock up people who had propensity to commit crime.
o Uses individuals as way of improving society, it ignores individuals rights and dignities
o Critics doubt that criminal could be reformed, if family, school, and religion have failed why would prison, psych care or any other treatment succeed?
II. Constitutional Limitations on Crime
A. Proportionality __________________________________________________________________
8th Amendment: Excessive bail shall not be required, nor excessive imposed, and cruel & unusual punishment inflicted.
o Fines and bail are not punishment; they are referred to separately within the clause.
o Punishment= prison sentences and capital punishment.
Note: The Fed Constitution is the floor for the proportionality of punishment, but not the ceiling.
Example: Recidivism: Harsher punishment for repeat offender laws
Current Law: Ewing v California (USSC 2003)
Majority: O’Conner, Kennedy, Rehnquist:
H: The 8th Amm does not require strict proportionality between the crime and the sentence, but rather
s (he had a 75-96% survival chance)
-Follow-up: CA leg. changed law to include fetuses, excluding therapeutic abortions.
2. Constitutional Doctrine of Void-for-Vagueness= forbids wholesale legislative delegation of law making authority to the courts. (Raised in a pre-trial “Facial Challenege”
o Statutory Clarity requires:
A. Notice: if statute is too vague (easily misinterpreted), it does not provide adequate notice to citizens.
B. Proper Discretion: if statute is too vague, it might provide too much discretion to law enforcement officials and lend itself to arbitrary and discriminatory abuse.
o City of Chicago v Morales (IL)
o F: Ordinance against loitering: 4 requirements: 1) reasonable belief of gang member identity 2) loitering 3) officer asks for dispersion 4) Disobedience of #3. No further proof of actual gang member status is needed.
o H: 1) fair notice in this case does not help clarify harmless loitering. 2) Vague as to what constitutes obeying the officer’s order to disperse. Also vague in that it doe not establish minimum guidelines for law enforcement. Too much discretion to officers and too little notice to citizens.
o Contrast: MPC 250.6: Loitering or Prowling: Officers have to give the opportunity to a potential loiterer to identify himself and explain his presence and conduct.
3. Rule of Strict Construction (Lenity) = judicial resolution of judicial uncertainty in the meaning of penal statutes needs to be biased towards the accused.
