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Criminal Law
University of Oklahoma College of Law
Thai, Joseph

Crim. Law


Spring 2013

· Theories of Punishment

o Utilitarianism – Pleasure/Pain

o Retributivism – Morality

· Bentham – Utilitarianism (pain and pleasure)

o Moral theory; practical

o “As a whole we maximize our happiness”

o Well being of the entire nation over those of smaller circles – Political

o Punish mischief – Why?

§ So that those who are committing crimes do not infringe upon the whole’s pleasure

o Only punish enough in which the pleasure will outweigh the pains involved.

§ More pain on society = harsher punishment

§ Punishment should outweigh the possible pleasure of the crime (deterrence)

o Pleasure > Pain

o Heavy Deterrence theory

· Kant – Retributivism

o “One man ought never be dealt with merely as a means subservient to the purpose of another”

o Idealistic/moral theory

o Rejects principle of utilitarianism on basis of deterrence (rejects deterrence)

o Necessary and sufficient to punish regardless of deterrence value

o No innocent person should be punished; not necessary or significant to punish someone with no guilt.

o Categorical Imperative

§ “Act only according to that maxim whereby you can at the same time will that it should become universal law.”

o “Act in such a way that you can treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means.”

o Must punish the guilty even when no pleasure for the societal whole are present because lack of punishment will bring a lesser government.

o Being humane is not being merciful

o Principle of Equality

§ Punishment must equal crime; “The scale of justice is made to incline no more to one side than the other”

§ No more, no less

o Must punish, regardless of deterrence.

· John Rawls

o “Veil of Ignorance”

§ Not sure where you will lie within legislation, then the law is just.

o Criminal laws are moral and just if we would agree to them under a veil of ignorance.

o Justice is about fairness

· Alternative Theories

o Nietzsche

§ At the root of all “We are animals”

§ Punishment repays debt

§ Violate rules of the whole, you owe a debt

§ Pain is festive (enjoy seeing pain onto others)

§ Punishment Civilizes

· Pain is best mnemonic

§ “Law breaker is a debtor . . . who has attacked his creditor”

§ Not justifying punishment, says “this is how it is.”

o Foucault

§ Why physical public punishment?

· Demonstrate power over the people (subjects) by the king

§ Punishment perpetuates post-aristocratic, bourgeois power-knowledge structure

§ Evolved over time, changed from body à spirit à soul (execution à jail)

· Legality Principle

o Crimes must be predefined.

o “No crime without law; no punishment without law”

o Constitutional Limits – Ex Post Facto à Legislature

§ Makes conduct lawful when committed unlawful

§ Makes crimes greater than when committed

§ Inflicts greater punishment than when committed

§ Allows less or different evidence for conviction than when committed.

o Judicial – Due Process

§ No retroactive application of judicial alteration of common law criminal doctrine that violates fair notice

· Unexpected and indefensible change from law prior to conduct.

· Proportionality of Punishment

o Cruel and Unusual punishment if:

§ No measurable advancement of deterrence or retribution


Judicial interpretation of ambiguous statutes should “be biased in favor of the accused” a concept known as the lenity doctrine

· Rule of Lenity – must conclude that there is a “grievous ambiguity or uncertainty” in a statute.

· Statutory Interpretation

o “Originalism” – Formal process of democracy legitimizes the law.

§ Original Public Meaning”

§ Interpret constitution as it is as written; original meaning of words at the time written

§ Process legitimizes the law

§ Look at word meanings at time of writing.

o “Purposivism” – Substantive

§ “A word is not a crystal, transparent and unchanged, it is the skin of a living thought” – Wendell Holmes

§ “Framers might have been more specific. they did not presume to have this insight.”

§ Words are thoughts

§ Purpose, Pragmatic, Partnership

§ Scalia says purposivism is dangerous because it brings our individual values into the interpretation.

o Steven’s 5 Steps (canons of statutory interpretation)

§ Read the statute

§ Read the entire statute

§ Read in its contemporary context

§ Consult legislative history

§ Use common sense.

o “Textualism”

§ Text, Reasonable meaning, Nothing Else

§ “process created the law” – only words matter.

§ The only law is the words.

§ “The objective indication of the words, rather than the intent of the legislature, is what constitutes the law . . .