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Criminal Law
University of Oklahoma College of Law
Thai, Joseph

Criminal Law Outline

Theories of Punishment

A. Utilitarianism-Formulated by Jeremy Bentham. Justification lies in the useful purpose that punishment serves. More frequently referred to as social utility. Utilitarians believe that the pain inflicted by punishment is justifiable if, but only if, it is expected to result in a reduction in the pain of crime that would otherwise occur.
Who-those whose punishment would increase overall happiness
What-acts resulting in overall unhappiness
Why-maximize overall happiness
How (much)-Whatever (and however much) maximizes overall happiness (from deterrent & incapacitation minus costs of punishment).

Forms of Utilitarianism-Most commonly utilitarians stress general deterrence. Ex-D is punished in order to convince the general community to forego criminal conduct in the future. Here, D is used as a means to a desired end. Specific deterrence is an alternative goal to stop THIS offender from committing again in the future.

When punishment is not proper under utilitarianism:
1. When groundless (nothing wrong that needed to be punished-the act wasn’t bad). No socially disutility.
2. Inefficacious-when the punishment can’t do anything to prevent future social harm.
3. Unprofitable or too expensive.
4. The punishment is needless. The socially harmful behavior will expire on myself.

B. Retributivism-Punishment is justified because people deserve it. According to the retributivist, it is morally fitting that an offender should suffer in proportion to his desert or culpable wrongdoing. According to Kant, if you do something wrong, society has a duty to pay you back.
Who-Those who are guilty of wrongdoing
What-Immoral acts
Why-Wrongdoers deserve and must be punished
How (much)-whatever (and however much) is just.

Forms of retributivism-Assaultive retributivism: because the criminal has harmed society, it is right for society to “hurt him back”. The second is protective retribution-punishment is a means of securing a moral balance. The third is victim vindication-Here the criminal makes a false moral claim as to his relative worth. Defeating the wrongdoer- masters the criminal in the way that he mastered the victim.

C. Alternative Theories of Punishment

Nietchze-pain is festive, punishment repays injury, punishment civilizes man, pain is the best mnemonic.

Foucault-punishment perpetuates existing post-aristocratic, bourgeois power-knowledge structure. Eliminate physical punishment.


NOTE-Retributivism looks back, utilitarianism looks forward. Utilitarians could possibly punish an innocent to serve the greater good. Retributivist-island example-kill rather than leave man on island alone, because he deserves punishment.

Theft example-10,000 theft-20% chance of getting caught-Retributivist would say, they forfeit their property, because they took someone elses. Utilitarian would say fine should be something more than 50,000. 1/5 chance to get caught, so they can steal 5 times before 100%. That is 50,000.

Torture example-a defendant tortured a victim before killing him. How would he be punished under retributivist/utilitarian.
Utilitarian-punish them to stop committing crime in the worst possible way
Retributivist-want to kill as humanely as possible, if you punish any more, you are being inhuman.

Proportionality Under 8th Amendment-punishment that is grossly out of proportion to the severity of the crime is cruel and unusual. ESOD-Trop.

Sentencing guidelines are not statutes. They are used as general guidelines. We look at things like remorse, role, type of drug, etc…

The concluding thought in theories of punishment ends with Foucault-“are we more enlightened than the ancient regime?” No, we’ve only shifted the punishment from body to soul.

o arbitrary and discriminatory enforcement, they violate fair notice.
Too vague means we don’t know what the rules of the game are to begin with. Vagueness means there are insufficient guidelines to govern enforcement.

Values-why we invalidate rules that are unduly vague (policy reasons): Gives opportunity to conform conduct to law. Prevents arbitrary and discriminatory enforcement. Prevents chilling of protected speech or conduct (if the law is vague, people might err on the side of caution and not engage in permissible behavior).

Morales-Chicago City Council enacted the Gang Ordinance which prohibited loitering of criminal street gang members. The statute said no loitering with “no apparent purpose.” The statute required the officer who “reasonably believes” witnessing loiterers to “order all such persons to disperse and remove themselves from the area.” The majority rejects it because it’s too vague, and cops can enforce it on whoever they want. A plurality rejected it because there is no fair notice (‘it is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an apparent purpose’).

Banks-peeping tom-statute says “Any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor. The issue is, which of the following are vague: peep, secretly, or into any room occupied by any female person? The court construed the terms as narrowly as possible in order to fulfill the legislative intent. The court ultimately held that this is fine, and is not overly broad.