OUTLINE
Retributivist: Punishment is justified when it is deserved. “even if society dissolved..last murderer should be killed.” Free will = ability to choose not to commit crime.
Utilitarianist: Deterrence–Things are right if they do more good than harm to society. Both crime and punishment are unpleasant, and normally undesirable. The threat of punishment can reduce crime, if humans act hedonistically and rationally. (if he believes punishment outweighs pleasure)
Justification: an act that would otherwise be criminal, but which the law doesn’t condemn, or welcomes
Excuse: an act that harms society, but actor should not be blamed or punished for causing that harm
Constitutional Limits on the Criminal Law
1st Amendment – Free Speech
Laws prohibiting speech or chilling expression, like flag-burning, subject to attack
Fourth – Unreasonable search and seizure
Evidence obtained by police in violation of 4th may be excluded.
Limits degree of force an officer may use.
Eighth – cruel and unusual
Imposes limits on what may be defined as criminal
Prohibits punishment that is barbarous or grossly disproportional to the offense committed.
Fourteenth – limits states – due process
Procedural fairness, bill of rights, substantive due process: liberty – right to privacy, etc
Legality Principle (not guilty if legal at time of act)
prevents government from enacting retroactive, vindictive laws
Protects individual autonomy and pursuit of happiness
justified on grounds of “fair notice” – give fair warning
Retribution – no basis for punishment if action was legal at time of doing.
Utilitarian – no deterrence value unless D has fair notice at the time of conduct to conform her behavior to the law.
Keeler v. Superior Court of Amador County – D “stomped” fetus out of wife’s body – gets off for murder because fetus was not a person yet. It was wrong, but not under the definition of murder – so D was not on notice
No EX Post Facto – Art I sect 9 &10 of const – prohibits legislatures from enacting bills of attainder (declares a specific person to be guilty without trial of conviction) and ex post facto (after the fact) legislation. – these are applied to judiciary through Due process
Vagueness
statute must not be so vague that ORP must guess at meaning, differ as to application.
Two ways to be unconstitutionally vague
public won’t understand how to follow it (fair warning)
could authorize or encourage arbitrary/discriminatory enforcement
statute must establish minimal guidelines to govern law enforcement, to prevent police discrimination or subjectivity
City of Chicago v Morales – loitering ban on street gangs – unconst vague b/c they don’t know how far or how long they must disperse, and police have discretion to see what determines loitering.
Rule of Lenity – tie breaker. if after all judicial interpretation, statute is still ambiguous, uncertain
the statute should be interpreted for D.
outlawed in many states
not constitutionally compelled
not in MPC – instead interpret statute to fit goal of statutory scheme
sistent imposition, or none at all.
After Furman, many justices thought it would go away for good,
but many states brought it back statutorily. Court had to back off.
Gregg: Upheld death penalty cases after Furman, using guidelines to limit discretion and create consistency.
BUT sentencing guidelines for consistency limit constitutionally required discretion! Catch 22!
Woodson: can’t have mandatory death penalty because it’s cruel and unusual to ignore mitigating factors, as discretionary sentencing allows.
Penry: Challenged death penalty statute that didn’t provide enough discretion for mitigating circumstances, because in an effort to be consistent, it provided a set list of factors for the jury to determine.
Lockett: requires individualized sentencing
Callins v Collins, 1994 – Blackmun dissent: Based on dichotomy of McGautha/Furman/Gregg and Woodson/Lockett, Penry shows that you can’t have both individualized discretion and non-discriminatory consistency. If you can’t have both, and both are constitutionally required, then the death penalty itself must be abandoned. Scalia concurrence: says if you can’t have both discretion and consistency, people’s elected officials must recommend which of the two values to uphold.
