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Criminal Law
Villanova University School of Law
Dempsey, Michelle Madden


Professor Dempsey

Fall 2012

THEORIES OF PUNISHMENT (What Justifies Criminal Law & Punishment?)

I. Retributivist Theories

a. Positive Retributivism

i. A person who deserves punishment should be punished (i.e., desert is a necessary and sufficient condition of punishment).

ii. E.g., If D1 deserves punishment for doing X, then that fact alone makes it permissible to punish D1, even if no other good might be realized through punishing D1.

b. Negative (“Limiting”) Retributivism

i. A person ought not to be punished unless he deserves it (i.e., desert is a necessary but not sufficient condition of punishment).

ii. E.g., D1 deserves punishment for doing X, but that fact alone does not make it permissible to punish D1. Instead, we have to ask what other good might be realized through punishing D1. If D2 does not deserve punishment (either because he did not do X or because X is not blameworthy), then it is impermissible to punish D2, no matter what other good might be realized through punishing D2.

II. Consequentialist Theories

a. Deterrence

i. General deterrence

ii. Specific deterrence

b. Rehabilitation

c. Incapacitation

d. Social Norms Transformation (“Norm Entrepreneurs”)

e. Miscellaneous Consequentialist Considerations

III. Expressive Theories of Punishment

a. Condemnation of Moral Wrongdoing

b. Moral Education

IV. Mixed Theories of Punishment


I. Concepts

a. Actus Reus (“the 4 Cs”)

i. Conduct

ii. Circumstance

iii. Causation

iv. Consequence

b. Mens Rea MPC 2.02

i. Intent/Purpose (2)(a)(i)-(ii)

ii. Knowledge (2)(b)(i)-(ii)

iii. Recklessness (2)(c)

iv. Negligence (2)(d)

v. Strict Liability

1. Strict liability approved in cases of production of child pornography (Fletcher, p. 33)

2. Purchasing alcohol for minor approved as strict liability offense, but D allowed to plead affirmative defense of reasonable mistake as to minor’s age (In re Jennings, p. 33)

vi. Look to hierarchy MPC 2.02(5)

c. Defenses

i. Failure of Proof Defenses: invoked to argue that the prosecution has failed to prove the defendant committed each element of the charged offense

ii. Affirmative Defenses: each element of prima facie offense has been proven, but the defendant claims justification or excuse for her offense

1. Justifications: Actions are justified.

a. Self-Defense

b. Defense of Others

c. Defense of Property

d. Necessity

2. Excuses: Actors are excused.

a. Duress

b. Insanity

d. Inchoate Liability

i. Attempts

1. Acting with intent to commit the target offense, but failing to do so

a. Note: See attempt liability

ii. Conspiracy

1. Agreeing with others to commit the target offense

a. Note: Do not discuss on exam

iii. Solicitation

1. Asking someone else to commit the target offense

a. Note: Do not discuss solicitation on the exam

II. Principles of Criminal Law

a. Principle of Culpability

i. Exception: Innocent motives do not negate criminal intent. D may still be convicted, even if intentions are good.

ii. O’Brien: D’s lack of fraudulent intent did not negate criminal intent in case of willfully altering a public record.

b. Principle of Correspondence

c. Principle of Coincidence

i. Time of trespassory taking must coincide with MR (intent to steal). Legal fiction of “continuing trespass” can be invoked to extend the time of the taking until D forms intent to steal (p. 57).

d. Principle of Contemporaneity

e. Harm Principle

f. Offense Principle

III. Doctrines of General Part

a. Voluntary Act Requirement

i. General Rule: D cannot be held criminally liable unless D performs a voluntary act[1] (MPC § 2.01).

1. No liability for reflex or convulsion

2. No liability for unconscious movement or while sleeping

3. No liability for actions while hypnotized

for corresponding homicide charge (i.e., murder, manslaughter, or negligent homicide)

3. Special Doctrines that extend accomplice liability, so that prosecution does not need to prove A’s MR regarding P’s offense

a. “Natural and Probable Consequence” doctrine: a jury may find that an aider and abettor is guilty not only of the offense he intended to promote or facilitate, but also for any other offense that was a natural and probable consequence of the crime aided and abetted.

i. Did P commit target crime X?

ii. If yes, was A an accomplice in the commission of that offense?

iii. If yes, did P commit any other crimes?

iv. If yes, were these crimes, although not subjectively contemplated or desired by A, reasonably foreseeable consequences of Crime X?

1. Note: to convict A as an accomplice under the “natural and probable consequences” doctrine, there is no need to prove A was engaged in a “common unlawful enterprise” with the principal, or that D was subjectively aware of risk that the principal would commit further offense

b. Hampton doctrine: a jury may find that party to a “common unlawful enterprise” intended the commission of a co-D’s further crime, if that crime was “fairly within the common unlawful enterprise” to commit another crime.

i. The test of whether the co-D’s further crime was “fairly within unlawful enterprise” looks to whether D was subjectively aware of a risk that co-D might commit the further crime (i.e., reckless as to the possibility that co-D might commit further crime)

[1] In other words, D’s omission/failure to act will not satisfy the AR elements of a criminal offense.