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Criminal Law
Villanova University School of Law
Lister, Matthew J.

Villanova University
Criminal Law
Professors Lister, Dempsey, and Channenson
Fall 2016
I.Theories of Punishment (What Justifies Criminal Law & Punishment?)
Overview: Considers moral blameworthiness instead of the usefulness of the punishment to society; punishment is justified because the offender deserves to be punished for his/her wrongdoing.
Positive Retributivism: A guilty person deserves to be punished for his/her wrongdoing
Negative (“Limiting”) Retributivism: Combines consequentialist and retributive considerations—criminal punishment can be justified in virtue of the good consequences it realizes, but that the amount of punishment that can be justified in any particular case is limited to the amount of the D’s just deserts
“Not deserved” punishments are deemed unjustifiable
An innocent person ought not to be punished
Overview: A philosophical theory which claims that the state is justified in using criminal law and punishment insofar as their use leads to good consequences for society (utilitarianism is a branch of consequentialism—punishment is justified when it increases social utility/happiness) (forward looking theory)
General Deterrence—offender is punished in order to deter other people who might consider committing similar crimes
ii.         Specific Deterrence—offender is punished in order to deter the same offender from future criminality (recidivism)
Punishes for the purpose of changing the offender’s mental outlook so they will be reformed, hopefully losing their desire to recidivate
Offender is jailed (or house arrest) for a period of time to prevent them from committing further crimes and to protect others from the risk they pose
Social Norms Transformation (“Norm Entrepreneurs”)
Punishment can be justified in virtue of their ability to educate society regarding the proper standards of behavior
C.Expressive Theories of Punishment
Overview: Seeks to justify criminal law and punishment on grounds that they express correct norms regarding proper standards of behavior and demonstrate proper respect for both victims and defendants
1. Condemnation of Moral Wrongdoing—the defendant deserves to be condemned for his wrongdoing, and so to give him what he deserves is one manner of showing respect for him as a person (retributivist)
2. Moral Education—punishment teaches the offender and the general public how society expects people to behave (consequentialist)
II.Principles of Statutory Interpretation
Goal: Determine intent of legislature
-Look at language of statute
-Look at legislative history
-Examine more broadly the overall statutory framework within which the particular statute resides.
Principle of Lenity—a principle of statutory interpretation which states that where two reasonable interpretations of a criminal statute exist, courts should interpret the statutory language in a way that is most advantageous to the defendant
III.Constitutional Limits on Criminal Law[1] A.Proportionality
Challenge to law based on punishment being too harsh
-Successful in death penalty cases
Legal Standard= “grossly disproportionate”
What problem is vagueness doctrine designed to solve?
Unfairness to individuals who are trying their best to conform to the law’s requirements (not to protect people like Nash who were skating on thin ice already – but can protec

ation (self-defenese to escape attack, refusal of medical treatment, even suicide, in extreme cases)
Main differences from common law = MPC frames the issue of legal causation in terms of D’s mens rea in relation to the consequence element of the actus reus (“actual result”).
B.Mens Rea
Common Law
Specific Intent: Intend to do the act and bring about some specific harm. “Specific intent refers to defendants’ mental state with respect to the results caused by their conduct.”
Theft and fraud usually fall under specific intent
General Intent: Intend to do the physical act that constitutes the relevant crime. “General intent refers to defendants’ mental state with respect to their conduct.”
Common law offenses typically require proof of mens rea defined as either:
1. General criminal intent (intent to do the act that is defined as criminal);
2. General criminal intent with a “plus factor” (e.g., “malice,” or “criminal negligence”);
Malice in Fact: Vex, annoy, or injure
Malice in Law: Implied malice. Intend to do a wrongful act established by proof or presumption of law.
Criminal Neligence: Gross or severe negligence. Act not just selfishly, but with extreme selfishness, enough to constitute indifference to the risks your conduct imposes on others.
3. Specific intent (intending to do some further act or achieve some additional consequence).