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Criminal Law
Villanova University School of Law
Brennan, Patrick McKinley


Criminal Law—Process of putting person in cage or taking away life
Deals with the necessary or sufficient conditions for incarcerating people, killing people, or punishing people
Goal: to make men moral

– The people give the government the authority to punish

The Justification of Punishment

Regina v. Dudley and Stephens
S and D were in shipwrecked boat with boy and B. S and D, after dissent from B, killed boy to save their own lives. S and B fed from boy until they were rescued 4 days later. The boy did not resist, he was incapable of doing so.
– S and D were sentenced to death, never actually served any time
– Did S and D deserve punishment?
o Cannibalism was the accepted method at sea for a long time (before modern communication)
o Judge knew when gave verdict that S and D would not be punished. He just wanted to sent a message to stop cannibalism on high seas
– 3 Necessities
o conservation of life
o obedience
o necessity of the act of God or of a stranger
– To preserve one’s life is generally speaking a duty, but it may be the plainest and highest duty to sacrifice it. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one’s life

– Law and Morality are not the same—law should reflect morality though
– Criminal Law reflects societal and government judgment about acts they think are unacceptable
– Justification and Excuse discussed briefly—see later

Why Punish?

4 Theories of Punishment

Retribution—getting even, punishing in order to punish, because it is deserved
Deterrence—stop others in future
Incapacitation—taking dangerous people off the streets

Reasons to Punish are either forward or backward looking, or both.

MPC Levels of Culpability

Purpose: conscious object
Knowingly: virtually certain
Recklessly: conscious disregard of known and substantial risk
Negligence: higher standard than tort law

All punished in criminal law.

– Justifications for punishment fall into 2 large categories:
o Retributive: punishment is justified because people deserve it
§ Backward looking—seek to justify punishment on the basis of the offender’s behavior in the past
o Utilitarian: justification lies in the useful purposes that punishment serves
§ Forward looking
· Seek to justify punishment on the basis of good consequences it is expected to produce in the future
– Must be statutes that make something a crime
o statute defined by cases
o people need to know what to do and what to refrain from
– Jeremy Bentham: General object of laws should be to exclude everything that subtracts from happiness, namely, mischief. All punishment is mischief. Punishment should only be excluded to the point it promises to exclude some greater evil.

p 79 NY Penal Code and CA Penal Code

– Idea that someone should be punished because he or she deserves it
– Authorities have responsibility to put people doing bad for common good, right
o Look out for greater good
– MPC does NOT include retribution
o Drafters thought retribution no longer acceptable form of punishment
– CA has retribution
– Even leading supporters of the death penalty today, do it for deterrence
– Retributionà good for you to get punished
o Not vengeance
– Michael Moore: The Moral Worth of Retribution
o Retributivism is the view that punishment is justified by the moral culpability of those who receive it. A retributivist punishes because, and only because, the offender deserves it.
o For a retributivist, the moral culpability of an offender also gives society the duty to punish
o Moral culpability is in such a view both sufficient as well as a necessary condition of liability to punitive sanctions
– Kant, The Philosophy of Law
o When culpable deserve to be punished, so the state is justified and MUST punish because you deserve it
o You must be reconstructed by evening the score
o Nature of retribution is to punish because there is a duty
o Amount of punishment—standard is proportional punishment
§ EX: if you murder, you die
– Catholic View (Contemporary)
o State under duty to retribute
o Retribution is principle and necessary justification for punishment
o Punishment has medicinal purpose and helps to repair you
o Punishment is NOT evil
o Legitimate authority has right and duty to inflict appropriate offense
§ Safety
§ Public order
§ Medicinal purposes
§ Correct guilty party
§ Restorative value
– Hart, Punishment and Responsibility
o A simple model of retributive theory will assert 3 things
§ A person may be punished if, and only if, he has voluntarily done something morally wrong
§ That his punishment must in some way match, or be the equivalent of, the wickedness of his offence
§ The justification for punishing men under such conditions is that the return of suffering for punishing men under such conditions is that the return of suffering for moral evil voluntarily done, is itself just or morally good
– For retribution to be fair
o State must have authority
o Must be possible for people to deserve it
§ Moral culpability
o State must be able to make proportional
– Two essential questions in retributivism
o Does the person deserve it?
o What is proportional?
– Retr

ou need another reason
– EX: rapist who becomes impotent
o Probably would not punish under mixed theory
o Need to be culpable before punish, cannot just punish to be useful, must deserve it, but you still don’t have to punish
– Should S and D be punished for cannibalism?
o Strict Retributivistà kill them
o Mixed Theoryà specific deterrence? Do people calculate rationally?
– Michael Moore, Law and Psychiatry
o Test to see if you are a mixed theorist
§ D forcibly rapes and robs a woman. After rape and robbery, D some how is made so he has no desire to rape and no need to rob in the future, and is thus, to a reasonable degree of certainty, not a threat in either category. Also, there is a way to deter people in the future, without ever punishing D. Should D be punished?
· If you think D should be punished—not a mixed theorist!

– Punish in order to encourage others not to commit crimes
– General Deterrence—punish crime so population at large will not do it
– Specific Deterrence—punish crime so specific group of people will not do it
– Assumes word gets out that authority punishes
o For deterrence to work, people must think they are likely to get caught and punished
– Legitimacy depends on whether criminals are rational actors and act based on how the system works
o Economic approach posits that potential criminals consciously or subconsciously calculate costs and benefits, even in context of crimes of passion
o Others believe criminals do not calculate at all, or calculate in bizarre ways, ignoring ordinary sorts of costs and benefits
– If a criminal law rule is to deter violators, 3 prerequisites must be satisfied
o The potential offender must know the rule
o He must perceive the cost of violation as greater than the perceived benefit
o He must be able and willing to bring such knowledge to bear on his conduct decision at the time of the offense
– Criminal law has as one of its legitimate and central aims to make men moral
o Not just to protect from harm, but to make people not the type to commit crimes
o Deterring from people becoming certain type of person is behind a lot of laws
§ EX: anti-sodomy statutesàdidn’t want people to be the type to commit sodomy
– How do rational actors respond to the threat of punishment?
o It is assumed that crime can be deterred by ensuring that its expected costs exceed its expected benefits
o EX: the income effect
Severe punishments are intended to induce rational actors