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Criminal Law
Wayne State University Law School
Henning, Peter J.

–Theories of Criminal Punishment
[A] Utilitarianism
[1] Deterrence – The utilitarian theory is essentially one of deterrence – punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals.

Utilitarians consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence. When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation).

[2] Rehabilitation – Another form of utilitarianism is rehabilitation (or reform). Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training.

[B] Retributivism – Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity.

[C] Denunciation (Expressive Theory) – The denunciation theory – which holds that punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components. Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion.Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him.

Burden Of Proof:
[1] Prosecution’s Burden of Persuasion (the Winship doctrine) – Pursuant to the due process clause, a person charged with a crime is presumed innocent and, to enforce this presumption, the Supreme Court held in In re Winship  that the prosecution must persuade the fact-finder beyond a reasonable doubt of “every fact necessary to constitute the crime charged.” This rule has come to be known as “the Winship doctrine.”

–Interpreting Criminal Statutes:
–Remember, a taking occurs when the D secures dominion over the property, while carrying away requires some slight movement away of the property.
When interpreting, look at:
1.        Legislative intent.
2.        Plain meaning of the statute. Often using dictionaries.
3.        Other interpretation tools include: p. 63
a.        Ejusdem Generis: When general language follows specific terms, this rule limits the general language to the specific terms. Ex: other dangerous weapons. The broad language should be construed narrowly in the specific setting.
b.       Statutory Title: Look at the title to see an indication of what the law is meant for.
c.        Expressio unius est exclusion alterius: When a statute contains a list of acts or circumstances, D’s try to argue this stating that by enumerating the specific items, the legislature intended to EXCLUDE anything that falls outside the list. Items not mentioned were excluded by deliberate choice.
d.       Rule of lenity: The rule that criminal statutes should be interpreted narrowly in order to ensure that a D is not convicted for a crime about which the person may have been unaware. If there are two possible meaning of the statute, both constitutional, lenity controls and the court will interpret the statute favorable to the D.
–Constitutionally vague statutes: A statute can be impermissibly vague for two reasons: 1. It fails to provide people of

session of narcotics, it could not criminalize the status of being an addict, which the Court analogized to other illnesses.
[2] Powell v. Texas – Powell was charged with violating a Texas statute that prohibited drunkenness in a public place. Powell argued that he was a chronic alcoholic and was thus unable to prevent appearing drunk in public and sought relief under the reasoning of Robinson. The Court upheld his conviction, distinguishing the case from Robinson on the ground that Powell was being punished for the act of public drunkenness and not for his status as a chronic alcoholic.
[E] Model Penal Code – Similar to the common law, MPC § 2.01 requires that criminal conduct include a voluntary act. It does not define the term “voluntary,” but Comments list bodily movements that are involuntary: reflexes, convulsions, conduct during unconsciousness, sleep, or due to hypnosis, as well as any conduct that “is not a product of the effort or determination of the defendant, either conscious or habitual.” 
[A] Common Law – Subject to a few exceptions, a person has no legal duty to act in order to prevent harm to another. The criminal law distinguishes between an act that affirmatively causes harm, and the failure of a bystander to take measures to prevent harm. 
[B] Common Law Exceptions to the “No Duty to Act” Rule
[1] Duty Based on Status Relationship – One may have a common law duty to act to prevent harm to another if he stands in a special status relationship to the person in peril. Such a relationship is usually founded on the dependence of one party to the other – e.g., a parent to his minor child – or on their interdependence – e.g., spouses.