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Criminal Law
Wayne State University Law School
Morrison, Adele M.

Theories of Punishment
The purposes of criminal law – in general trying to steer conduct away from the undesirable.
-Common Law
Justifications for punishment – stem from moral philosophy
-Consequentialist – Actions are only morally right if they achieve desirable consequences.
-Utilitarinist – The action that provides the best good for the largest amount of people is morally right.
-The point of punishment is the larger good. What is the result?
-Safety for society—not committing other crimes.
-Seek general, specific deterrence
-Seek rehabilitation
-Non-Consequentalist – Actions are morally right or wrong in themselves, regardless of consequences.
-Retributivism – Actions in themselves are inherently morally good or morally bad.
-Do not regard deterrence as being important
-Do not regard rehabilitation as being imoprtant
Types of punishment
-Incapacitation – rendering harmless to society a person otherwise inclined to crime
-Retribution – Intentional infliction of pain and suffering on criminal to the extent that he deserves it because he willingly committed crime
Assaultive – an eye for an eye
Protective – protecting people from the wrongdoer
Vindivation – even score for the victims
-General Deterrence – Punishing someone for their misdeeds, you deter society in general from committing the offense, less will suffer the same fate
-Specific Deterrence – Punish someone to deter that individual from committing the same offense in the future
-Rehabilitation – The acquisition of skills or values which convert a criminal into a law abiding citizen. Falls under the umbrella of utilitarinism.
Regina v. Dudley and Stephens – There were prisoners aboard a ship. Dudley, Stephens, Brooks and Parker. They were out at sea for a number of days without good or water. They proposed that lots should be cast, but then decided against it. Dudley proposes to kill the boy, Stephens agrees and Brooks dissents. Dudley kills him and then he and Stephens eat him.
-There was a special pardon pre-arranged (footnote)
But sentence would have been death
Reasoning: there shouldn’t be a complete separation between morality and law. If you justify this killing, then that’s what you would be doing.
We should set our criminal codes as a higher bar.
Model Penal Code
Drafted by the American Law Institute (ALI) in 1962
You don’t see retribution in the model penal code
The reform movement out of which it came was geared towards rehabilitation.
-Not directly binding
Common Law / Rise of Statutes –
-Originally in England, criminal law was common law.
-Today, stautes are the sole or overwhelmingly principal source of common law
-Most states have abolished common law crimes
-MI still recognizes common law crimes as a supplement.
-When a statute uses a term that has a tightly-defined meaning at common law, the court will generally use its common-law meaining.
The experience of Lorton Prison
Retribution – An eye for an eye, oldest measure of punishment
-Now termed “proportional puishment.”
-Malum in se – a thing bad in itself
-Malum Prohibitum – bad because it is defined as illegal
-Becker asks, is it proportional for those who pullote water and kill to get community service?
-Should there be the same treatment and conditions for vastly different cries?
General Deterrence
-Convicts dismiss this—it just doesn’t happen
-Offenders discuss that it is worth the risk
-Used to be sole purpose of prison
-Escape: prisoners don’t believe escape to be difficult
-No transfer for killing or beating another prisoner, so they do it all of the time
-Prisoners unsure if the prison or streets are more dangerous. When they leave there is no place to hide.
Specific Deterrence
-You can’t institutionalize a person – familiarity and normalizing of prison v. the street
-Specific deterrence fails miserably when person becomes a refugee
-Instead of deterrence, offenders are determind to find a new way to commit crimes
The only deterrents are
-Back out, Back in
-Low paying jobs
Self-medication for depression
-Hard to fit back into family
People v. Suitte – Suitte pulled over for a traffic violation, he was carrying a unlicens

attorney essentially asks for jury nullification. Juror #10 indicaetd he believed law is wrong and would not discuss. Juror is dismissed.
Ct appeals judgment affirmed.
A jury that disregards the law and instead reaches a verdict based upon the personal views and beliefs of jurors violates our nations most basic principles.
Paul Miller – Race Based Nullification
African Americans must engage in “outside” and inside criminal self help
Outside = community building, mentoring, tutoring,
Inside – Prosecutorial discretion, selective jury nullification for “victimless crimes”
Leipold – Rebuttal
Justice system is imperfect and has problems with race, but nullification not the solution
If black jurors do so they won’t be seated
This would be a race-neutral pre-emptory strike
Juries incapable of making reasoned nullification decision at trial—not given all info necessary
Statutory Interpretation
US v. Dauray – Found loose photos of child porn in Dauray’s car. The defense was put forward that because they were loose photos they did not fit the staute. He has three pictures which is potentially less than statutory requirement.
-Associated terms: try to see what “other matter means in other statutes”
-yields nothing
-Statutory Structure: other parts of stautue specifically mention “any visual depiction”—so the gov’t could have specifically prohibited ANY pictures if they wanted to, but gov’t could counter that child porn is most harmful.
-Avoiding absurdity
-Legislative HistoryàLegislative intent
Therefore applies Rule of Leinty – look at it in the D’s facor, is a construct of statutory interpreation.
Rule of Leinty should not be applied