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CrimLawFall07Cheng - I INTRODUCTION A Introduction Theories...

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I. INTRODUCTION A. Introduction / Theories of Punishment 1. Theories of Liability UTILITARIAN JUSTIFICATION General Deterrence - Deterrence to public in general Special Deterrence - Deters the offender Deterrence by stigmatization Rehabilitation - prevent future harm Incapacitation - control dangerous individuals   JUST DESERTS Retributivist - Kantian - deserves punishment ( unfair advantage and right to punishment) DIFFERENT DISTRIBUTION FOR EACH THEORY UTILITARIAN CONFLICT w/DESERT UTILITY OF DESERT Elicits Cooperation and Acquiescence Moral Condemnation as Deterrence Laws as Moral Authority in Unsettles as Borderline Cases Law's Influence in Shaping Society's Norms Compliance Power as Function of Moral Credibility Community's vs. Moral Philosophy's Conception of Desert Community's Shared Intuitions of Justice 2. Bentham - The Theory of Legislation Guidance for exploring issues arising in use of deterrence doctrine— criteria for an incapacitative distributive principle— dangerousness—and for just deserts principle—moral blameworthiness—may be self-evident, at least in general sense, but criteria for a deterrence distributive principle may not be B. The Legality Principle 1. OVERVIEW OF LEGALITY PRINCIPLE Nullum crimen sine lege, nulla poena sine lege No crime without law, nor punishment without law Codification of criminal law (abolishing a common criminal law), so criminal liability & punishment must only be based upon prior legislative enactment of a prohibition that is Doctrines a . Void for Vagueness b. Vague vs. Ambiguousness (Ambiguous not necessarily unconst.)
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c. Rule of Strict Construction / Lenity - default (not in NY) Ambiguity in statute resolved in favor of ∆ Rule of Fair Import - NY Leniency to courts (more fidelity to legislative intent) d. Ex Post Facto Laws No liability prior to enactment of legislation The Rationales a. Procedural Fairness (Notice) b. Effective Deterrence and Improper Over-Deterrence c. Criminalization as a Legislative Function d. Rules of Conduct and Principles of Adjudication e. Avoiding Disparity in Application and Abuse of Discretion Countervailing Interests a. Fostering Inflexibility b. Promoting Technicalities c. Excluding Normative Judgments d. Principle of Analogy e. Legality in Liability vs. Sentencing f. Legality and Function g. Legality in Rule Articulation vs. Adjudication Statutory Interpretation 1) Different language implies a different meaning 2) Catch-all phrase is limited by common factor of items in the list 3) Expression of one thing excludes implication of another 4) Specific controls the general 5) Later controls earlier 6) Legislative Intent II. ELEMENTS OF CRIME A. Actus Reus 1. Any physical act but NOT reflex, unconscious/asleep, pushed 2. Omitting (failing to act): NO DUTY TO RESCUE, unless legal duty, examples: a. By statute (tax return) b. K (nurse/lifeguard) c. Relationship (spouses; parent/child) B. Rape (1) Force (a) penetration - forcible compulsion + something else
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CrimLawFall07Cheng - I INTRODUCTION A Introduction Theories...

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