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Criminal Law - Mike Shordine Sp2006

Criminal Law - Mike Shordine Sp2006 - Criminal Law Outline...

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Criminal Law Outline Prof. Simons, Spring 2006 Mike Schordine Sources of Criminal Law Common Law o All felonies punishable by death o Also had misdemeanors Legislation o NY: A-E Felonies, A-B misdemeanors, violations o MPC: 1-3 Felonies, misdemeanor, petty misdemeanor States o Cali – codified common law o NY: mixed MPC and common law o 40 states have adopted large portions of the MPC. But it isn’t the law anywhere (always modified) Principles of Punishment Utilitarian (Bentham) o Forward-looking, consequentialist, crime prevention o The good of the many o Punishment itself is an evil, utilitarians want the minimum punishment that will get the job done o Why punish? General Deterrence: deter other people who would commit crimes Specific Deterrence: deter that person from committing other crimes Incapacitation: can’t commit crimes while incarcerated Rehabilitation: teach person to be better o Act-Utilitarianism – in any situation do the act that results in the greatest good o Rule-Utilitarianism – in all situations, follow the rule that does the greatest good o Goals: to protect society Retributivism (Kant) o Backward-looking, Just deserts, people get what they deserve o Looks at harm caused and culpability of defendant o Does not care what consequences of punishment will be o Positive Retributivism: desert allows punishment o Negative Retributivism: desert requires punishment o Remorse – may lessen retributive desert. o Goals: to punish defendant Punishment Sentencing Systems: o Indeterminate: wide judicial discretion, parole board makes ultimate decision on length o Indeterminate (NY): Judge assigns maximum sentence, defendant is eligible for parole after 1/3 of the sentence. o Determinate: Federal system. No parole. Judge has little discretion. Elements of crimes have point values that make up sentence. Expressive Theory of Punishment:
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o Punishment is justified as a means of expressing society’s condemnation. o Pays attention to the message that is sent – educates individuals – utilitarian o Victim vindication – expresses society’s outrage - prevents private vengeance – utilitarian o Stigmatizes offender – retributive o Says that wrongdoer deserves punishment – retributive. Proportionality: o To consider how bad a crime is, we consider harm, culpability, dangerousness o 8 th amendment (cruel and unusual punishment) is a check on proportionality o Coker v. Georgia: SC says that a punishment is cruel and unusual if: it “makes no measurable contribution to acceptable goals of punishment and hence is nothing more than purposeless and needless imposition of pain and suffering” or It “is grossly out of proportion to the severity of the crime” Death penalty is not appropriate for rape, Coker says. Policy reason: we want an incentive for rapist not to murder victim
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Criminal Law - Mike Shordine Sp2006 - Criminal Law Outline...

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