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O VERALL S TRUCTURE OF THE COURSE : 1. Fundamentals: questions 2. Elements of a crime: actus reus, mens rea, causation, and social harm 3. In practice: homicide and rape 4. General Defenses: when is conduct that leads to harm not criminal? 5. Attempt: when is conduct that does not lead to harm still criminal? 6. Accomplice: when is one liable for the criminal acts of another? F UNDAMENTAL Q UESTIONS FOR C RIMINAL L AW 1. Why the criminal law? Why do we punish? What purposes does punishment serve? 2. Who should we punish? Who are the criminals? What is a crime? What is not a crime? What distinguishes blameworthy conduct from other non-blameworthy conduct? 3. How much should we punish? 1) U TILITARIANIST : a) Is this act a crime : step into shoes of person who is accused at time and moment of crime did this person choose the path of lesser harm? focus on consequences; path of less harm; look forward cares about the past only to the extent it will impact the future b) If so, should we punish : step into shoes of sentencing judge any purpose to punishing: punishment in itself is a harm, must be outweighed by a benefit (future goals) i) General deterrence : D is punished in order to convince the general community to forego criminal conduct in the future; object lesson to the rest of the community ii) Individual/specific deterrence : mean to deter future misconduct from D (1) Incapacitation (2) Intimidation : upon release, D’s punishment reminds him that if he returns to a life of crime, he will experience more pain. iii) Reforms/Rehabilitation : treatment as opposed to jail meant reform D c) How much? Punishment proportional if i) the greater the profits from a crime, the greater the punishment ii) the more aggravated crimes should have greater punishment to encourage minimization of crim e iii) punishment should never be excessive 2) R ETRIBUTIVIST : a) Is this act a crime : look at free will involved (look at context), if there was affirmative choice to do harm that person is morally culpable; dual premises: humans possess free will + punishment is justified when it is deserved b) If so, should we punish : i) Positive retributivist : always punish even if no societal benefit (if nuclear holocaust tomorrow kill everyone of death row); punish because person is guilty, they deserve it (culpable) (1) Assaultitive: deters private vengeance and send symbolic message of general deterrence; it is “morally right to hate criminals” right to hurt them back; treat criminals like “noxious insects to be ground under the heel of society” (Stephen) (2) Protective : criminals have right to be punished, restoring moral equilibrium btw criminal and society; Locke violating social compact; obligation/duty to punish punish to restore equilibrium (Morris) (3) Victim-oriented : reaffirms the value of value of victim and restores equilibrium between criminal and victim; room in the criminal law for forgiveness and mercy (Hampton) ii) Negative retributivist : before punish must make sure actually guilty; morally wrong to punish an innocent person even if society would benefit 1
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