Criminal Law Outline

Criminal Law Outline - Criminal Law Outline - Bobis Fall...

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Criminal Law Outline - Bobis Fall 2002 J. Scroppo I. Introduction A. Basic Questions: 1. Why do we punish our fellow man? Why do we have criminal law? 2. Who should be punished? What kind of conduct should be punished? 3. How much punishment should be given? B. Crime versus Tort 1. What is a crime? Conduct which, if duly shown to have taken place, will incur a solemn and formal moral condemnation from the community. 2. Crimes versus civil wrongs: the feelings and moral stance toward criminals v. tortfeasors 3. Key = social stigma for crimes, not torts C. Why have a criminal law? 1. People rely on the criminal law for protection. 2. It regulates the government's most powerful forces 3. Note: So, the criminal law must be as rational, just, and moral as possible. II. Principles of Punishment A. Justifications of Punishment 1. Utilitarianism: a) General Principles 1) Deterrence A) specific deterrence (1) make an offender afraid to commit crime again, or (2) incapacitate the offender so he cannot commit crime again (3) rehabilitation (4) Note: utilitarians consider a person’s past history in assessing the specific deterrence B) general deterrence 2) Note : Sometimes there is a benefit in inflicting a desert-type punishment because it preserves the people's faith in the system. This is an important utilitarian goal. Greater faith in the legal system is a social good. b) Method 1) Compare the costs of the punishment with the benefits of the punishment 2) Utilitarians do not punish if there is no overall gain achieved by the punishment 3) There must be a net benefit, because punishment is itself a negative phenomenon. 4) Note: Utilitarians engage in social research to try to demonstrate the benefits of punishment. c) Assumptions 1) people are rational and calculating and will do their own cost-benefit analysis in deciding their conduct d) Approach to Specific Cases 1) case A) General Deterrence? Punishment would not result in general deterrence, because it would not work to stop a person situated similarly to the defendants. Most people would choose to live and take their chances in court. B) Specific Deterrence? If freed, would the defendants act similarly in the same situation? Yes, so there is specific deterrence only during their incapacitation. C) Conclusion: Utilitarians would not choose to punish Dudley and Stephens. 2) Du case A) Specific deterrence: Ms. Du is dangerous because she is impulsive. Future dangerousness is an important utilitarian consideration B) General deterrence: Ms. Du’s remorse is irrelevant for the general deterrent effect e) Criticisms of utilitarian theory 1) it would allow the punishment of an innocent person if the benefits outweighed the costs (sheriff hypothetical) 1
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Criminal Law Outline - Bobis Fall 2002 J. Scroppo A) Utilitarian counter-argument (1) The price of punishing an innocent person is a general loss of faith (2) The real perpetrator is not brought to justice (3) The individual sacrifice of an innocent person may not result in much benefit
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This note was uploaded on 02/18/2008 for the course LAW 1010 taught by Professor Cavanaugh during the Fall '00 term at St. Johns Duplicate.

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Criminal Law Outline - Criminal Law Outline - Bobis Fall...

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