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Septemeber 4 Notes and Briefs - September 4 2008 Chapter 1...

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September 4, 2008 Chapter 1 Introduction: Setting the Stage A. Nature, Sources and Limits of the Criminal Law (p. 1-6) Henry M Hart Jr.- The Aims of the Criminal Law The characteristics of the method of criminal law: Operates by a series of directions or commands, put in general terms, telling people what they must and must not do. Most of them are must not, or prohibitions, which can be satisfied by inaction (Do not murder, rape or rob). Some are musts, or affirmative requirements, which can be satisfied by taking on specifically or relatively specifically (File your income tax return). The commands are taken as valid and binding upon all those who fall within their terms. They speak to members of the community, in the community’s behalf, with all the power and prestige of the community behind them. The commands are subject to one or more sanctions for disobedience which the community is prepared to enforce. What distinguishes a criminal from a civil sanction is the judgement of community condemnation which accompanies and justifies its imposition. o Crime : (the law prohibits and makes punishable, a public wrong) is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community. o Crime has changed over time (there was no such thing as DUI in the 60’s). A crime cannot violate the Constitution. o Example: A guy was falling off a boat and swore, he was facing criminal charges because he can’t swear in front of women and children. This is not right because it violates the freedom of speech and discrimination to men. The method of criminal law involves in addition to the community condemnation (public consequence) of antisocial conduct, the threat (and on due occasion, the imposition) of unpleasant physical consequences, commonly called punishment (consequences of conviction for a crime). o Today, treatment has become a fashionable euphemism for the older word, punishment. o There is a vial difference between the situation of a patient who has been committed to a mental hospital and the situation of an inmate of a state pen. The core of the difference is precisely that the patient has not incurred the more condemnation of his community, whereas the convict has. o Punishment has to fit the crime according to the Constitution (8 th amendment, Cruel and Unusual Punishment) Example: Death penalty is cruel and unusual punishment for the rape of a child because death penalty is only done if you kill someone (crime has to fit the punishment). Determine proportionality of punishment through the 8 th amendment. o Why do we punish? Retribution- on behalf of the victim towards the criminal Deterrence- to prevent that offender from re-offending and to deter the general public (Ex. Speeding tickets, always slow down when we see a cop) Incapacitate- protect them from society and make sure they can’t hurt anyone else
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Rehabilitation- make the criminal better, comes from quakers, pioneered solitary
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