Reitz - Criminal Law - Spring 2005 - Outline

Reitz - Criminal Law - Spring 2005 - Outline - MPCs are not...

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* MPCs are not statutes –just a recommendations (by the American Law Institute - same people who write restatements) * Actus Resus – guilty act / culpable act * Mens Rea – guilty state of mind **Always think about what the other available lesser charges would be. General practice – jury will be instructed as to every lesser included charge as long as the facts fit the application of the lesser included charge The two levels of Criminal Law: (1) nuts and bolts, litigation perspective, what lawyers and judges have to think about in a ct room, close analysis of statutes, the source of all crim law is a statute, the exact black letter of the law is essential, must be exact: (2) policy analysis, looking at how different jurisdiction approach different criminal doctrines, thinking about which possibilities are better/best, Types of defenses Ds make: Gov hasn’t proven it’s case Affirmative defense – even if gov proves all it needs to, I have affirmative defense (insanity, self-defense, necess) Theories of Punishment : Retribution Theory (punish b/c they deserve it / backward looking) Based on: concepts of law and fairness; religion, natural law, moral instinct (Jeffery Murphy said it was based on morality) (Lex tellianas-an eye for an eye-punishment should match crime); philosophy. o Retributive —looks to the past and not the future, and rests solely upon the foundation of vindictive justice Retribution —theory of punishment that a criminal must be punished for the “wrong he has committed” Act Based : the punishment should respond to the crime that the D committed, each person who commits same crime gets same punishment, pun. depends on crime. Under this theory there is still some calculation as to what a crime is worth, what is appropriate for each crime?, moral judgments vary widely, moral fragmentation Harm-Based : pun. should vary on how much damage the criminal has caused, based on the harm that was caused by the act (ie: shooting at cop and missing and shooting at cop and killing him) - he killed a guy so the only response is death penalty Culpability-Based : pun. based on the Q of why did the criminal do what he did?, depends on blameworthiness, - he is to blame and they deserve to be punished Biographic : based on everything that can be possibly know about the D before the pun. sentencing, how bad/good is the person based on the whole picture of their life, pun should reflect entire history of a D’s life, a sense of the whole of the person. The CA 3 strikes statute could be an example: persons convicted of rather minor offences are sentenced to 50 yr sentences just b/c they have a prior record. Criticisms: o Hard to explain how punishing the criminal makes up for the crime o Requires deciding proportionality (may be arbitrary) o Morality argument—morality hasn’t always been moral Is the judicial system the place to decide morality?
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