Criminal law-Ramsey- Spring 2005

Criminal law-Ramsey- Spring 2005 - 12 Steps 1 Detection 2...

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12 Steps: 1. Detection; 2. Arrest; 3. Booking; 4. 1 st appearance/formal charge; 5. Preliminary Hearing; 6. Grand Jury Indictment or Information; 7. Plea Bargaining; 8. Arraignment → ∆ makes plea; 9. Pretrial Motions; 10. Trial → Verdict; 11. Sentencing; 12. Direct Appeal/ Habeas Corpus Washington v Blakely : Judge cannot raise penalty unless jury has heard the issues Purposes of criminal law – Public, statutory regime - Society is a victim, even if private citizen is harmed - Less focus on restitution that tort law - Federal crimes o Commerce crimes o Crimes in federal land o Military crimes o Crimes that violate Federal codes - State crimes o Vary from state to state o Generally concerns street crimes – property - MPC – written by American Law Institute o Not adopted formally, but is an example of uniform US criminal code Why do we punish? - Retribution v Utilitarian o Retribution → people deserve punishment → based on the past harm o Utilitarian → punishment serves a social good → based on the future benefit Would be OK to punish an innocent if it stopped other people from committing the crime – Moore Or pretend to punish actor when you know they will never commit the crime again (pretend makes society happy and deters others) - Retribution → just deserts → punish only because offenders deserve it o How does society view the crime? But, should be punished even if no victims wanted it – Moore What if a person (hobo) does not receive the benefits of society - Morris o Doing exact equivalent in return could be over or under punishment, depends on circumstances o Not eye-for-an-eye so much as finding out if a punishment is deserved – Moore Then can decide how much punishment is appropriate Should punish even if the victim doesn’t want it o Satisfies a social need Utilitarian gain (benefit to society) can be seen as a bonus Mixed theory – punishment must achieve social gain and punish deserving offenders Punishment promotes social cohesion through condemnation- Durkheim Punishment shows that society condemns crimes - Feinberg o Retribution and capital punishment Kant – murderers should be executed o Kant – no one should be punished more than they deserve merely for the benefit of society 1
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Punish only to the extent that the social contract has been violated Reciprocity of advantage o Those who disobey law, gain unfair advantage over those who don’t Imprisonment corrects this advantage - recirpocal o If someone can not make rational choice, is desert just? – Morris - Deterrence → only goal is prevention But, assumes some calculation goes into deciding to do crime At what point does a drug addict calculate Need to get there before it is too late o Returning to status quo may be insufficient o Specific deterrence – on that specific actor o General deterrence – deters potential offenders in general community o Other problems Shaming – can lead to an increase in marginalization
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