Criminal Law - Reitz 2005 - A - Criminal Law Outline...

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Criminal Law Outline PHILOSOPHIES OF CRIMINAL LAW Two main theories: o Utilitarian o Retributive Marxist perspective: o Attacks utilitarian theory, saying that crime is caused by how society is set up and we must reform society if we want to reform crime o Attacks retributive theory, saying that the assumption required for this theory is that everyone has an equal place in society, which is not true Major shifts in theory throughout history: o Early 17 th century England : Goal was to terrify people from committing crimes; harsh punishments to show the power of the small government; disproportionate punishments (capital punishment for a misdemeanor) – DETERRENCE o 19 th century American and Enlightenment Europe : Deterrence reformed view of retribution Idea that punishment should be proportionate to the crime scaling punishments Later, idea of reforming criminals o 20 th /21 st century: Some movement away from retribution 1960’s: Medical/psychological concepts medical-rehabilitation model Rehabilitation was dominant 1970’s: Rehabilitation no longer dominant Today, many competing viewpoints Retribution Theory: o A morality based system where criminals are punished because they deserve it o Many different views: Act-based theory: Punishment should respond simply to the crime committed, not to the criminal’s background, so that everyone who commits a certain crime gets the same punishment Harm-based theory: Punishment should vary based on how much damage the criminal has caused Culpability-based theory: Punishment should be determined by what motivated the crime Biographic theory: Punishment should be determined only after looking at the defendant’s total biography and criminal history o Although this theory is often viewed as a unitary theory, moral fragmentation in society leads to very different views and beliefs on what each crime is worth Mixed Theory o Morris’ “limiting retributivism” theory o Because there isn’t going to be agreement on what a criminal deserves, retribution theory should be used to determine the maximum punishment for a certain crime, then the utilitarian theories should be used to determine what is necessary for crime prevention Utilitarian Theories 1
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o These are forward-looking and consequence-concerned o Goal: To reduce future incidences of criminality in both criminals and the general population o Deterrence Theory: This is the oldest and mainline of the utilitarian theories We must always ask whether some incremental change in the criminal justice system will have an effect on behavior in society Any changes must be understood by the general public Research has shown that if the likelihood of being caught for a crime is increased, this will deter more than increasing the severity of the punishment Two types: General deterrence: criminal law should deter general society from
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