Crim Law Outline

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Criminal Law Outline

Professor Haque

Power to Criminalize and Punish

* Utilitarian: Humans act rationally and will avoid criminal activity if the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal rewards)

* Forward looking

1) Punishment serves deterrence by incapacitation and intimidation

2) Punishment may reform/rehabilitate the wrongdoer

3) Different forms:

A. General deterrence – An individual D is punished in order to convince the general community to forego criminal conduct in the future.

B. Individual deterrence – D’s punishment is meant to deter future misconduct by D (accomplished by incapacitation or intimidation).

C. Rehabilitation / Reform – Although goal is the same - to reduce future crime – advocates of this model think that punishment may help to reform D so his wish to commit crimes will be lessened.

* Retributivism: Punishment is justified when it is deserved. Expression of societal outrage.

* Backward looking

1) It is morally right to hate criminals

2) Punishment is a means of securing a moral balance in society: criminal enjoyed benefits of system rules without accepting the burden – and owes a debt

3) Different forms:

A. Assaultive Retribution – B/c criminal has harmed society, it is right for society to “hurt him back”; treat criminals like noxious insects.

B. Protective Retribution – Punishment is a means of securing a moral balance in society; criminals themselves have a right to be punished / a right to be treated as a responsible moral agent.

C. Victim Vindication – Punishment reaffirms the victim’s worth as a human being in the face of the criminal’s challenge; represents a “defeat of the wrongdoer.”

* Difference between Utilitarianism & Retributivism

* R looks backwards and justifies punishment only on the...