JUSTIFICATION OF PUNISHMENT

·        Forms of Punishment

o       Fine, imprisonment, death

o       Carries with a social stigma, barrier to future employment, and risk of enhanced punishment for further offenses

o       Intermediate Sanctions – home imprisonment, community service

·        Why Limit Punishment?

o       Culpability – “to safeguard conduct that is without fault from condemnation as criminal.”

o       Proportionality – “to differentiate on reasonable grounds between serious and minor offenses.”

o       Legality – “to give fair warning of the nature of the conduct declared to constitute and offense.”

·        Theories of Criminal Punishment

o       Retribution – State-sanctioned punishment done to vent society’s sense of outrage and need for revenge; deserves to be separated from the rest of society

o       Rehabilitation – Separate person to correct them; teach them what is acceptable so that upon their return to society, will conform behavior to societal norms

o       Restraint/Incapacitation – Incarcerate to prevent them causing harm during the time of their incarceration

o       General Deterrence – Punishment to deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment.

o       Public Education – Publicity attending the trial, conviction, and punishment of some criminals serves to educate the public to distinguish good and bad conduct and to develop respect for the law

·        Procedural Issues of Criminal Law

o       Burden of Proof – Beyond a Reasonable Doubt

§        Jury typically comprised of 12 members and the vote must be unanimous to be convicted as guilty

o       Government brings case and presents evidence.  Prosecutor does not represent the victim, thus he decides whether to pursue charges or to accept a guilty plea

o       Perfectly acceptable to be charged with a higher charge, but be convicted of a lesser one

o       Starting point for criminal analysis = STATUTE

·        Elements of a Crime

o       Required Elements

§        Actus Reus – a physical act, or unlawful omission by the Δ

§        Mens Rea – the state of mind or intent of the Δ at the time of the act

§        Concurrence in time – the physical act and the mental state must exist at the same time for a crime to occur

o       Absence of the Actus Reus precludes culpability b/c malicious thoughts alone are not sufficient

o       Regina v. Dudley and Stephens – Defense of necessity fails here because choosing who to kill is not democratic.    

§         One cannot consent to be killed b/c it is an offense against the state, not the individual

o       Lawrence v Texas (Supp) – Does the government have a legitimate/objective reasoning to proscribe sodomy and homosexuality as illegal?

§        Shows that the problem between morality and law can cause a conflict in legislative bodies.  Sodomy is MORALLY wrong, but NOT ILLEGAL.