LexisNexis Capsule Summary
Criminal Law
Chapter 1
THEORY, SOURCES, AND LIMITATIONS OF CRIMINAL LAW
§ 1.01 Theories of Criminal Punishment
   
[A] Utilitarianism
[1] Deterrence – The utilitarian theory is essentially one of deterrence – punishment is justifiable if, but only if, it is expected to result in a reduction of crime.  Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals.
Utilitarians consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence.  When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future.  When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation).
[2] Rehabilitation – Another form of utilitarianism is rehabilitation (or reform).  Examples of rehabilitative “punishment” include:  psychiatric care, therapy for drug addiction, or academic or vocational training.
[B] Retributivism – Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it.  There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime.  Retributive theory assigns punishment on a proportional basis s
o that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity.
[C] Denunciation (Expressive Theory) – The denunciation theory – which holds that punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components.  Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion. Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him.
§ 1.02 Sources of Criminal Law
[A] Common Law – Common law is judge-made law.  Even when superceded by statutory law, common law may serve to interpret ambiguous statutory terms.
[B] Criminal Statutes – Today, statutory law is the prevailing source of criminal law and essentially has replaced common law.  Although most states have abolished common law crimes, a few have enacted “reception” statutes, expressly recognizing common law offenses when statutory law does not provide a punishment for such offense.  In effect, such a statute “receives” the common law offenses in place at the time of the statute’s enactment.
Generally speaking, statutory law classifies a crime as a felony or a misdemeanor, both of which may be subdivided into degrees. A felony is punishable by death or imprisonment in a state or federal prison. The maximum punishment for a misdemeanor is a monetary fine, incarceration in a local jail, or both. Some jurisdictions also have an additional classification of “violation” or “infraction” for which only a monetary fine is authorized.
[C] Model Penal Code – Although the Code – published by the American Law Institute – is not the law in any jurisdiction, it stimulated adoption of revised penal codes in at least thirty-seven states. Although some state legislatures have adopted only small portions of th
e Model Code as their own, other jurisdictions (including New Jersey, New York, Pennsylvania, and Oregon) have enacted many of its provisions.  Courts, on their own, sometimes turn to the Model Code and its supporting commentaries for guidance in interpreting non-Code criminal statutes.
§ 1.03 Constitutional Limitations on Criminal Law
Various provisions of the United States Constitution impose limits on federal and state legislative action. A state legislature is also limited by its own state constitution, which may place greater restrictions on it than does the federal Constitution.
[A] Limits on Federal Action – The “Bill of Rights” restricts the power of the federal government in its relationship to individuals.
[B] Limits on State Action – The Fourteenth Amendment to the United States Constitution imposes limits on state government. The 14th Amendment:
(1) prohibits states from making or enforcing “any law which shall abridge the privileges or i
mmunities of citizens of the United States”
(2) “deprive any person of life, liberty, or property without due process of the law;” or
defendant(3) “deny to any person within its jurisdiction the equal protection of the laws.”
§ 1.04 Legality
[A] Common Law – A person may not be punished unless his conduct was defined as criminal at the time of commission of the offense.  This prohibition on retroactive criminal lawmaking constitutes the essence of the principle of legality.

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