Theories of Punishment: 1. Utilitarianism- justification is to deter future criminal acts. Has to be more than “they deserve it” a. Forms of Utilitarianism: i. General Deterrence- convince the general community to avoid criminal conduct in the future by punishing ii. Specific Deterrence- deter the individual from committing additional crimes in the future iii. Rehabilitation- help correct the offender, help to get them back into society iv. Incapacitation- remove from society, so that they cant commit a crime 2. Retributivism- lex talionis (an eye for an eye) wrongdoers deserve to be punished and should be graded in proportion to desert a. Moral culpability- there is an explanation for the actor's intent making them “deserving” of crime aka desert b. Types of Retributivism: i. Positive- desert is a condition both necessary and sufficient to justify punishment as much as one deserves even if it would do no utilitarian good such as deterrence ii. Negative- a person can legitimately be punished ONLY if he commits a crime, ONLY in proportion to that crime, and ONLY if doing so produces a world with no crim 3. Mixed/Hybrid- combines Utilitarian and Retributive. a. Utilitarian answers general justifying question (deterring future criminal acts) b. Retributive answers distributive question (who can be punished and how much) Principle of Legality 1. Principle- no crime without law, no punishment without law 2. Lenity Doctrine a. MPC rejected lenity in 1.02(3) 3. Common Law Crimes a. Commonwealth v. Mochan i. Was the statutory language so capacious to put a reasonable person on notice that his language (phone calls) was injurious to the public? Yes 1. Court applied general opened ended principles lacking particularity and specificity b. MPC eliminated CL crimes 1.05(1) 4. Requirement of Previously Defined Crimes a. Ex post facto laws b. Keeler v. Superior Court i. A person must have been provided with adequate notice of the law and that he would lose his life or liberty 1. The power to define crimes is exclusively in the legislative branch a. If judges did it on an ad hoc case by case basis the statute would only be prospective 2. Statutes are not made to reach beyond their plain intent a. The court cannot enlarge the meaning of “human being” because of i. constitutional restraints (due process) and ii. Separation of powers 5. Void-for-Vagueness- requires a penal statute too define the criminal defense with sufficinet definiteness that ordinary people can understand what conduct is prohibited a. In Re Banks i. Constitutional avoidance doctrine: When a statute is susceptible to multiple interpretations the court should adopt the interpretation resulting in a finding of constitutionality 1. Narrow the interpretation to required the mental state of intent and expectation of privacy to avoid declaring statute unconstitutional b. Desertain v. City of Los Angeles i. failure to provide adequate notice of the criminalized conduct to enable the ordinary citizen to conform to the law makes the code void for vagueness (no clear line between innocent and guilty conduct) 1. Two flavors of vagueness making statute unconstitutional a. Fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits b. Authorizes and encourages arbitrary and discriminatory enforcement 2. So broad that it criminalizes innocent behavior and there is no way to know how to conform behavior
