Criminal Law

retribution -- punishment by way of desert of blameworthy conduct

-naive retributive theory applied consistently without regard to utilitarian concerns does not create substantially different results than a theory applying utilitarian concerns

-compare to reparative justice in tort, where the effect on one party necessarily affects the other parties (victims aren't differently affected depending on criminals' punishment)

-for example, insanity is a more successful excuse in criminal law than in tort (where not shifting loss to an insane tortfeasor implies causing loss to the other parties)


deterrence -- deciding punishment in order to affect future behavior, of the punished person, others, or both

- criminal activity is market-bypassing behavior, and thus increases the possibility that a property rule right will be transferred in violation of [Kaldor-Hicks efficiency].
- criminal sanctions are more appropriate where B is low relative to PL and L is very high
- the transaction costs of criminal apprehension and punishment are very high, so the most efficient methods of deterring nonviolent behavior (or eliminating violent behavior, on the same justifications as strict liability in tort) create a low-risk lottery for criminals but with high punishments, sending a clear deterrent signal to criminals about the nature (time and wages lost) and likelihood (through the crimes of attempt, conspiracy, and strict liability doctrines, which increase the scope of action creating a risk of punishment)
- criminal law can use other methods to increase the likelihood of detection and thus the expected cost of criminal behavior (so that ex. the risk of complicity liability, attempt mistake liability and corporate liability depends on the likelihood of success) without increasing the transaction costs of punishment
- insanity defense prevents inflicting needless disutility on undeterrable actors


incapacitation

rehabilitation

intent
knowing
recklessness
criminal negligence
strict liability crimes

homicide

murder

capital murder
felony murder

manslaughter
negligent homicide
rape

larceny (1) a trespassory taking and carrying away of a chattel (2) from the possession of another with (3) the intent to permanently deprive the owner of that property.
fraud

mail fraud (1) intent to defraud and (2) the actus reus of mailing material for that purpose.

extortion obtaining property by a wrongful use of fear, induced by a threat to do an unlawful injury.
robbery: taking personal property in another's possession against his will, accomplished by force or fear
burglary (1) breaking and entering a residence with (2) intent to commit a felony

attempt
solicitation
conspiracy
complicity

justifications

consent
self-defense
necessity
duress

excuses

insanity