Class 4 – What to Punish/The Limits of Criminalization

Prepare:

Read Dressler pages1-3, 27-31, M.P.C. § 1.02(1)

Think about the following questions:

  1. How much criminalization is appropriate?
  2. What harms should the criminal law protect against? What risks?
  3. Are there some types of conduct that we want to discourage, but that should be beyond the reach of the criminal law? Why? What are the concerns?
  4. Should all conduct that is immoral be criminal? Should conduct that is not immoral ever be criminal? Should morality matter at all? Who determines what is and is not "moral"?
  5. Are there costs to criminalization that outweigh the benefits of treating undesirable behavior as a crime? What are they?
  6. What should legislators consider when they are asked to create new crimes?

Read Dressler, pages 33-48, 55-62

Think about the various limitations on the power of legislatures, the courts, and the executive to create and define crimes and impose punishments. What is the source of these limitations? How do these limits apply in actual cases? How, if presented with a statute that perhaps goes beyond acceptable limits, would you articulate arguments to challenge it?

Do: Try one or more of the following problems to see how the principles we’ve read about apply to actual statutes. What kind of arguments can you make on behalf of the defendant? the government? Would you expect them to succeed?

In Class:  Legislative Problem and Exercise

Reflect:

Think about the following questions:

1. Do you see why it is so difficult for legislators to adopt criminal statutes? Keep in mind that, in addition to all of the issues we discussed, they are confronted with many political issues as well that make their choices even harder, and often they are responding to a situation or a perceived crisis that needs a resolution.

2. Take a look at how the Missouri legislature and Congress have dealt with the criminalization of lying (at least in part). Do these efforts adequately address the concerns identified in class?  What other types of lying ought to be criminal?  Why?  What types of lying should we leave to be resolved between the individuals involved?

3. Thanks to Mr. Ludlam for being a good sport in our class exercise.

4. Are you satisfied with the limits on criminalization identified in class and in the readings?  Do they adequately serve the purposes of punishment while providing adequate protection for individual rights?  

5.  Should these limits be built into the definition of criminal statutes?  How?  By better defining conduct?  By better defining other terms?  By focusing on results as opposed to risks?  By focusing on state of mind?  How does looking at these limits help us in thinking about legislative definition of crime?

6. We’ve seen that the wording of a statute may be so ambiguous that it fails to provide adequate notice as to what conduct is prohibited or adequate limits on discretion in enforcement. In such cases, the statute may well be unconstitutional. But statutes may appear clear on their face yet have significant ambiguity.  How should such statutes be handled? By what means can such ambiguity be resolved?

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