Class 4 – What to Punish

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?

Do: Whatever you need to do to be prepared to actively discuss these issues in class

In Class:  Legislative Problem

Think about the following questions:

1. What other factors might have affected our thoughts on whether to criminalize lying?  Would your willingness to adopt the statute have been different if the offense had been a misdemeanor?  An infraction or violation?  Should the degree of specificity be greater for more serious crimes?  Should there be any threshold before we make something a felony?  If so, what should it be?

2. Do you see why it is so difficult for legislators to adopt criminal statutes? Keep in mind that, in addition to all of the policy 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.

3. 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?