General Criminal Theory

Question 1

What are the two types of crimes?

Answer 1

1) Malum prohibitum

2) Malum in se

Question 2

Malum Prohibitum

Answer 2

Wrong because it’s illegal for example copyright in infringement

Question 3

Malum in se

Answer 3

Inherently wrong in itself

Question 4

What do utilitarian and Retributivist Frameworks do in the criminal law?

Answer 4

Gap fill criminal codes

Question 5

Give a summary of retributive thought

Answer 5

Punish because people deserve it

Backward looking

Question 6

What does Moore have to say about retributivism? (x4)

Answer 6

1) Not an eye for an eye (lex talons)
2) Retributive is not a function of the victims want for vengeance
3) Punishment should be in proportion to the depravity of the crime
4) Moral desert is sufficient reason for punishment

Question 7

Is deterrence important to Moore & durkheim?

Answer 7

No - It is a Bonus

Question 8

What does Durkheim have to say about retributivism? (x4)

Answer 8

• To build Social cohesion
• Punishment is not meant to rehabilitate is meant to express public opinion of wrong.
• criminal law is an expressive act
• That’s why it’s “People v. Smith” not “State v. Smith”

Question 9

Why does a utilitarian punish?

Answer 9

–Because punishment is useful(Benefits outweigh cost)

Avoids despotic oppression If Correctly Implemented

Question 10

What are the three utilitarian justifications for punishment?

Answer 10

Deterrence
Incapacitation of offender
Rehabilitation

Question 11

Who is the classic utilitarian

Answer 11

Bentham

Question 12

What does Bentham Have to say about utilitarian thought?

Answer 12

The purpose of law is to maximize happiness

Crime is deterred by making a crime not worth it via punishment

Question 13

What are the two types of rehabilitation according to Moore?

Answer 13

Rehabilitation benefits society because of less recurring crime
Rehabilitation benefits the offender because they can have a better life

Question 14

Give three points or criticism about rehabilitating offenders as a goal of the justice system

Answer 14

Paternalistic
there are more Deserving groups that actually want to be rehabilitated
Doing something for their own good can lead to unrelated and arbitrary punishment

Question 15

What is one issue with utilitarianism?

Answer 15

If taken to the extreme it could lead to punishment of innocence and disproportionately harsh punishment

Question 16

How does Dudley frame the issues between utilitarian and retributivism?

Answer 16

It highlights the tension between punishing when there is nothing to deter and when there is question about the existence of moral wrong

Question 17

Who wrote the article that said rehabilitation doesn’t work?

Answer 17

Martinson

Later evidence said it does work sometimes

Question 18

What are we not use tort law instead of criminal law?

Answer 18

Very rich and very poor are judgment proof
Some people don’t have someone to sue on their behalf (EX State v Williams)
Tort law has a cap on the severity of the punishment