SOME BASIC ISSUES IN
I. A BRIEF INTRODUCTION TO CRIMINAL LAW
A. Felonies vs. misdemeanors: Modern criminal statutes typically divide crimes into two broad categories: felonies and misdemeanors. A good general rule, at least for state as opposed to federal crimes, is that:
- a felony is a serious crime that is punishable by at least one year in a state prison; and
- a misdemeanor is a lesser crime for which the maximum penalty is either: (a) incarceration for less than a year, typically in a city or county jail rather than in a state prison; or (b) a fine or (c) both.
B. Theories of punishment: There are two main philosophies about what the purpose of criminal law should be, often labeled “utilitarianism” and “retributivism.”
1. Utilitarianism: The basic concept of utilitarianism is that society should try to maximize the net happiness of people – “the greatest good for the greatest number.” Utilitarians cite the following as the narrow objectives that a system of criminal law and punishment should try to achieve:
- Most importantly, the utilitarians stress “general deterrence.” That is, if D commits a crime, we should punish D mainly in order to convince the general community to avoid criminal conduct in the future.
- Next, the utilitarians seek “specific deterrence” (sometimes called “individual deterrence”). That is, if D commits a crime, we should punish D to deter her from committing additional crimes in the future.
- Lastly, the utilitarians stress “rehabilitation.” That is, the criminal justice system should try to prevent D from committing further crimes not by causing him to fear the pain of further punishment in the future but by educating him or otherwise “reforming” him.
2. Retributivism: Retributivists, on the other hand, believe that the principal – maybe even the sole — purpose of the criminal law should be to punish the morally culpable.
a. Deterrence not principal focus: Retributivists, because of their focus on moral blameworthiness, do not regard either general or specific deterrence as being very important objectives to be served by the criminal law.