Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview

see, in the end, that the concept of punishment must fend off confusion from many directions. It must hold its own against those who try to obliterate the distinction between punishing crime and imposing other sanctions for the sake of protecting the public. The concept must also secure its place in opposition to purely private institutions, such as wreaking vengeance and securing compensation for injury. The concept of punishment must straddle the delicate line between the public and the private, between the motive of protecting society and the motive of promoting the welfare of victims. The task of thinking lawyers is keep their focus on this delicate line and to cultivate the correct conceptual account of punishment.


Notes
1.
Kennedy v. Mendoza-Martinez, 372 U.S. 144 ( 1963); Helvering v. Mitchell, 303 U.S. 391 ( 1938).
2.
See generally Comment, The Concept of Punitive Legislation and the Sixth Amendment: A New Look at Kennedy v. Mendoza-Martinez, 32 U. Chi. L. Rev. 290 ( 1965). On deportation, see Fong Yue Ting v. United States, 149 U.S. 698 ( 1893).
3.
In re "Gault", 387 U.S. 1, 27 ( 1967).
4.
387 U.S. 1 ( 1967).
5.
The same tension between motive and impact shapes the debate about the intrusions that constitute "searches" under the Fourth Amendment. Cf. Plitko v. State, 1 Md. App. 35, 272 A.2d 669 ( 1971) (good-faith inventory search consistent with Fourth Amendment) with Mozzetti v. Superior Court, 4 Cal. 3d 699, 484 P.2d 84, 94 Cal. Rptr. 412 ( 1971) (impact of search prevails over motive, Fourth Amendment applicable).
6.
This reservation in Gault was affirmed in McKeiver v. Pennsylvania, 403 U.S. 528 ( 1971).
7.
See e.g., In re Lynch, 8 Cal.3d 410, 503 P.2d 921, 105 Cal. Rptr. 217 ( 1972) (potential life sentence for second offense of indecent exposure unconstitutional as cruel and unusual punishment); In re Rodriguez, 14 Cal. 3d 639, 537 P.2d 384, 122 Cal. Rptr. 552 ( 1975) (Adult Authority had a statutory duty to set a release date for sex offender serving an indeterminate, potentially life term; the time spent must be proportionate to the crime).
8.
U.S. Sentencing Guidelines Manual ( 1995).
9.
My mind was first opened to this issue by reading "The Rehabilitative Ideal", in Francis Allen, The Borderland of Criminal Justice ( 1964). Cf. Morris, "Persons and Punishment", in Herbert Morris, On Guilt and Innocence 31 ( 1976). The issues were kept alive by C. S. Lewis, The Humanitarian Theory of Punishment, 6 Res. J. Judicata 224 ( 1953).
10.
See the quote from Gault in the text supra at note 3.
11.
E.g. Addington v. Texas, 441 U.S. 418 ( 1979) (hearing required before involuntary civil commitment); Heyford v. Parker, 396 F.2d 393 (10th Cir. 1968) (right to counsel).
12.
Mapp v. Ohio, 367 U.S. 806 ( 1960)
13.
See Scott Turow, Simpson Prosecutors Pay for Their Blunders, TheNew York Times

-40-

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Basic Concepts of Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • 1 - Substance Versus Procedure 7
  • Notes 23
  • 2 - Punishment Versus Treatment 25
  • Notes 40
  • 3 - Subject Versus Object 43
  • Notes 56
  • 4 - Human Causes Versus Natural Events 59
  • Notes 72
  • 5 - The Crime Versus the Offender 74
  • 6 - Offenses Versus Defenses 93
  • Notes 108
  • 7 - Intention Versus Negligence 111
  • 8 - Self-Defense Versus Necessity 130
  • Notes 145
  • 9 - Relevant Versus Irrelevant Mistakes 148
  • Notes 167
  • 10 - Attempts Versus Completed Offenses 171
  • Notes 184
  • 11 - Perpetration Versus Complicity 188
  • Notes 203
  • 12 - Justice Versus Legality 206
  • Notes 213
  • Index 215
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