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INTRODUCTION Casebook, Pgs. 1-28 Criminal vs. Civil Law How does criminal law differ from civil law? Who institutes proceedings? What types of punishment? Is it a purely nominal distinction? What does Professor Hart say? Proof Beyond Reasonable Doubt Note 1, pg. 10 Do you agree with Justice Harlan? Do you agree with Blackstone? Note 4, pg. 12 Which instruction is most pro-defense? Which is most favorable to prosecution? Which one makes the most sense? Owens v. State If you were a juror in this case, would you have voted to convict? If you were a judge on the court of appeals, would you have affirmed? How does the juror’s role differ from the appellate judge’s role? Jury Nullification What is jury nullification? If you were called for jury duty, would you consider nullification? Never? Sometimes? In what circumstances? Should judges inform juries of their power to nullify? Why or why not? Theories of Punishment Casebook, Pgs. 29-48 Justifications for Punishment What is the main difference between utilitarianism and retributivism? Utilitarian Justifications Deterrence Incapacitation Rehabilitation Justifications (cont.) Retributive Theory Negative – Don’t punish innocent people Positive – Duty to punish guilty people Be prepared to discuss the following: Note 2, pg. 32 (sexual predators) Note 2, pg. 40 (Kant) Model Penal Code Review MPC Sections 1.02(1) and 1.02(2). Is the MPC retributivist, utilitarian, or both? First Hypothetical Consider note 3 on page 37 Can the sheriff’s action be justified on retributive grounds? Can the sheriff’s action be justified on utilitarian grounds? Is the utilitarian argument persuasive? Second Hypothetical Consider note 3 on page 47 Should Atkinson be punished? What would a utilitarian say? What would a retributivist say? Assaultive theory? Protective theory? Incarceration Statistics Consider the statistics on pgs. 29-30 What inferences can you draw about the reasons why people are punished in the U.S. today? Do you believe that incarceration is morally justified in most cases? Why or why not? Penal Theories in Action Casebook, Pgs. 48-66 Queen v. Dudley & Stephens Should Dudley and Stephens have been punished? Why or why not? Who should decide? The legislature? A judge? A jury? People v. Du Be prepared to make a persuasive argument in favor of a long prison term Be prepared to make a persuasive argument in favor of probation, rather than prison People v. Du (cont.). What factors should the judge consider in evaluating competing arguments? The interests of the victim’s family? The interests of the defendant? Broader societal interests? Other? What would you do if you were the judge? Why? Model Penal Code Review MPC Sections 1.04, 6.01, 6.06, 6.08, and 6.12 Does the MPC shed any light on the problem confronting the trial judge in People v. Du? U.S. v. Gementera Are you persuaded by the majority that the punishment at issue was imposed for a legitimate purpose? Assuming that there was a legitimate purpose, was the specific punishment at issue reasonably related to that purpose?
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