Answering criminal law policy questions

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APHill
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Answering criminal law policy questions

Postby APHill » Fri Dec 10, 2010 5:23 pm

I was wondering what is the best way to answer criminal law policy questions. Professor did not post solutions to previous policy questions. I am thinking describe all potential policy considerations, explain why some of them are commanding, and make a conclusion?

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vanwinkle
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Re: Answering criminal law policy questions

Postby vanwinkle » Fri Dec 10, 2010 5:36 pm

Probably the biggest policy question is about which motivating rationale you use for finding behavior criminal/punishable. There are two different main rationales, moral retribution and social control, and they're sometimes at odds with each other. Policy questions in criminal law will very often touch on this conflict.

If you can see that, as an issue, you can start there. Discuss how (in whatever situation is given) the two rationales would affect the way the law is applied, what defenses each would allow and how much they'd change the outcome, and then finally arrive at the differences in outcome and discuss which might be considered best and whether there's a way to balance or compromise the two.

Example wrote:The insanity defense has evolved as concerns changed. If your main concern is moral retribution, then you don't want to really punish the criminally insane at all, since they're not morally culpable for their actions. You want to find them "not guilty by reason of insanity", get them help so they won't do it again, and then let them free if they can be rehabilitated. But if your concern is social control, then you want to keep people who pose a danger to society locked up as long as possible, and provide incentives for those who are mentally ill to seek help (even commitment) before they harm others. Under those concerns, a "guilty but insane" verdict that ensures long prison sentences acts as a social deterrent and a protection of society from these individuals even after they are declared sane.

After covering those basics, you can run through additional concerns and narrow complications (whether it's practical to set a high bar for proving insanity as a compromise, concerns about effective ways to cheat and get away with murder in the "not guilty" system if your bar for insanity is too low, etc) until you run out of time, at which point you write a nice little summary that answers the question in a single sentence.


I shared my chunk of Crim Law outline related to those issues in this thread: viewtopic.php?f=3&t=139493 That might be a good starting point for you.

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joobacca
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Re: Answering criminal law policy questions

Postby joobacca » Fri Dec 10, 2010 5:37 pm

APHill wrote:I was wondering what is the best way to answer criminal law policy questions. Professor did not post solutions to previous policy questions. I am thinking describe all potential policy considerations, explain why some of them are commanding, and make a conclusion?


at the very least you have to throw in utilitarian and retributitivitiviitssts arguments.
whether you're asked whether a certain person should be punished (like in a case or a hypo) or about "the criminal law" in general, i think you should keep in mind that "the criminal law" is about to deprive someone's liberty.

so perhaps break it down like this: "interest" of society, "justice" to victim and family, and "fairness" to defendant.

what effect will punishing the person have on the person, others in the person's situation, and society?

exploring these issues will help you, i think, see whether there is a proper justification. along the way, things like proportionality should be discussed (but this will probably in your util/retributititisivsi arguments)

edit: also, what vanwinkle provided in the other thread is a really good thing to use. i could have used that on my exam.

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APHill
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Re: Answering criminal law policy questions

Postby APHill » Fri Dec 10, 2010 10:50 pm

My criminal law exam is 50% policy 50% substantive law, 8 hours open book, but maximum submission is 8 pages double spaced. What in you view is the best strategy?




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