· Sources for American Criminal Law
o Common Law
o Statutory law
o Constitutional Law
· Limitations of Criminal Law
o Principle of Legality
§ Provides that before individuals can be convicted and punished for engaging in such conduct, it must be legislatively prohibited.
o Doctrine of Void for Vagueness
§ Requires the criminal law to be sufficiently clear so that individuals of ordinary ability can understand what their legal obligations are
o Rule of Lenity
§ Requires a court to construe criminal statutes strictly resolving doubt in favor of the D.
· Burden of Proof
o A preponderance of the evidence
The Purposes of Punishment
· Punishment is suffering (1) purposely inflicted (2) by the state (3) because one of its laws is violated.
· Two camps in which the theories of punishment can be divided.
o Deontology
§ Rightness or fairness of the institution
o Utilitarian
§ Goal of Punishment: Deterrence of those who are thinking about committing crimes
§ Incapacitation of those who if released are likely to commit additional serious and violent crimes.
§ Rehabilitation of those who havealready committed offenses
o Retribution
§ Argues that those who have already committed offences have acted immorally and must be punished for their immoral acts.
· System Usually makes compromises between the two theories.
Deterrence
· Two types of Deterrence
o Special Deterrence
§ Known as deterrence by intimidation
§ Refers to steps takes to dissuade particular offenders from repeating their crimes
§ Presupposes that the actor who offends may desire to commit future violations, but assumes that the costs imposed by the past punishment will discourage fim from continuing his criminal career
o General Deterrence
§ Known as General prevention or deterrence by example
§ Refers to the impact of criminal punishmenton other persons. Idea si that members of the public will be deterred from criminal behavior once they see the consequences suffered by those who commit crimes.
o Deterrence requires that D receive notice of the threat of punishments
· Difference between retribution and deterrence
o Unlike retribution, deterrence is not backwards looking in the sense of exacting vengeance for a crime. Rather, it is forward looking in the sense of preventing or reducing the incidence of future offensive behavior.
Incapacitation
· Objective: Prevention of future criminal acts.
· Incapacitation
o When criminal are deprived of their liberty, as by imprisonment, their ability to commit offenses against citizens is ended.
o Incapacitation works in so long as the offender is incarcerated.
· Once an offender has been convicted and a range of deserved punishments identified, it is proper for judges to rely on predictions concerning the offender’s dangerousness when selecting a sentence.
Rehabilitation
· Metaphor: the incapacitative prison functions as a wearhouse for the prisoner and thereby treats the human offender as a thing. By contrast, the central premise of rehabilitation is the every human life is valuable and that the government has an affirmative obligation to help offenders return to society and live a normal and productive life.
· Theory holds that offenders can be changed into non-offenders if given proper treatment
Retribution
· Retribution function of punishment presupposes that human actors are responsible moral agents who are capable of making choices for good or evil. People who make evil choices deserve to be punished.
· It is essential for the offended to right the wrong or to “pay” for the crime, to erase a debt in which the offender owes society.
· Argues that that persons who choose to do wrongacts deserve punishment, and that it should be imposed on them even if it serves no utilitarian purpose.
· Everyone qualifies as a blameworthy actor except the very young, the very crazy, and the severely mentally retarded.
· Retribution and proportionality
o The degree of wrongdoing involved in such a case does not justify an extreme punishment.
o In the language of retribution, the offender did not deserve to be punished so severely.
o Criminal Law implements the principle of proportionality in two ways:
§ The system grades offenses and punishes the offenders accordingly
§ Principle of proportionality requires some assessment of whether a sentence actually imposed fairly reflects the blameworthiness of the individual wrongdoer and the gravity of his or her crime.
· Retribution as a Limiting Principle
o Retribution requires punishment whether or not the punishment produces beneficial societal consequences
Criminalization
· The Supreme court holds that the Due Process Clause has a “substantive” component that citizens “liberty” against the state’s otherwise broad criminalization power.
· States may not punish adults for intimate sexual activity merely because a governing majority finds the activity morally offensive.
· According to Sir James Fitzjames Stephen complete moral tolerance is possible only when men have become completely indifferent with one another.
· The function of criminal law is to preserve public order and decency, to protect citizens from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others.
· It is not the function of law to intervene in the private lives of citizens.
Effects of Criminalization
· A law which enters into a direct contest with fierce imperious passion, which the person who feels it does not admit to be bad, and which is not directly injurious to others, will generally do more harm than good.
Purposes of Punishment:
-Two usual answers – utilitarianism and retributivism
-Punishment is suffering purposely inflicted by the state because one of its laws was violated.
-What does criminal punishment add to the goals of the legal system?
Two dif. responses: 1. utilitarian ends, such as (a) deterring persons who might be thinking about committing crimes, (b) incapacitating those who if released are likely to commit addl. serious and violent crimes, or (c) rehabilitating those who have already committed offenses. 2. retribution argues that persons who have committed crimes have acted immorally and must be punished to atone for the immoral action.
Utilitarian
-Deterrence theory posits that punishment of D reduces future crime in two ways: (1) [specific deterrence] D can decide not to commit future crimes or (2) [general deterrence] other persons, contemplating committing crimes and learning of the threatened punishment, will decide not to do so.
-Incapacitation consists of either (1) punishment for lengthy periods of time every person committing the same crime equally, or (2) assumes that they can accurately identify those who are most likely to reoffend and impose on them lengthy periods of incarceration. However, it is not possible to figure out who will recidivate.
-Rehabilitation Another form of utilitarianism is rehabilitation (or reform). Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training
of institutions for detecting the commission of offenses, apprehending offenders, and determining whether they should be held for adjudicative process.
· British Approach v. American Approach
o British- British courts can engage in gap filling. Courts and legislatures work in conjunction with one another.
o American System- Allows courts to interpret statutes broadly or use catch all statutes (Disorderly conduct). Allows US System to engage in gap filling where necessary although the US is not gap filling
Void For Vagueness Doctrine
· Generally
o Laws must be clear and provide awareness. If the law is not consistent or unclear, it does not give notice and provide awareness.
o Requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.
· Rationale for the Void For Vagueness Doctrine:
o Fails to give adequate notice or warning of what is prohibited.
o Indefinite law invites arbitrary and discriminatory enforcement.
§ Where legislatures fail to provide such minimal guidelines, a criminal statute may permit a “standard less sweep that allows law enforcement to pursue their own personal endeavors.
· Exceptions to Void For Vagueness Doctrine
o Matter of Degree
§ Must draw a line somewhere and use a piece of language that says only so much restraint of trade is unacceptable.
§ Court allows vagueness to a degree. (In places where it can be quantitively defined.)
§ If it is qualitatively defined it will likely be struck down as it is not a matter of degree
o Sometime is it necessary to be precise
· Ways to attack a statute
o Facial
§ It is unconstitutional in all instances
§ Problem
· When you are challenging a statute for being too vague you need to show it is vague in all instances
· Might always fail
o As Applied
§ It is unconstitutional as it applies to your case
· Cases
o Papachristou v. City of Jacksonville
§ Police were given too much authority and that could be applied drastically
§ Problem With Statute
· It is too broad and it applies to everyone
· Discriminatory as applied
§ Vague as to what you need to be doing to abide by the statute
o Nash v. United States
§ “UnDue Restraint of Trade”
o Matter of Degree
§ Must draw a line somewhere and use a piece of language that says only so much restraint of trade is unacceptable.
§ Court allows vagueness to a degree. (In places where it can be quantitively defined.)
§ Rule:
· If it is qualitatively defined it will likely be struck down as it is not a matter of degree
· Judicial scrutiny under the vagueness doctrine is most rigorous when the law in question impinges on 1st Amendment freedoms of speech and press.
