CRIMINAL LAW OUTLINE- Fall 2008 (McNeal)
I. Punishment
A. Overview
1. Just because the elements of a crime have been met, does not mean that it needs to be prosecuted, it must fulfill a purpose of punishment.
2. Prosecutorial Discretion
i. Laws are designed and written to utilize discretion in their application.
ii. Not only the act affects discretion, but the state of mind as well.
3. Do mitigating circumstances outweigh a purpose of punishment?
i. Good character of perpetrator
ii. No real possibility of future danger
iii. Sympathy
iv. Cost and resources of prosecution
v. Opportunity cost of pursuing prosecution of this person vs. more blameworthy ones?
vi. Not likely to receive a severe/effective sentence.
B. Theories of Punishment
1. Retribution [Page 40]
i. “Sameness of kind”- Punishment should be based on the severity of the crime and must be exactly what matches the blameworthiness of the crime itself.
ii. Blameworthiness- the morality (immorality) attached to the crime.
iii. “Just deserts”- Doesn’t “use”/punish people for benefit of society at large
iv. Punishment “fits” crime.
v. Proportionality- (limiting principle) doesn’t punish beyond what they deserve.
vi. Leads to “grading” offenses and labeling one as “worse” than another for proportionality.
2. Deterrence
i. Fear of punishment- reduces crime through intimidation of future criminals and society at large.
ii. Specific deterrence:
a. Dissuade the punished individual from committing future crimes.
iii. General deterrence:
a. Dissuade others in society/society at large from committing future crimes.
iv. Leads criminals to doing a cost/benefit analysis:
a. Based on arrest/conviction rate- is it so low that it renders it ineffective?
b. Cost of getting caught must outweigh benefit of committing the crime.
v. Utilitarian benefit- this theory focuses on the “net social gain” of the punishment.
vi. Assumes life outside of prison is better than inside. (Is this always true?)
vii. Can lead to an imbalance between crime and punishment if more deterrence is needed within society as a whole- death penalty for parking ticket?
3. Incapacitation
i. Takes away a criminal’s ability to commit crimes (theoretically)
a. Exception- additional crimes can be committed within prison walls
b. Does not have to be 100% effective at preventing crimes in order to have an incapacitative effect.
ii. Based on certain assumptions:
a. Some percentage of offenders will recidivate (how accurate is this prediction?)
b. Criminals will not have immediate and complete “replacements” on the streets
c. Prison itself does not function as a “school of crime.”
iii. Collective strategy:
a. All persons convicted of a certain offense will receive same sentence. (same level/length of incapacitation.)
iv. Selective strategy:
a. Involves individualized sentences based on predictions that particular offenders would commit serious offenses at a high rate if not incarcerated.
v. Relies on a dollar cost to government/society v. actual benefits in terms of lowered crimes.
vi. Certain categories of crimes (ie. Low level drug) do not function under a theory of incapacitation.
4. Rehabilitation
i. Seeks to prevent future crimes by changing the criminal so that they no longer desire to commit future crimes.
ii. Can in effect lead to more cruel/harsh punishment than retribution and can be applied very unfairly/unequally.
a. Ex- Two people commit same crime- one gets 1 yr other gets 10 of rehab.
iii. Can lead to a somewhat narrow scope of applicability. (can every criminal for every crime be rehabilitated, or are some crimes outside the scope?)
5. Denunciation
i. Society expresses its collective disapproval of certain conduct.
ii. Reaffirms the values of society that are violated by the criminal acts
iii. Promotes societal cohesion.
iv. Seeks to reinforce/reassure society that the rules are being enforced and that the “system” is working.
v. Has utilitarian principles that can lead to “using people” or making examples of them.
vi. Most effective when certain criteria are fulfilled:
a. Member of a certain identifiable group
b. Legal sanctions must compromise potential offender’s group standing.
c. Must be communicated to group so that group withdraws from offender.
d. Offender must fear withdrawal by the group.
e. Offender must be afforded some means of regaining community esteem.
C. How We Punish
1. Types of Punishment
2. Implementing Punishment
3. Sentencing Power and Discretion
4. Restorative Justice
D. How Much Punishment
II. Making Criminal Law
A. Legislators and Judges- attempt to create law w/as little ambiguity as possible so it can be applied
1. Common Law [Page 92]
i. Some states retain common laws that are not specifically embodied
2. Statutory law- the rule of lenity
i. The Rule of Lenity:
a. Statutes can be interpreted and construed as favorably as possible to the defendant as possible: “every reasonable inference” in favor of offender.
ii. Liberal v. Strict construction/interpretation of statutes.
3. Common Law v. Statutes
a. Legitimacy
a. Offenses created by Statutes:
i. Legislative branch creates
of the law.
ii. Creates a “plain intent” rule as opposed to a “plain meaning rule.”
iii. Looks at the broad function of the law to determine how to apply it.
iv. Uses legislative history to determine “legislative intent” behind statute
a. Can become more about “judicial intent”- excuse/justification for applying law in a certain way in a certain case.
v. Narrowing v. Broadening statutes:
a. Letting someone walk v. prosecuting someone not originally covered by law.
2. Textualism
i. Text of the law is the only valid resource by which to interpret a statute.
ii. “It is the law that governs, not the intent of the lawgiver.”
iii. Safeguards against judge’s pursuit of their own objectives/agendas/desires.
iv. Construe the text itself reasonably to contain all that it fairly means.
v. Not strict constructionism
3. Dynamic Statutory Interpretation
i. Takes into account aspects of both intentionalism and textualism
E. Specificity
F. Synthesis and Review
III. Conduct
A. The Elements of an Offense
1. Establishes the physical element of a crime, separate from the mental elements.
2. Examines what is actually done by the offender.
3. All criminal laws require some level of conduct as an element of a crime-look for it.
B. Why Require Conduct?
C. What is an Act?
D. Status
1. If a case looks like it is punishing based on status, look for any act that could explain.
2. Looks at whether the acts are life sustaining and inextricably tied to the status.
i. Example- panhandling can be prosecuted, whereas sleeping on the streets might not be.
E. Voluntariness
1. Each of the required conduct elements of a crime must be fulfilled.
2. Conduct aspects must be done/fulfilled voluntarily.
3. Voluntary nature of conduct is a requirement of any criminal act.
4. Model Penal Code:
i. Not guilty unless liability is based on conduct that includes a voluntary act or omission.
ii. Not voluntary acts:
a. A reflex or convulsion
b. A bodily movement during unconsciousness or sleep.
Conduct during hypnosis or resulting from hypnotic suggestion
