Walen – Criminal Law Outline – Spring 2013
I. Institutions and Processes
A. The Structure of the Criminal Justice System
B. Criminal Justice Procedures
C. The Process for Determining Guilt
1. Proof Beyond a Reasonable Doubt (In re Winship).
a. Allocating the Burden of Proof: The Due Process Clause requires the prosecutor to prove every element of a crime beyond a reasonable doubt. (Patterson v. New York).
i. Burden of Production: The burden of coming forward with enough evidence to put a certain fact in issue. (Prosecution).
ii. Burden of Persuasion: The burden of convincing the trier of fact. In many jurisdictions, absence of affirmative defenses are considered presumed until they are raised or rebutted. Once rebutted, the burden of production then falls on the defendant.
b. Allocating the Burden of Persuasion.
i. Implementing the presumption of innocence requires something be proved beyond a reasonable doubt.
c. Sentencing Enhancements: It is not a violation of due process to require a preponderance of evidence instead of beyond a reasonable doubt when existence of the fact does not raise the maximum sentence.
d. Presumptions: A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption.
II. The Justification of Punishment.
A. What is Punishment.
1. Prisons and Prison Conditions.
2. Civil Sanctions.
B. Blame and Punishment. (Regina v. Dudley and Stephens).
1. Deservingness.
a. Justification: Any just system must provide for self-defense as a justification and of course ours does.
b. Excuse: We provide a defense to certain defendants who we believe could not be expected to have done better, like children and insane people.
C. Why Punish?
1. Retribution.
a. What is Retribution? Judicial Punishment (pena forensis) is to be distinguished from Natural Punishment (poena naturalis).
i. Retributivism: The view that punishment is justified by the moral culpability of those who receive it, regardless of any deterrence aspect. Looks back in time.
b. The two basic differences between retributivism and utilitarianism:
i. Punishment is solely based on the voluntary commission of a crime.
ii. Humans act with free will.
c. Variations on Retribution:
i. Assaultive Retribution: It is morally right to hate criminals because the criminal has harmed society and deserves to be hurt back. Criminal is like a noxious insect.
ii. Protective Retribution: Punishment is not inflicted because society wants to hurt wrongdoers, but because punishment is a means of establishing moral balance.
iii. Victim Vindication: Punishment is a way to right the wrong. Criminals essentially proclaim their rights to be more important than the victim. Punishment fixes this.
d. Denunciation: Punishment is justified as a means of expressing society’s condemnation and the relative seriousness of a crime. Hybrid of Utilitarianism and Vindication
2. Deterrence
a. Retributivists criticize deterrence theory because it justifies using persons solely as a means to an end in that the guilt or innocence of an offender can be irrelevant.
b. General Deterrence: To discourage people from committing crimes. Punishing A so that the general population will not follow A’s lead.
c. Specific Deterrence: To dissuade the offender from committing crimes in the future.
3. Rehabilitation
a. Some critics doubt that criminals can be rehabilitated. Advocates argue that it will often work if society is prepared to commit the necessary resources to the process.
b. Critics also state that removing the punishment component and focusing solely on what cures the offender is unjust. Advocates believe reformation is the ultimate goal.
4. Incapacitation
a. Utilitarians state that the intentional infliction of pain through punishment is senseless and based more on emotions like anger rather than reason.
D. Assigning Punishment —> Sentencing
1. Sentence Length (Michael Milken, Jackson)
a. Indeterminate Sentencing: Judges have considerable discretion and individualized the maximum sentence and allowed correctional officers the power to “parole”.
b. Determinate Sentencing: Corrections officers lack the authority to reduce the sentence based on evidence of rehabilitation in prison. The punishment is defined at trial.
c. White collar crime is not really associated with jail so the prospect of going to jail is very impactful deterrence. (Milken).
d. The point is to disincentify the criminal without expending a large cost on the system. Those who commit hard to detect crimes should deserve harsher sentences to compensate for the low probability of them getting caught. Those who are clever to avoid detection are not any less of a criminal.
e. In regard to sentencing judges will weigh the person’s character and essentially make a pro/con chart and go from there.
f. Recidivist: A habitual offender. The retributive theory states that the prior convictions should be treated as a warning and anything thereafter should be very harsh.
2. Kinds of Punishment
a. Sentencing Reform Act: A federal statute requiring that the punishment must be reasonably related to det
ii. Cons: (1) Loopholes, (2) Legislation usually falls behind the times (3) Inhibits Courts
e. Reliance interests:
(1) The law is so vague or ambiguous that you do not know that your activity was banned. You should be able to determine the legality of your actions.
(2) The sophisticated person who hires an attorney to determine what course of action he should take and what he can or cannot get away with should be able to rely on this advice.
C. Proportionality
1. In General
a. Proportionality principle of the Eighth Amendment dictates that determination of proportionality is viewed on:
i. The gravity of the offense and the harshness of the penalty.
ii. The sentences imposed on other criminals in the same jurisdiction.
iii. The sentences imposed for commission of the same crime in other jurisdictions.
b. Proportionality focuses on a more subtle question, not whether person is guilty, but how guilty they are. How much punishment there should be.
2. Utilitarian
a. Utilitarians wish to break proportionality because:
(1) Hard to detect crimes should receive higher punishments,
(2) Hard to deter crimes should receive higher punishment
(3) High visibility defendants (high profile) should be made an example and should be treated differently.
b. Punishing the innocent for the crimes of the guilty is a utilitarian principle when it affects the greater good. Punishing those that are not culpable is another problem.
c. The utilitarian point of view on rape is that if the punishment for rape is death, it elevates rape to murder when murder is inherently worse. Could help deter rape though.
3. Retributivism
a. Ewing v. California: Three strike law in California gives you a 25 to life sentence when you commit your 3rd violent crime. Based on recidivist premiums.
b. In essence he showed himself to be incapable of following the law and that is why the previous crimes are factored into the discussion.
c. According to Scalia/Thomas, the text of the 8th Amendment has nothing about proportionality. Only preventing excessive fine and cruel AND unusual punishment.