Criminal Law – Clark – Spring 2015
BASIC CONCEPTS:
· General Part – issues that cut across various crimes. Special Part – specifics to a crime.
· Jurisdiction: Unlike civil law, Not based on citizenship. Based on territory. Can have concurrent jurisdiction.
PRINCIPLES of PUNISHMENT:
· Theories and Purposes of Punishment
o 1) Deterrence – Utilitarian theory = prevent future harms
§ General deterrence – idea that individuals will not commit crimes for fear of suffering same punishment that a current D has suffered.
§ Specific deterrence – idea that this D will avoid future crimes b/c he fears additional punishment.
o 2) Rehabilitation (aka reformation) – Utilitarian theory = punish D to make him a better person and better citizen tomorrow. Believes bc free will capable of changing and contributing to society positively.
o 3) Isolation (aka restraint, or incapacitation) – D cannot harm others b/c he is locked up.
o 4) Education (aka general deterrence) – educates rest of population re: values
o 5) Retribution – unlike utilitarian principles, looks to past rather than future, ensure individual gets what he deserves.
DETERMINING THE APPROPRIATE SENTENCE
· Sentencing under STATE GUIDELINES – comes from Legislature. If vague, look at historical data and see what appellate court has done.
o Standard: Abuse of discretion – Most deferential standard.
o Burden on D: To show sentence is unreasonable.
o What’s Reasonable:
o Reasonable if it appears at time of sentencing that it’s necessary to protect society and achieve goals of deterrence, rehabilitation, or retribution.
§ Factors in determining Reasonableness:
· 1) The nature of the offense
· 2) Character of offender
· 3) Protection of public interest.
o Case: State v. Jensen (2002, Idaho) – woman who killed mistress with insulin. Cold calculated murder, pled guilty to 1st degree murder.
§ Sentence of life in prison ruled not excessive.
§ Standard of review was abuse of discretion.
§ 3 factors in determining reasonableness justified her sentence
o The Sentencing Process: PSR = presentencing report, prepared by court that forms basis for court’s sentencing decision.
§ Important bc includes extra such as info on D family, work, educational history, past criminal record, info from family, friends etc.
§ Goal is to give judge a broad array of info to determine appropriate sentence.
o Role of Lawyer in Sentencing Process: Just as important as during trial phase.
o Burden of proof: Judge’s findings – preponderance of the evidence.
o Fact-finding Strategy in Sentencing: Some jurisdictions, an indeterminate sentence may be given to a D – ex. Parole. Others, judge’s discretion to sentence within min and max guidelines, used as a guide only, or as mandatory.
§ Blakely v. Washington (2004) – 6th amendment right to a jury trial prohibits judges from enhancing sentences based on facts other than those decided by jury or admitted by D.
§ United States v. Booker (2005) – found federal sentencing guidelines to be constitutionally defective and so are now only merely advisory, not mandatory.
o Collateral Consequences to D- D’s loss of voting rights, loss of license, placement on sex offender registration list, etc.
· Sentencing Under the FEDERAL GUIDELINES
o Traditionally – Complete authority to impose punishment so long as didnot exceed max
o Since early 1980s -increased power of prosecutors, whose discretion to decide what crime to charge, can effectively decide sentence of D is likely to receive upon conviction.
o Presumption of Reasonableness: Appellate courts (only) may presume the reasonableness of within-Guidelines sentences. Rita v. United States (2007)
o Standard: Abuse of discretion. Guidelines kept in mind throughout the process.
o Case: United States v. Crawford (2008) – drug case sentencing of 210 months. Consider Guidelines, as well as factors listed in 18 USC §3553(a). See Pg 22 footnote.
§ 18 USC §3553 (a) – court, in determining sentence, should consider:
· 1) Nature and circumstances of the offense and the history and characteristics of the defendant
· 2) Need for the sentence imposed…(a)-(d)
· 3) Kinds of sentences available
· 4) Kinds of sentence and the sentence range established for…
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Proportionality
· Notion that – Punishment should fit the crime.
· 8th Amendment – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
· 3 Factor Test to assess if punishment is “cruel and unusual” bc disproportionate:
o 1) Gravity of offense and harshness of penalty
o 2) Sentences imposed on other criminals in same jurisdiction
o 3) Sentences imposed for commission of same crime in other jurisdictions
· Repeat Offenders: Recent approach increased punishment for repeat offenders.
o Ex. CA’s “Three strikes and you’re out” law – get 5 yr enhancement to sentence. Allows for some offenses to be charged as either a felony or misdemeanors – wobblers. Gives prosecutors and trial court discretion to enhance or avoid Three Strikes Law.
o Ex. Ewing v. California (2003, CA) – parolee stealing golf clubs got 25yrs to life b/c previous crimes – discretion was used to make his crime a felony. Ex of federalism problem whereby US Supreme Court is reluctant to infringe on state courts/laws – plurality opinion 5/4.
Capital Punishment
· Two Social Purposes served by the death penalty:
o 1) Retribution
o 2) Deterrence of capital crimes by prospective offenders
· CAN’T EXECUTE MENTALLY RETARDED OR JUVENILES UNDER 18 YR OLD.
o Atkins v. Virginia (2002) – RULE: Court held that 8th and 14th amendments prohibit the execution of a mentally retarded person, as cruel and unusual punishment.
o Roper v. Simmons (2005) – 17yr old murdered woman by throwing her off bridge drowning her, sentenced to death.
· At the time the Standford case allowed for execution of juveniles. But no national consensus re: this matter. *[Now old law]
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ng and regulatory statutes. Have a lower intent, or even require no proof of intent, known as “strict liability” offenses.
o 2) The Model Penal Code – Promulgated in 1962 by American Law Institute (ALI) and widely influential among many states in drafting their own penal statutes. Adopted by 38 states, and others use it as they would a restatement/guide.
· INTERPRETING CRIMINAL STATUTES:
o Interpreting Statutory Language – every word in statute has to be defined and understood to determine what conduct violates the law.
§ 1) Broad or Narrow: 1st focus on whether words should be construed broadly or narrowly. Generally, D wants words defined narrowly so can argue conduct fell outside and State seeks broader interpretation.
§ 2) Legislative Intent: Court’s role is to ascertain Legislature’s intent so as to effectuate the purpose of the law.
§ 3) First Plain Meaning: look to the words of the statute. If language is clear and unambiguous, then plain meaning of the statute governs. If not clear, then look to extrinsic sources.
§ 4) Similar Language Used Rule: When legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, usual presumption is that Legislature intended same construction, unless a contrary intent clearly appears.
· Case – People v. Lopez (2003, CA) – interrupted element of “felonious taking” in definition of carjacking as same as robbery’s.
· Case – State v. Donaldson (2003, IOWA) – RULE: CL “taking” is replaced with “possession” under MPC. One possesses an object if he secures dominion over it. “Possession or control” begins and a theft is completed when actor secures dominion over the object or uses it in a manner beyond his authority.
§ 5) Ejusdem Generis: When general language follows specific terms in a statute, general language is limited to specific terms. Words often take their shape from those around them and this rule says a phrase in isolation that appears to have a broad scope should be construed more narrowly when considered in its linguistic setting.
§ 6) Statutory Title: Some titles provide clear indication of the legislation passed.
§ 7) Expressio unius est exclusion alteriuis: used by Ds when a statute contains a list of acts or circumstances and they argue that by enumerating specific items the legislature intended to exclude anything that falls outside the list.
· Ex: statute probably not meant to exclude a thing’s common relatives.
