Kaplan Criminal Law Spring 2016
Principles and Philosophical Framework
What is criminal law?
What we choose to punish, why and how we do so
Characteristics of criminal law
Case is usually brought by the state
Community condemnation
Incarceration, probation, conviction consequences
Not all offenses are punished the same way
Felonies and Misdemeanors
What do we look at?
Jurisdiction’s criminal statutes
Federal Statutes
Generally states create criminal law
Common law
Court made law, that has evolved over the centuries
US moved to codified criminal law
Our focus
American Law Association Drafted it
Not the law of any particular jurisdiction
NJ tracks this very closely
Historical Common Law
Not the law of any particular jurisdiction
Used it to draft statutes and help interpret it
Trial by jury and burden of proof
Jury Requirements
Usually 12 people & unanimous
Can have fewer than 12, but no less than 6
Some states require unanimous some do not
Tries to reflect a cross-section of the population
Proof beyond a reasonable doubt
Even element of an offense beyond a reasonable doubt
The meaning of which is different
Err on the side of letting guilty people free rather than condemn anyone innocent
Judges give reasonable doubt instructions
Theories of punishment
Truth and reconciliation
Incarceration
Largest form of punishment
Why study them?
To interpret statutes
Help make good law
Most arguments will be around fairness principle
What is punishment
Something we do to people, treatment
Has to be unpleasant to be punishment
The meaning of the punishment, not just the treatment
Responsive to something that someone did
Cannot be in advance
A consequence
Retributivism
Backwards looking ( about what you deserve for what you did )
Punishment in accordance with moral deserve
Punishment is deserved, criminal put themselves above the other / other people
Need to keep everyone on the same level
Dominant school of though
Positive: We punish every person that morally deserves
Won’t punish someone we say doesn’t deserve it
Utilitarianism
Forward looking ( consequences of the punishment itself )
Maximize the happiness for society, punishment only merited when the benefits to society outweigh the cost
Cost of Criminalization
Incarceration costs
Individual no longer benefits society
Family suffers
Community suffers
Dangerous people out of society
General deterrence
People feel safe
Reform
Victim’s families and friends are relieved
Slave to the cost-benefit analysis
Don’t care if someone deserves the punishment
Incomplete information
What is an objective measurement of good or bad?
People generally don’t like rules that punish others
Mixed Theory
Incorporates both Retributivist and Utilitarian
Retributivism is the initial limiting fact, and the initial hurdle
Restorative justice
Most participatory form of justice
Utilitarian Pros
More rehabilitative / reformative
Reduce unpleasantness
Less costly
Increase benefit to society and the victim
Utilitarian Cons
Reduce deterrence
Discriminatory
Fail to protect individuals
Retributivist Pros
Punishment according to moral desert
Retributivist Cons
Applied in a discriminatory fashion
Initial threshold of who gets to participate
Victim restitution over societal condemnation
Legality Principle
Principles which we cannot violate when crafting and putting law into place
Why we have it
Because there is serious consequence to criminal law
Limit criminal law so it isn’t abusive or arbitrary
Three main point
Law must be understandable to a reasonable law-abiding person
Should be crafted so they do not delegate, no undue discretion
Be biased in favor of the accused “Lenity”
There are some good reasons not to act
Create a risk to themselves
Don’t know how much we want people to give up
How much are we willing to ask people to give up?
Expansion
Vermont’s Good Samaritan Law
Retributivist View
Moral Dessert: Whether a failure to act can and should be a source of punishment
Utilitarian Calculus
Cost-Benefit: more people reporting in, and more people getting caught so the deterrence effect is more people are porting crimes
Distrust between individuals and and police force
Common Law Approach
Where a statute imposes a duty
Where one stands in certain status relationship with another
Where one has assumed a contractual duty
Where one has voluntarily assumed care of another and secluded them
Created the risk of harm
Model Penal Code
Liability for the commission of an offense may not be based on a mission unaccompanied by actions unless
The omission is expressly made sufficient by the law defining the offense, or
A duty to perform the omitted act is otherwise imposed by law
Difference from the common law
Common law gives specific situations
MPC requires statues or some other area of law that outlaws the conduct
MPC wants to move way from fuzzier approach
NJ Statute
Liability for the commission of an offense may not be based on an omission unaccompanied by action unless
The omission is expressly made sufficient by the law defining the offense, or
A duty to perform the omitted act is otherwise imposed by law, including but not limited to
Some mandatory reporting laws
