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Criminal Law
Rutgers University, Newark School of Law
Haque, Adil Ahmad



FALL 2015


2 Sources of Criminal Law—

Model Penal Code (MPC)/Statutes
Common Law

There’s criminal responsibility when there is an actus reus and a mens rea.
Criminal law is public law; it is statutory law as oppose to private made judge law
Today in every state and in the federal system, legislators rather than judges, exercise primary responsibility for defining criminal conduct and for devising the rules of criminal responsibility
The legislative branch of government, rather than the judiciary is now considered the appropriate lawmaking body
The standard of proof for criminal responsibility is “beyond a reasonable doubt of every fact necessary to constitute the crime charged.” In re Winship.
The supreme court ruled in re Winship that in order to provide concrete substance for the presumption of innocence – the due process clause of the united states of constitution requires the prosecutor to persuade the fact find beyond a reasonable doubt of every fact necessary to constitute the crime charged

Lawrence v. Texas (The question before the court is the validity of a Texas statue making it a crime for two persons of the same sex to engage in certain intimate sexual conduct – individual dignity)

Facts: The applicable state law is Tex Penal Code Ann. “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. He alleged he was practicing homosexual and that the criminal prohibition violated rights guaranteed to by the constitution
They conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the 14th amendment
The issue is whether the majority may use the power of the state to enforce these views on the whole society through operation of the criminal law
Does a statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violate the Due Process Clause?

Holding: Yes. A statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.

Liberty protects the person from unwarranted government intrusions. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The defendants are adults and their conduct was in private and consensual.
In 1955 the American law institute promulgated the Model Penal code and made clear that it did not recommend or provide for criminal penalties for consensual sexual relations conducted in private
The judgment of the court of appeals for the Texas fourteenth district is reversed and the case is remanded for further proceedings not inconsistent with this opinion. 14th amendment: no state shall deprive any person of life, liberty or property without due process of law



Class 2 Theories of punishment 30-48

Because punishment involves pain or deprivation that people wish to avoid, its intentional imposition by the state requires justification.
A person commits a crime only if the pleasure he anticipates from the crime exceeds the anticipated pain or in other words only if the expected benefit exceeds the expected cost
To deter crime, therefore the punishment must impose sufficient pain that when added to any other pain anticipated by the criminal, it will exceed the pleasure that he anticipates because the result would be to create pain

The dominant approaches to justification are retributive and utilitarian. (May be used simultaneously)


“Right to be punished”

justice. People who commit certain types of crimes deserve to be punished

Backward looking, someone did something in the past we respond to it


General deterrence, individual deterrence, reform, incapacitation

General deterrence: The person who has already committed a crime cannot, of course, be deterred from committing that crime, but his punishment may help to deter others
Individual deterrence: The actual imposition of punishment creates fear in the offender that if he repeats his act, he will be punished again
Specific deterrence: deter you from doing something similar
lock you up so you can’t do it again
fix you up get you therapy
Reform: Punishment may help to reform the criminal so that his wish to commit crimes will be lessened, and perhaps so that he can be a happier, more useful person. Conviction and simple imposition of a penalty might help an offender become aware that he has acted wrongly

Forward looking, we punish to prevent future crime
Individual deterrence is sometimes divided into two forms:

(1) Incapacitation

(2) Intimidation

Distribution of punishment 49-51

The Queen V. Dudley and Stephens:

: Dudley, Stephens, Brooks, and Parker, crew members on a yacht, were cast adrift 1600 miles from land in an open lifeboat.
Without consulting him, Dudley and Stephens killed Parker on day 20.

They were rescued 4 days after the murder; they would have all died if they had not fed off of Parker’s remains.
That Dudely, with the assent of stephens, went to the boy and telling him that his time was come, put a knife into his throat and killed him and there; that the three men fed upon the body and blood of the boy for 4 days; that on the 4th day after the act had been committed the boat was picked up by a passing vessel and the prisoners rescued, still alive but in the lowest state of prostration


Class 3 Gradation of Punishment 51-61 & Qualitative Proportionality 69-81

People v. Superior Court (Du)

Du was a 51-year-old Korean store owner with no criminal history who shot and killed young customer who was leaving the store after the two had been engaged in an argument. Upon being found guilty of voluntary manslaughter, Du was sentenced to ten years in state prison, however the judge suspended the sentence and placed her on probation
In determining propriety of probation, a court must consider whether the crime was committed because of unusual circumstances such as great provocation.
the sentence of 10 years in state prison is suspended
Due has no record of crimes of violence. Du participated in the crime under circumstances of great provocation, coercion and duress. Because of the repeated robberies and gang terrorism in her store, Du’s over-reaction, although not appropriate, was understandable. The job of the court is to ensure justice, not to extract revenge.
Negative : never punish someone more than they deserve, you should only punish to the extent that it will prevent crime
Criminal conviction is already bad as it self – so maybe by convicting Mrs. Du as manslaughter, you did something wrong, here is how long it is (6 years) now that you understand is it worth it?
Retributivism: some punishments are too high or some too low than they deserve so its hard to say you committed theft so it is difficult to say the precision of how they should get locked up so they will be a range
In imposing sentence – consider the objectives of sentencing a defendant

1.) to protect society
2.) to punish the defendant for committing a crime
3.) to encourage the defendant to lead a law-abiding life

tional basis scrutiny: if it is rational to believe that it will be in the state’s interest,
Difference between Coker and Ewing: death is different, for the last 15-20 years that the court will use the 8th amendment to restrain the use of the death amendment
When it comes to length the courts will back off and let the states see what they want to do
The court explained that three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the eighth amendment:

The gravity for the offense and the harshness of the penalty
The sentences imposed on other criminals in the same jurisdiction
The sentences imposed for commission for the same crime in other jurisdictions

Principle of Legality 92-95:

Principle of legality— nullum crimen sine lege, nulla poena sine lege or “there can be no crime without law, no punishment without law.”
i.e., A person may not be convicted and punished unless her conduct was defined as criminal. Retroactive criminal lawmaking is prohibited.
3 corollaries to the legality principle:

(1) Understandable — Criminal statutes should be understandable to reasonable law-abiding persons.

(2) Non-delegation — Criminal statutes should be crafted so that they do not “delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.”

(3) Lenity Doctrine — Judicial interpretation of ambiguous statutes should “be biased in favor of the accused (defendant).”

Commonwealth v. Mochan: (Requirement of Previously Defined Conduct)

Facts: Mochan made a series of highly obscene phone calls to a stranger for which he was indicted, tried and found guilty. The crime for which he was indicted was for intending to debauch, corrupt, embarrass and vilify the person called. The conduct alleged in the indictments was not prohibited by statute. The prosecutor, successfully contend that the conduct did constitute a common law crime and was punishable under the common law of PA. Mochan appealed the conviction, arguing that he could not legally be indicted for acts which did not constitute a statutory crime
Issue: Whether conduct can be prosecuted and punished under common law where the conduct charged in the indictments is not a criminal offense by statute.
Holding: Yes
Rational: Common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent or statue, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect the public morality or obstruct or prevent public injustice. In sum, whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law. Affirmed. This case possibly violated the lenity doctrine because there wasn’t a statute in writing and when the court is in doubt, they’re supposed to favor the Δ.
Rule: At common law, any act is indictable which from its nature scandalously affects the morals or health of the community.