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Criminal Law
Rutgers University, Newark School of Law
Bergelson, Vera

the criminal justice system and the justification of punishment
The career of a criminal case (see handout 1)
intro to justification
regina v. dudley (p. 83, 898)
The justification of punishment (theories, amount, and kinds)
Theories of Justification
Amount of Punishment
united states v. bernard l madoff (p. 125)
united states v. jackson (p. 130)
Kinds of Punishment
Historical – Torture /Corporal Punishment
8th amendment bans cruel and unusual punishment
Capital Punishment/ Death Penalty
Typically limited to homicides
Sentence in 31 states
Federal Circuit level affirmed shaming – did not reach SCOTUS
Arizona “Dead Beat Parent” Twitter Feed
Inability to procreate without state’s consent
Restriction on living location
Defining criminal conduct
criminality/what to punish
Domain of Personal Choice
Harm Principle – John Stuart Mill
Only punish what causes harm to others
“Power can only be exercised over any member of a civilized community, against his will, to prevent harm to others. His own good is not a sufficient warrant”
Collapse of the Harm Principle (Professor Bernard Harcourt)
Minor and (often moral) crimes cause major crimes (broken window theory)
“There is probably harm in most human activities, on both side of the equation – persons harmed by purported moral offence and actor whose conduct is restricted by the legal enforcement of morality.
Other (non-criminal sanctions) Tools for Regulating Harmful Conduct
In many cases use of criminal sanction to deter misconduct may produce more harm than good and are regulated/discouraged in other ways such as:
Civil Liability
Informal social pressure
Implications of choosing criminal law as social control
Indirect Harm and “Victimless” Crimes
Consenting adults (drug distribution and prostitution)
Emotional Harm and Bullying
Lawrence v. Texas (bb ho)
Case that un-crimnalized homosexual intercourse
Regina v. Emmett (bb ho)
Consensual kinky sex goes wrong
Limitations on Punishment
Premise of criminal law: you can only be punished for choosing to do wrong
If didn’t know of punishment, no choice
Violation of Due Process – Fair warning
Ex Post Facto law (prohibited by 10th amendment) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.
Ex Post Facto laws do not apply to the courts, only to legislature.
Statutes may also 
Over broad and vague terms
keeler v. superior court (p. 163)
 (Supreme Court of California, 1970)
Facts: Man killed 35 week fetus and was charged with murder (among others). Keeler appealed the indictment for lack of probable cause, on the ground that the alleged conduct even if proved, would not constitute the offense charged. Keeler claims even Penal Code section 187 provides: “Murder is the unlawful killing of a human being with malice aforethought”
Holding: Indictment reversed. The term “human being”, as contemplated by the penal code of California, does not include an unborn fetus. Legality issue – person must have notice that his conduct is prohibited
Viewed as judicial enlargement applied retroactively operated like ex post facto laws (prohibited by 10th amendment)
Rogers v. Tennessee (p.168)
(SCOTUS, 2001)
Facts: D stabbed victim, victim went into a cardiac arrest and 15 months later died of related complication. D was charged with murder. Tennessee common law rule at the time stated homicide could be prosecuted as murder only when victim died a year and a day from D’s act.
Issue: Whether the alteration of the common law rule of criminal law violates the principle of fair warning, due process?
Holding: No. Ex Post Facto laws do not apply to the courts, only to legislature. Courts have the power to revise common law, but they may not do so retroactively unless is said to be “unexpected and indefensible”. Courts use the fact that other jurisdictions had abolished the rule as a basis to support that the alterations was unexpected and indefensible.
Punishment should be proportionate to crime (MPC AND COMMON LAW)
8th amendment prohibits cruel and unusual punishments
Does not guarantee proportionality, forbids only gross disproportionality (Harmelin)
SCOTUS has certain categorical exclusions for crimes and populations (historically only applied to death penalty)
Mentally retarded
Rape of a woman
Rape of a child
In the cases adopting categorical rules the Court has taken the following approach. The Court considers:
First, whether there is a national consensus against the sentencing practice at issue by considering “objective indicia of society’s standards, as expressed in legislative enactments and state practice”
Secondly, whether the punishment in question violates the Constitution. This determination is based upon precedents and by the Court’s own understanding and interpretation of the Eighth Amendment ’s text, history, meaning, and purpose,
Ewing v. California – 3 strike laws (p. 190)
(SCOTUS, 2003) Three Strike Laws
Facts: D had a substantial criminal history and was on parole when he was arrested for grand larceny after stealing three golf clubs from a sports store. Since he had previously been convicted of two or more serious or violent felonies, D was sentenced, under California’s “three strikes” law to 25 years to life in prison. On appeal, Ewing argued the sentence of 25 years to life was grossly disproportionate to the crime and therefore a violation of the Eighth Amendment protection against cruel and unusual punishments.
HOLDING: No, court affirmed the judgment, reasoning that the three strikes law served the state's legitimate interests, therefore did not violate the 8th amendment.
RULE: Three strikes laws, which serve the legitimate goal of deterring and incapacitating repeat offenders, do not violate the Eighth Amendment of the United States Constitution’s (Constitution) prohibition on the imposition of a sentence that is grossly disproportionate to the severity of the crime.
Graham v. Florida – categorical rule (p.197)
(SCOTUS, 2010) Categorical Rule
Facts: Graham (D), a 17 years old was arrested for a home invasion and attempted robbery while he was on probation for attempted robbery. He was sentenced to life imprison without the possibility of parole after he was found guilty. A petition for habeas corpus for the review of his sentence was filed by Graham (D) in the federal court and his case eventually came before the Supreme Court of the United States.
Issue: Is a sentence of life imprisonment without parole meted out on a minor for a non-homicidal offense unconstitutional?
Holding: Court went through the categorical rule analysis and rejected the judgment finding a life imprisonment sentence without the possibility of par

ge’s refusal of the D’s requested instruction on the subject of unconsciousness.
Holding: Yes. The trial court erred in failing to instruct the jury on the subject of unconsciousness, as involuntary unconsciousness is a complete defense to a charge of criminal homicide and evidence of such involuntary con
Synopsis of Rule of Law: Prejudicial error exists where a judge refuses a requested jury instruction where evidence of involuntary unconsciousness has been produced in a homicide prosecution and would act as a complete defense if found to have existed.
In most situations, there is no criminal liability for an omission to act
Duty to act only extends to
Duty enumerated by Statute
Parent to minor child
Spouse to spouse
Contractual responsibility
Voluntary assumption of case + seclusion
Creation of Peril
culpability not needed duty can arise even when D is not at fault (someone jumps infront of car) and without voluntary act (seizure causes victim to drown)
Other notes:
Problem with imposing duty to act is privacy, liberty and autonomy.
Crowd indifference – natural to be less responsive when part of a crowd
Domestic Violence – Child Abuse
Common Law
No crime unless there is a legal duty to act by:
Special Relationship
Assumption of Care
Peril wrongfully created for another
Same as CL criminal liability imposed for the omission of an act which D is physically capable.
Not obtaining reasonably available help can make D liable, no matter what D’s physical capabilities.
Jones v. Unites States (p. 218)
(U.S. Court of Appeals, District of Columbia Circuit, 1962)
Facts:  Jones was caring for Green's baby (10 month old Anthony Lee Green) and failed to provide for the child and such failure resulted in the child’s death.  Jones was arrested and charged with involuntary manslaughter. It was Uncontested that D had ample means to provide food and medical care. Green lived in the house with D, but there was conflict in the evidence as to how long. There was some debate as to whether Green was paying Jones to care for the baby.
Holding: The Appellate court found that there are four situations where the failure to act may constitute a breach of legal duty: (1) Where a Statute imposes a duty to care. (2)Where one stands in a certain status relationship to another (like being a child's mother). (3) Where one has assumed a contractual duty to care for another. (4) Where you have voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
In this case, the Appellate court found that the jury was not instructed that they must find beyond a reasonable doubt that Jones had a legal duty to care therefore remanded.