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

I.                   The Structure of the Criminal Justice System and the Justification of Punishment
INTRODUCTION: Criminal law is body of mainly statutory (legislative) law that defines what conduct is prohibited, defines blame, and assigns punishment. Common law doesn’t make criminal law anymore, but reinforces how statutes are interpreted to apply to crimes.
Model Penal Code. 1962. About 2/3 of states adopted in whole or part as criminal law (notably not CA). Feds never adopted.
       Divided into 2 parts:
    Part I: General provisions
i.e. principles of liability, principles of justification, responsibility, inchoate crimes
             Part 2: Definitions of specific crimes (rape, burglary, etc).
General Procedure
1. booked
2. free until trial unless very serious
            -post bail
            -bail bondsman – usually 10% of total amount
3. get charged
            -grand jury
4. plea at arraignment
5. possible communications between parties
            -plea bargaining
                        -more efficient for courts
6. ∆ enters plea of guilty
            -sentencing stage by judge
7. if ∆ pleas not guilty then right to jury or bench trial
8. jury selection
            -unlimited strikes w/ cause
            -very limited strikes w/o cause
9. trial begins
            -judge reads charges
            -∏ opening statement w/ elements
            -presents ∏ case/witnesses
                        -direct, cross, re-direct, re-cross
            -∆ can file motion for dismissal that on presented case there is no chance
                        -no law
                        -acts of ∆ do not satisfy requirements of law
                        -no reasonable jury could find ∆ guilty
            -if ∆ wins motion for dismissal, case over no re-trial
            -if ∆ loses motion then presents its case
                        -direct, cross, re-direct, re-cross
            -∆ can then make another motion for dismissal
            -parties closing statements
            -judge gives jury instructions
            -jury deliberates and gives verdict on each charge
            -sentencing stage
10. grounds for appeal
            -no such offense or unconstitutional
            -double jeopardy
            -evidence insufficient for reasonable jury to convict
            -not all elements of offense alleged
            -jury instructions were improper
Retributivist claims that punishment is justified because people deserve it.
            -rationales are essentially backward looking
            -they seek to justify punishment on the basis of the offender’s behavior in the past
Judicial Punishment (poena forensis) – imposed only because the individual on whom it is inflicted has committed a crime. It can not imposed as a means of promoting another good.
Natural Punishment (poena naturalis) – crime as vice punishes itself and does not come with the cognizance of the legislator.
Retributivism is the view that punishment is justified by the moral culpability of those who receive it. The moral culpability of an offender also gives society the duty to punish. They contrast greatly with utilitarian and rehabilitative views.
We are justified in punishing because and only because offenders deserve it.
Retributive Theory:
1.      a person may be punished if, and only if, he has voluntarily done something morally wrong
2.      that his punishment must in some way match, or be the equivalent of, the wickedness of his offense
3.      that the justification for punishing men under such conditions is that the return of suffering for moral evil voluntary done, is itself just or morally good
Above Theory answers three questions:
1.      What sort of conduct may be punished?
2.      How severely?
3.      What is the justification for the punishment?
Utilitarian believes that justification lies in the useful purpose to society that punishment serves.
            -rationales are essentially forward looking
            -they seek to justify punishment on the basis of the good consequences it is expected to produce in the future
Utilitarian views justify punishment of past offenses by the greater good of preventing future offenses.
Three main utilitarian strategies of crime prevention:
1.      deterrence – general and specific
2.      rehabilitation
3.      incapacitation
Model Penal Code
            1. The general purposes of the provisions governing the definition of offenses are:
a.       to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individuals or public interests
b.      to subject to public control persons whose conduct indicates that they are disposed to commit crimes
e. to differentiate on reasonable grounds between serious and minor offenses
2. The general purpose of the provisions governing the sentencing and treatment of offenders are:
                        a. to prevent the commission of offenses
                        b. to promote the correction and rehabilitation of offenders
                        c. to safeguard offenders against excessive, disproportionate or arbitrary punishment
NY Penal Code
            -To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection.
CA Penal Code
            -purpose of imprisonment for crime is punishment. Terms are to be proportionate to the seriousness of the offense uniformally. To be achieved best by determinate sentences fixed by statute.
General – society
Specific – individual
Rational-action Model
            -economic approach – potential criminals consciously or subconsciously calculate costs and benefits, even in the context of “crimes of passion.”
Lawmakers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime.
            This can be deemed a poor theory for 2 reasons:
1.      its effectiveness rests on a set of assumptions that on examination cannot be sustained.
2.      deterrence strategies may have hidden costs (may generate crime in unexpected ways).
Having the general existence of a punishment system does deter but the formulation of criminal law rules within the syst

t interprets statute, not making new law (court can read in what they want to).
Proportionality focuses on the relationship between the gravity of an offense and the punishment for committing it. When dealing with the same kind of crime being committed in different ways, statutes seek proportionality by dividing the offense into degrees.
Three characteristics that help define the relevant comparative spectrum of proportionality:
1.      the length of the prison term
2.      the sentence-triggering criminal conduct
3.      the offender’s criminal history
Policy – The 8th amendment which forbids cruel and unusual punishments, contain a “narrow proportionality principle” that “applies to noncapital sentences.”
Three factors that may be relevant to a determination of whether a sentence is so disproportionate that it violates the 8th Amendment:
1.      the gravity of the offense and the harshness of the penalty
2.      the sentences imposed on other criminals in the same jurisdiction
3.      the sentences imposed on commission of the same crime in other jurisdictions
Nature of an offense depends on the interaction of three elements:
            A. actus reus (voluntary act or culpable omission)
            B. mens rea (defendant’s state of mind at the time of the actus reus)
            C. social harm caused
            A. Actus Reus – Culpable Conduct
                        i) Requirements of Voluntary Action
MPC 2.01 Requirement of Voluntary Act
1. Not guilty unless liability based on voluntary act or omission of act of which capable.
2. Not voluntary acts:
a.       Reflex, seizures
b.      unconsciousness &/or sleep (somnambulism)
c.    hypnosis
d.    Bodily movement not part of conscious or habitual effort of actor
3. Liability cannot be based on an omission unaccompanied by an action (i.e. no requirement to help people) unless
a. omission made sufficient by law defining offense
b. a duty to perform omitted act imposed by law
                        ii) Omissions
                                    Four situations in which the failure to act may constitute breach of a legal duty:
                                                1. where a statute imposes a duty to care for another
                                                2. where on stands in a certain status relationship to another
                                                3. where one has assumed a contractual duty to care for another
4. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.