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Criminal Law
Rutgers University, Newark School of Law
Wefing, John B.

Apprendi v. NJ
Apprendi fired into the home of a black family that had recently moved into a white neighborhood. Finding that Apprendi acted on racial motives, the court sentenced him under a hate crime act providing for stricter punishment. The due process considerations of the 5th Amend., applies to the states thru the 14th Amend., require that any increase in the maximum prison sentence must be based on facts bound by a jury beyond a reasonable doubt.
Prohibits disproportionate sentences as well as barbaric sentences. A criminal sentence must be proportional to the crime defendant was convicted for.
Ewing v. CA –Ewing was sentenced to 25 years to life following his conviction for grand theft under CA’s three-strikes law. (Stole golf clubs as a last offense)
Imposing a sentence of 25 years to life in prison on the conviction of felony grand theft under the three-strike law is not grossly disproportionate and does not violate the 8th Amend’s prohibition on cruel and unusual punishment.
D by preponderance [FED – D by clear and convincing evidence] I
D by clear and convincing
istake of Law
D by preponderance
D by clear and convincing
D by clear and convincing
For each of the elements of the crime, the burdens of production and persuasion are on the prosecution. If the prosecution fails to meet this requirement, the defendant is presumed innocent.
Thirty years ago, judges had total discretion to prescribe penalty, but were found to have been too subjective and too soft. (Discretion-Disparity-Discrimination) In an effort to restrain discretion, legislators began imposing restrictions for sentencing, such as the federal sentencing guidelines, mandatory minimums, Three Strikes laws, presumptive sentencing system.
For affirmative defenses, the defendant takes on the burden of production and the prosecution retains the burden of persuasion, unless the statute defining the defense says otherwise. – who has to produce the evidence.Burden of production – who has to convince the jury. Burden of persuasion
MPC – the burden of persuasion on the extreme emotional disturbance issue is on the defendant and must be determined by a fact finder.Paterson (NY)– – common law – heat of passion excuse is incorporated into the basic murder statute (and therefore an element) so the prosecution has to prove the absence of heat of passion excuse beyond a reasonable doubt.Mullaney
What is an element?
Maldonado- constructive possession is enough with the drug case.
Powell –
Homelessness issue
i) In CA for a murder statute, court defined human being through the common law which said human beings had to be born alive, ie fetus not a human. Legislature then added “or a fetus” to the statute. Court then narrowed that to a “viable fetus.” Reconsidered that decision and today you can be guilty for killing any fetus.
Fetus issue-Keeler case (husband stomped on a pregnant woman and her child was born dead)
Morales – street gang ordinance banned loitering defined as 2 or more people in a public place w/ no apparent purpose. US Supreme Court said impermissively vague, b/c one does not know when they are violating the law. (Due Process issue). Even with guidelines … There seem to be two different approaches why it violated, it didn’t give fair notice, and left too much discretion to the officers carrying out the ordinances.
Egan –
Abandoning common law precedent does not violate due process or constitute an ex post facto law – Rogers v. Tenn (year and day rule) When a statute is plain and unambiguous, a court need only give the law its plain meaning. Common law crimes (nonfeasance case), savings clause, Most jurisdictions have done away with savings clauses. The crime has to be defined in a statute– Apply the common law rule “the child must have been born alive” in order for the defendant to be guilty. – charged w/ offenses that are inevitable for homeless, i.e. sleeping in a park. Could the fact of homelessness be a condition a condition forcing you to commit the crime? Some courts say yes some no. (FL yes)alcoholic. Same thing.. cant be convicted of being an alci.– status crimes – can’t be charged w/ being an addict, 8th Amend. prohibits crimes based on illness or status. Can be charged w/ being under influence though, addict not a defense; vice versa for alcohol.– conduct must be voluntary to be charged. (cops took the drunk out his house and then arrested him for public drunking)– unscheduled landing in NY. To be charged in a jurisdiction, must voluntarily enter that jurisdiction. so subjective that it) leads to disparity in sentencing and sometimes can lead to discrimination.
Accuracy in sentencing – society ought to know what penalty the defendant was getting so they abolished the parole system in Federal prisons.
2) Disparity in sentencing – wanted to get away from the disparity in sentencing between judges or districts. Created presumptive sentencing based on mathematical principles w/ increases or decreases for certain factors.
Example: crime in the 1st degree can be punished from 10 to 20 years, the presumptive sentence would be 15 and to go up or down from that if the judge can set forth facts on why they did that. In order to devia

oubt b/c of Due Process.
held if a fact is an element of the crime, the prosecution has to prove it beyond a
Jury trial right – 7th Am.
Cruel & unusual clause of 8th Am.
it does not violate the 8th Amend. for a state to sentence a three-time offender to life in prison with the possibility of parole. Rummel v. Estelle
The Supreme Court held that the 8th amend. prohibited “a life sentence without possibility of parole for seventh nonviolent felony”. Solem v. Helm
In some rare cases the court can find that the number of years can violate the 8th amendment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
Test for cruel and unusual punishment – evolving standards of a civilized society.
Reviewing courts give substantial deference to the legislature and trial court, but no sentence is per se constitutional.
Three factors relevant in determination of proportionality:
1. The gravity of the offense and the harshness of the penalty
2. The sentences imposed on other criminal in the same jurisdiction
3. Penalties imposed in other jurisdictions for the same violation
– NJ – Look at term imposed: if it adds to the penalty for the underlying offense, it is an element. – if element of crime, needs to be proven by prosecution beyond a reasonable doubt. If sentencing factor, can be determined by the judge.
Legitimate Purposes of punishment
Congress, if not a constitutional issue, can overrule the decisions of the US Supreme Court (de novo review). Sentencing decisions are reviewed now de novo.
Search & seizure clause of 4th Am.
Due process clause of 5th Am.
Due Process requires notice of what one will be charged with; if the court amends a statute to include new situations, it would violate the Constitution, unless applied prospectively.
Increase in the maximum penalties must be charged with an indictment, submitted to a jury and proven beyond a reasonable doubt.
Rehabilitation – to make him better
Deterrence – stop him from committing crimes
a. Specific – the person involved
b. General – others from his example
Retribution – punishment
Incapacitation – protection of society
Ultimate incapacitation – death penalty